author: MONACO, J.

text:
    Frederick Allen GRAFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3667.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.

    James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Frederick Alen Graff appeals from the judgment and sentence arising out of his conviction of eight counts of possession of a variety of controlled substances. He raises two issues for the consideration of this court. The first, which involves the trial court’s denial of his motions to suppress and of his motion for judgment of acquittal, is without merit and will not be discussed. The second involves whether the sentence meted out by the trial court was vindictive. Athough we conclude that it was not, the issue merits discussion.

Graff was tried by jury on eight counts of possession of a variety of controlled substances, including cocaine, LSD, MDMA, ketamine and cannabis, and eight counts of sale and delivery of controlled substances. He was convicted of all of the possession charges (seven third-degree felonies and one misdemeanor), and acquitted of all of the sale and delivery charges. On the following day Graff was scheduled to go to trial on 17 additional drug related charges. Before the trial commenced the State explained to the trial court that the parties had been discussing negotiated pleas to the remaining charges, but had not reached agreement. Each proposal would reduce the pending charges to unlawful possession of controlled substances in exchange for a guilty plea, and would require a prison sentence encompassing the convictions already obtained, and the yet untried charges. The first State proposal was for Graff to serve a total of eight years in prison on all charges with credit for time served. The second offer from the State was to enter an open plea to the court, but with a minimum prison sentence of 31 months, and a maximum sentence of 20 years. Graff rejected both offers and made a counterproposal of incarceration for 50 months, which was rejected by the State.

After determining that the punishment range for the convictions already obtained ranged from non-state sanctions to 36 years of incarceration, the trial judge observed as follows:

THE COURT: Okay. And, you know, he has his constitutional rights to go to trial. But again, once he’s cast his oil out on the water, there’s no bringing it back. So you have a guarantee — well, say a guarantee for an eight-year offer today; 20 — what is it, a cap — open plea with 20 cap?
PROSECUTOR: Yes, sir.
THE COURT: Or just continue to forge ahead, which is his right. He’s obviously been vigorously defended, and last night he got a not guilty on a hand to hand.
And it’s zero to 36 years right now?
DEFENSE ATTORNEY: Basically non-state sanctions as a minimum.
PROSECUTOR: Statutory maximum would be 36 years — seven third degree felonies and a misdemeanor, first-degree misdemeanor.
THE COURT: That certainly gives a lot of room for discussions between the parties but I’m not going to — again, I can only say that if you wait sometimes until the very end, it can just have very negative impacts ...

The trial court listened to further discussion of these matters by the parties, but made no firm commitment regarding its willingness to agree to the proposed sentences. The trial judge did, however, offer a third option, which was to enter an open plea to the court, with no cap and no minimum sentence, have a presentence investigation prepared, and “let the chips fall where they may.” Graff inquired about a possible maximum sentence, to which the court replied:

Please understand, the court cannot prejudge or indicate what the sentence is going to be. Given the posture of this case, that would not be appropriate. But if you are looking for guarantees, I can just say that you have to seek the counsel of your attorney.

After a great deal of yet more discussion Graffs counsel announced that the parties still had not come to a conclusion, but that his client was considering an open plea to the court. The following colloquy then occurred:

THE COURT: Well, I have no problems with accepting the plea. It would be a no-contest plea to all the counts if the state is going to reduce them to straight possession, ordering a PSI. I want to make sure this is abundantly clear for the record and especially to your client: Are you contemplating an open plea to a PSI and letting me make the final call or are you contemplating an open plea to a PSI with the state’s cap of 20 years?
DEFENSE ATTORNEY: If my client was going to plea open, it would be open to the Court, it wouldn’t be relying on the state’s cap. Not that that would — I don’t know what his ultimate decision is going to be. But I would state that the 20-year cap wouldn’t give my client sufficient warm feelings to rely on it.
THE COURT: So you would rather plead open to the Court?
DEFENSE ATTORNEY: If it was going to be an open plea, yes.
THE COURT: If it’s an open plea, I’d order PSI, set sentencing off.

Further discussions proved to be fruitless. Graff was tried and acquitted on all of the additional cases.

At the sentencing hearing a law enforcement officer testified with respect to Graffs prior conviction of possession of 4,000 doses of LSD, having an estimated street value of $20,000. He detailed that Graff was charged only with possession, rather than trafficking, in exchange for agreeing to act as a confidential informant in other cases. According to the officer, as a confidential informant, Graff was able to buy substantial quantities of marijuana, including one purchase amounting to about 50 pounds. Apparently all of the charges that were before the court for sentencing occurred after Graff ceased providing substantial assistance to law enforcement. Finally, the law enforcement officer testified without contemporaneous objection that Graff was the “largest known dealer of ecstasy that has existed in Citrus County,” and that he supplied “a variety of narcotics to feed the addictions of citizens in Citrus County.”

The State recommended a state prison sentence of no less than 20 years. The defense suggested a “fair but minimum” sentence, particularly in view of the acquittals on all but eight of the 33 charges that Graff faced, and pointed out that the sentencing score sheet reflected a sentencing range of any non-state prison sanction to 36 years incarceration.

The trial court at the conclusion of the hearing characterized Graff as a “dangerous person,” and a “menace.” He commented on the variety of drugs possessed by Graff and said that he was “like the candy man” because “you’ve got a little bit of everything.” The court concluded by saying that “society is going to be a lot safer by putting you away for a long time,” and promptly sentenced Graff to seven consecutive five-year prison sentences for the felonies, and a consecutive 11 months, 29 days sentence for the misdemeanor, a total of 36 years. Graff asserts that the sentence was vindictive and in retribution for the exercise of his right to have his other cases tried by jury.

In State v. Warner, 762 So.2d 507 (Fla.2000), the supreme court held that a trial court can legitimately make a pre-trial evaluation of an appropriate sentence for a crime for which a defendant faces trial, and based on the information then available to the judge and the pre-trial evaluation, suggest a plea bargain. Warner cautions, however, that judges must not state or imply that the sentence would vary depending on whether or not the defendant chose to exercise his constitutional right to a jury trial. The high court explained that:

To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.

Warner, 762 So.2d 507, 514 (Fla.2000).

Warner was recently refined further by the supreme court in Wilson v. State, 845 So.2d 142 (Fla. Apr. 10, 2003), where the high court held:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. (Citation omitted). The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

After reviewing the record, and comparing the comments of the judge, counsel and the defendant with the requirements of Warner and Wilson, we have determined that an affirmance of the judgment and sentence is appropriate. Obviously, our sensitivity in this case is heightened because the sentence imposed was the maximum, when the parties were negotiating a less severe sanction. We have concluded, however, that after considering the “totality of the circumstances” encompassed within this case, there is no “reasonable likelihood” that the lengthy sentence was imposed in retaliation for Graffs exercise of his right to have his case considered by a jury.

Here, the trial judge did not initiate the plea negotiations with Graff, and in the final analysis never agreed to be bound by either the eight year proposal or the 31-months-to-20-years open plea. He appears to have committed to no more than an open plea, with sentencing to occur after a pre-sentence investigation was prepared. More importantly, the trial judge did not tie a lighter sentence to a plea bargain, and did not depart from his role as impartial arbiter. Instead, he encouraged Graff to discuss plea bargains with his counsel, in light of the fact that Graff had already been convicted of eight crimes and faced numerous additional charges.

Furthermore, at the sentencing hearing the court considered the information contained in the presentence investigation, and received unobjected to testimony from a knowledgeable law enforcement officer concerning Graffs earlier conviction for possession of 4,000 doses of LSD, and his capacity to purchase large quantities of controlled substances with relative ease. The court’s overtly stated conclusion that Graff was a dangerous person for the community was not unreasonable, nor without foundation, and as a result, we are unable to say that the imposition of a long but legal sentence was erroneous. The judge at no time committed to a sentence less than the maximum, and the sentence actually imposed was within the bounds of the sentencing guidelines.

AFFIRMED.

GRIFFIN and PLEUS, JJ., concur.

      . This court also addressed the issue of vindictive sentencing in Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), rev. granted, 817 So.2d 850 (Fla.2002), where we reiterated the message from the Warner court that if the trial court elects to sentence more harshly than the initially offered sentence, it should at a minimum state on the record the additional facts which emerged during sentencing that changed the court's viewpoint on sentencing, and how those matters factored into the court's decision. Byrd was one of the cases reviewed by the supreme court in Wilson v. State, 845 So.2d 142 (Fla. Apr. 10, 2003).

      . The issue of proportionality has not been raised in this appeal. See Williams v. State, 630 So.2d 534 (Fla.1993); Hale v. State, 630 So.2d 521 (Fla.1993).


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Donald J. LARSON, et al., Appellants, v. EAGLES NEST HOMEOWNERS ASSOCIATION, INC., etc., Appellee.
    No. 5D02-728.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Chris Alan Draper, of Becker & Polia-koff, P.A., Maitland, for Appellants.
    William L. Townsend, Jr., Walton & Townsend, P.A., Palatka, for Appellee.
   GRIFFIN, J.

This is the appeal of an order granting summary final judgment arising out of a homeowners’ association lien foreclosure suit.

Plaintiff below, Eagles Nest Homeowners Association, Inc. [“Association”], filed separate complaints for hen foreclosure against defendants below, Donald J. Larson; David S. Garber; Robert and Patricia Mather; John and Jean Snead; and Bernard and Christine Rouschal [“Homeowners”]. The Association alleged their refusal to pay the full amount of assessments due pursuant to the Amended Rule Governing Rates and Methods of Collection of Dues and Other Special Assessments [“the Rule”]. Attached to the complaint was the Rule, claim of hen and notice of lis pendens. The Rule states in relevant part:

Pursuant to the Grant of Authority under Articles IX and X of the Articles of Incorporation of the [Association], and Article V, Section II, Bylaws of the [Association] ... the Board of Directors ... hereby adopts this Rule for the Collection of Dues and Assessments:
1. This Rule shall apply to ah lands subject, currently or in the future, to Covenants and Restrictions recorded in [public records].
2. Nothing in this Rule shall purport to change the method of determining the amount of maintenance dues or special assessments as determined by chapter 617, Florida Statutes, the Articles of Incorporation or the Bylaws as set forth above; and this rule shall apply only to collection of maintenance dues and special or other assessments.
3. Maintenance dues in the amount of one-fourth (]4) of the annual assessment shall be due quarterly, beginning with January 1, 1999, and continuing thereafter to be due on the first day of April, July, and October for so long as this rule shall remain unmodified. Special or other Assessments shall be due on such date as directed by the proceedings adopting them, and if unpaid by such date, shall be collected as set out below. All such Maintenance Dues or Assessments of whatever kind shall be called “Assessments” in this rule hereinafter.

The remaining provisions detail the proper hen procedure for unpaid assessments. The claim of hen provides that the delinquent assessments are “for North-end roads/taxiways; Boat/Seaplane ramp; Engineering and Permitting for remaining roads/taxiways.” Based upon the parties’ stipulation, the court entered an order consolidating the actions.

The Homeowners filed an answer and affirmative defenses denying all allegations except to admit that they were owners of their respective properties. The affirmative defenses asserted were estoppel, lack of authority by Association to enforce a claim of hen, invalid special assessment and the refusal of the Association to accept the Homeowners’ regular assessments thereby creating a default.

The Association filed a response to the Homeowners’ affirmative defenses, generally denying each defense and, subsequently, filed a motion for summary judgment. The affidavit of Robert Mahanor, the Secretary/Treasurer of the Association, was attached in support of the Association’s motion for summary judgment. Maha-nor’s affidavit set forth that he had personal knowledge of the facts that hens had been filed against Homeowners pursuant to the governing documents of the Association and the Rule for unpaid maintenance fees, that the assessments had not been paid, that some of the Homeowners tendered partial payments which were returned pursuant to paragraph 6 of the Rule, and the amounts owed by each Homeowner. On December 19, 2001, the Association filed a request for admissions that the Rule was genuine and recorded, as well as that the Homeowners had not tendered the full amount of the assessments claimed under the Rule. The Homeowners filed a response to the request for admissions on January 18, 2002. Specifically, the response stated:

1. Denied as to [the Rule’s] authority and enforceability. The [Homeowners] would in good-faith qualify their denial by admitting that the [Rule] attached to the Complaint filed herein is a true and accurate copy of a document recorded within the official records.
2. Admitted. [Homeowners] would in good-faith qualify their admission by asserting that [Association] has refused all regular dues from all [Homeowners] and that not all assessments claimed under the [Rule] are legitimate, valid, or enforceable when reviewed and compared to applicable covenants, law and statute.

The Homeowners also submitted a filing in opposition to the motion for summary judgment. Homeowners asserted that because the Rule was recorded after the Homeowners acquired title and recorded their deeds, the Rule was not applicable to their property. The Homeowners also asserted that the assessments were inconsistent with the number of lots owned by each Homeowner and that the assessments were for improvements not authorized by the Rule. Attached to the filing were the warranty deeds for each Homeowner’s property and an affidavit by Homeowners John and Jean Snead. The affidavit included the following:

5. The portion of the lien claiming for “Delinquent assessments for North-end roads/taxiways'; Boat/Seaplane ramp” were for improvements to PRIVATE property subject to easements owned by unit owners and the Association; and
6. The portion of the lien claiming for assessments for “Permitting for remaining roads/taxiways” is for additional improvements to PRIVATE property subject to easements owned by unit owners and the Association as well as Association property; and
7. Our deeds and restrictions attached thereto are the same or substantially similar to other [Homeowners] in this matter and contain no provision for these types of improvements to property; and
8. We dispute the board rule as enforceable because it is not a part of any of our deeds or the covenants for which we took title to the Eagles Nest property; and
9. We believe, even if valid, the board rule can’t be enforced to collect dissimilar assessments from us than others; All lots are not charged, only some owners are charged and different owners change the names of their lots in order to gain voting rights or to be assessed less than others; And not all owners were required to pay the special assessment; and
10.We dispute the validity of the board rule; It refuses our maintenance dues that we are obligated to pay under the covenants but supposedly permits a lien against us for a special assessment for improvements not authorized under the covenants; We attempted to pay what we believe was authorized and attached to this affidavit is a true and correct copy of correspondence sent by our attorney to the Association’s attorney giving funds on our behalf and the Association’s response, refusing payment.

Attached to the affidavits was a letter from their attorney to the Association’s counsel discussing these issues in somewhat more detail.

The Association filed a memorandum in response to the Homeowners’ filing in opposition to the motion for summary judgment. The memorandum argued that the Homeowners had not produced any evidence to support their assertions. It further states:

The question here is whether there is a valid assessment of [Homeowner’s] property by the [Association], not what the assessment was for. If the purpose of [Homeowner’s] affidavit is to set up an argument that the Rule is invalid, then they have the burden of bringing those facts and that law forward in their affidavit. The Rule cites the governing documents on which it relies for authority — all [Homeowners] would have to do is show, by statute, enabling document or case law, that the Rule is not valid on its face and their case would be made for summary judgment purposes. But, they fail to do exactly that. And, they must bring law or facts before the Court that support their point-just saying they do not like the result is not enough.

A hearing was held, and the trial court entered summary judgment for the Association and awarded attorney’s fees as the prevailing party. We reverse because we conclude that an issue of fact or law was raised in the Snead affidavits that was not dispelled by the Association. Specifically, the record does not demonstrate the absence of any issue concerning the propriety of the assessment for the items objected to by the Homeowners. The Association’s affidavit does not address this point, and we are unable to determine on this record that this defense is devoid of legal or factual merit. We do not say that this issue cannot be determined on summary judgment, merely that the record does not demonstrate the absence of a factual dispute or the Association’s entitlement to judgment on this defense as a matter of law.

The Association urged below, and again on appeal, that the pleadings and affidavits of the Homeowners are “fact-less” and mere “disagreements” that do not present an adequate defense to the assessment. Perhaps the trial court had the benefit of a legal argument not produced here. On appeal, we simply have a continuation of the internecine quarrel between counsel over who has the burden of playing a card first. Unfortunately, when the appellate court cannot see enough of the hand to be sure of the winner, the burden always falls on the summary judgment movant. Reversal is required. If this turns out to have been a waste of the court’s time, other remedies are available.

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.

      . These documents granting assessment and lien authority to the Association have not been included in the record.

      . Renumbered as § 720.305 by Laws 2000, c.2000-258, § 51, eff. July 1, 2000.

      . Paragraph 6 of the Rule provides in relevant part: "[a]ny payment received after the lien is recorded shall be returned unless it is for the full amount then due.”


text:
    John A. CASTIELLO, Appellant, v. SWEETWATER HOMES OF CITRUS, INC., etc., Appellees.
    No. 5D02-2188.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.

      Michael J. Cooper, Ocala, for Appellant.
    Glen C. Abbott, Crystal River, for Ap-pellee.
   MONACO, J.

We have for consideration a final judgment of foreclosure in favor of the appel-lee, Sweetwater Homes of Citrus County, Inc. (“Contractor”), and against the appellant, John A. Castiello (“Owner”). The final judgment forecloses a construction lien on the Owner’s land, and concludes both that the Contractor did not breach a construction contract with the Owner to build a house on that land, and did not file a fraudulent lien. Based on the findings of fact made by the trial judge and the established case law in this district, we affirm.

The adjudicative facts are that the Owner and Contractor entered into a contract to construct a house on the Owner’s real property. When the project went beyond what the Owner believed to be the contracted for construction period, he terminated the Contractor and retained another builder to complete the project. In response, the Contractor filed a construction lien in the amount of $19,762 pursuant to Chapter 713, Florida Statutes, and brought suit to foreclose the lien. The Owner answered and counterclaimed, asserting that the construction lien was fraudulent within the meaning of § 713.31, Florida Statutes, and sought damages for breach of the construction contract.

After a non-jury trial the trial court rendered a detailed final order foreclosing the construction lien for the reduced amount of $2,476. She further concluded that the lien was not fraudulent, and that the Contractor had not breached the contract. In addition, the lower court awarded attorneys’ fees of $26,000, plus costs and interest in favor of the Contractor for a total amount of $30,879. The Owner appeals arguing that the trial court abused its discretion in finding that the lien was valid, and asserting that the trial court’s interpretation of the contract was incor-' rect.

Fraudulent liens are governed by § 713.31, Florida Statutes, which provides in essence that a construction lien is considered to be fraudulent if the lienor (1) willfully exaggerates the amount of the lien claimed; or (2) willfully includes a claim for work not performed or materials not furnished for the property upon which the lienor seeks a lien; or (3) compiles the lien with such willful and gross negligence as to amount to a willful exaggeration. Delta Painting, Inc. v. Baumann, 710 So.2d 663 (Fla. 3d DCA 1998); Hobbs Constr. & Dev., Inc. v. Presbyterian Homes of the Synod of Fla., 440 So.2d 673 (Fla. 1st DCA 1983). If there is a minor mistake or a good faith dispute as to the amount owed, however, the statute precludes the finding of a fraudulent lien. See § 713.31(2)(b), Florida Statutes; Delta Painting, 710 So.2d at 664. Thus, a disagreement regarding the amount of money owed does not convert a good faith dispute into a fraudulent lien. See Scott, P.E. v. Rolling Hills Place, Inc., 688 So.2d 937, 939 (Fla. 5th DCA 1996).

In Stevens v. Site Developers, Inc., 584 So.2d 1064, 1065 (Fla. 5th DCA 1991), this court held similarly that “the amounts claimed as a mechanic’s lien and the amount finally allowed by the trial judge do not alone determine the hen to be fraudulent as a matter of law.” We pointed out there that the trial judge is invested with the discretion to determine the intent and good or bad faith of the lienor in stating the amount of the hen claimed. Here, the trial judge specifically found that the hen was not “wilfully exaggerated,” and that there was “no substantial, competent evidence that the Plaintiffs lien as filed in this matter was not submitted in good faith.” The trial judge then said that “the Court finds that the Plaintiffs Lien as filed in this matter was not fraudulent.”

It is inappropriate for this court to substitute its judgment for that of the trial court. Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla. 5th DCA 1996). The trial judge, as she was entitled to do, chose to give greater weight to witnesses favoring the Contractor and less weight to those favoring the Owner. We will not second guess that determination.

We turn next to the question of whether the lower court misinterpreted the contract. After reviewing the contract de novo we do not believe that there was any material error in the lower court’s interpretation. The issues that the Owner truly asks us to focus upon concern the recognition by the trial court of certain excusable delays in extending the time for completion of the contract. Each of the determinations, however, was heavily dependent upon the credibility of the witnesses. As there is competent substantial evidence to support the findings of the trial court, we find no error in this regard éither.

AFFIRMED.

SAWAYA and PLEUS, JJ., concur.


author: GREEN, OLIVER L., Senior Judge.

text:
    Jennifer PITT, Appellant, v. David H. BENZENHAFER, Appellee.
    No. 2D02-3876.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.

      Victor R. Smith of The Smith Law Group, P.A., Lake Alfred, for Appellant.
    Cathy L. Lucrezi of Cathy L. Lucrezi, P.A., Fort Myers, for Appellee.
   GREEN, OLIVER L., Senior Judge.

Jennifer Pitt (the Former Wife) appeals an order of the Lee County circuit court denying her motion to dismiss or transfer David J. Benzenhafer’s (the Former Husband) petition for modification of child custody to Polk County, where the final judgment of dissolution of marriage was entered. Because the court erred in its application of section 61.13(2)(e), Florida Statutes (2001), we reverse.

The parties were divorced pursuant to a final judgment entered in Polk County. The final judgment named the Former Wife as the primary residential parent for the parties’ minor child. The Former Husband then relocated to Lee County. The Former Wife testified that she never changed her Polk County residency, even though she moved to Utah with her new husband. Subsequent to the filing of the petition for modification, the Former. Wife and child returned to Polk County to reside in the former marital home. The child is enrolled in the Polk County school system.

Section 61.13(2)(c) provides that “[t]he circuit court in the county in which either parent and the child reside or the circuit court in which the original award of custody was entered have jurisdiction to modify an award of child custody. The court may change the venue in accordance with s. 47.122[, Florida Statutes].” Here, the Lee County circuit court did not have jurisdiction because the testimony showed that the child had never resided in Lee County. The Polk County circuit court is the only proper jurisdiction in which to file a petition to modify child custody.

Accordingly, we reverse and remand with directions to the trial court to transfer the matter to Polk County.

SILBERMAN and CANADY, JJ„ concur.


author: PER CURIAM.

text:
    Stephen F. ALVAREZ d/b/a S & J Alvarez Farms, Appellant, v. MERRIAM-CALLAHAN INSURANCE AGENCY, INC., a Florida Corporation, Appellee.
    No. 1D02-1413.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Linda L. Winchenbach, of Moody & Salzman, P.A., Gainesville, for Appellant.
    Robert E. O’Quinn, Jr., and Pamela Lynde Bower, Jacksonville, for Appellee.
   PER CURIAM.

The transferee court did not have authority under Florida Rule of Civil Procedure 1.060(c) to dismiss the action. Furthermore, dismissal under the circumstances presented in this case constituted an abuse of discretion. Here, the transfer fee had been paid immediately after appellant’s attorneys became aware of the problem, only a few days after the 30-day period provided in the rule and several weeks before the motion to dismiss was filed, and there was no suggestion that appellee was in any way prejudiced by the late payment of the transfer fee. Cf., Burke Co. v. U.S. Telephone Co., 571 So.2d 33 (Fla. 3d DCA 1990), review denied, 576 So.2d 285 (Fla.1991) (affirming trial court’s refusal to grant dismissal under similar circumstances).

The order of dismissal is REVERSED, and the case is REMANDED to the trial court for further proceedings.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Mark McFEELY and Lisa McFeely, individually and as parents and natural guardians of their son, Patrick McFeely, a minor, Appellants, v. PRUDENTIAL HEALTHCARE PLAN INC., d/b/a Prudential Healthcare HMO and d/b/a Prucare HMO and d/b/a Prudential Health Care System and d/b/a Prudential Health Care System of South Florida and The Prudential Insurance Company of America d/b/a Prucare and D/B/A Prudential Health Care System and d/b/a Prudential Health Care System of South Florida, Appellees.
    No. 1D02-1942.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Charles B. Patrick, P. A., Miami and James C. Blecke of Deutsch & Blumberg, P.A., Miami, for Appellants.
    James M. Kaplan and Thomas M. Hart-wig, of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Miami, attorneys for Prudential Healthcare Plan Inc. and the Prudential Insurance Company of America, Miami; Jeptha F. Barbour of Marks, Gray, Conroy & Gibbs, Jacksonville, for Julie Buckley, M.D.; Charles T. Shad, Jacksonville, for Jacksonville Health Care Group, for Appellees.
   PER CURIAM.

On behalf of their son, Patrick, Mr. and Mrs. McFeely brought a medical malpractice action against appellees Prudential Healthcare Plan, Inc. and the Prudential Insurance Company of America (Prudential). The question on this appeal is whether Prudential may be ultimately held responsible for the alleged negligence of a physician, Dr. Julie Buckley, who was employed by the Jacksonville Health Care Group (JHCG) and worked at a PruCare clinic. In the final summary judgment on appeal, the trial court observed, “while the exhibits, depositions, etc., indicate a substantial amount of control as to the business arrangement between Prudential and JHCG, there is no evidence regarding the exercise of control by Prudential regarding the medical care, treatment and services provided, particularly as to these plaintiffs.” The trial court entered final judgement, concluding that Dr. Buckley was not the agent of Prudential. We reverse.

The trial court appears to have relied almost entirely upon the case of Villazon v. Prudential Health Care Plan, Inc., 794 So.2d 625 (Fla. 3d DCA 2001), review granted, 800 So.2d 617 (Fla.2001), to support its ultimate decision that Prudential would have no vicarious liability for the alleged negligence of Dr. Buckley. The Florida Supreme Court has now quashed Villazon. See Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 854, 2003 WL 1561528 (Fla. Mar. 27, 2003). The supreme, court in Villazon stated: “Here, the record evidence reflects significant indicia of PruCare’s right to control the means by which medical services were rendered by Member Physicians to Member Patients. The facts peculiar to each case must govern the ultimate disposition.” Id. 843 So.2d at 854.

The facts pertinent to agency in this case are different than the facts present in Villazon. Nevertheless, our review of the record, particularly the Physician Work Rules, the Letter of Understanding, and the JHCG Physician’s Salary Plan (signed off on by Prudential), suggests to us that this record will support an inference of control sufficient to present a jury question on agency under Villazon. In Florida law, agency status is a question of fact, except in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts. See Robinson v. Linzer, 758 So.2d 1163 (Fla. 4th DCA 2000) (holding inconsistent contractual terms create issue of fact as to agency relationship between a hospital and a physician); Theodore ex rel. Theodore v. Graham, 733 So.2d 538 (Fla. 4th DCA 1999) (stating a genuine issue of material fact existed as to whether a physician was controlled or subject to control of Department of Health and Rehabilitative Services); Robbins v. Hess, 659 So.2d 424, 427 (Fla. 1st DCA 1995) (“Generally, the issue of agency or apparent agency is a question of fact to be determined by a jury. The question can be resolved by summary judgment in only those cases where the evidence is capable of but one determination.”).

REVERSED and REMANDED for further proceedings.

BOOTH, WOLF, and KAHN, JJ., CONCUR.


text:
    Jovita SANCHEZ, Appellant/Cross-Appellee, v. WISE RECYCLING, INC., and Cigna Insurance, Appellees/Cross-Appellants.
    No. 1D02-443.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Michael H. Stauder of Michael H. Stau-der, P.A., North Palm Beach, for Appellant/Cross-Appellee.
    Scott A. Silver and John G. Savoca of Davis, Silver & Levy, West Palm Beach, for Appellees/Cross-Appellants.
   PER CURIAM.

In this workers’ compensation case, the claimant failed to show “a causal connection between ... her injury and ... subsequent wage loss.” Interim Servs. v. Levy, 843 So.2d 915, 916, 2003 WL 366722 (Fla. 1st DCA Feb.21, 2003). Therefore, we AFFIRM the JCC’s denial of temporary benefits for the periods of March 13, 2000, through March 25, 2000, and April 16, 2000, through April 11, 2001. For the same reason, we find merit in the point raised on cross-appeal and REVERSE the award of temporary partial disability benefits for the period of March 26, 2000, through April 15, 2000.

ERVIN, KAHN, and PADOVANO, JJ., concur.


author: WOLF, J.

text:
    Odell BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0355.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, J.

Appellant raises two issues on appeal: I) Whether the trial court erred in resentenc-ing appellant pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), without counsel, and II) Whether the conviction in count III for retaliating against a witness could be properly enhanced for use of a firearm when use of a firearm was not alleged in the information. We determine that appellant is correct as to issue I and remand for resentencing. See McDonald v. State, 679 So.2d 1273 (Fla. 1st DCA 1996) (holding that defendant is entitled to counsel at resentencing after prevailing on post-conviction motion). We decline to address issue II, as it was not raised in the trial court.

BARFIELD and DAVIS, JJ., concur.


author: KAHN, J.

text:
    Detroit TIGERS and Gulf Insurance Company, Appellants, v. Jose CASTILLO, Appellee.
    No. 1D02-4374.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Mark A. Faris of Hinshaw & Culbertson, Ft. Lauderdale, for Appellants.
    Richard R. Roach, Lakeland, for Appel-lee.
   KAHN, J.

The Detroit Tigers (“E/C”) appeal the denial of their motion to dismiss by the Judge of Compensation Claims (“JCC”). Because we find that the JCC properly denied the motion to dismiss and gave the E/C an opportunity to schedule an eviden-tiary hearing on the issue of venue, we affirm.

Appellant’s brief correctly states that a claim of improper venue may be raised through a motion to dismiss. See Fla. R. Civ. P. 1.140(b); Kinetiks.Com, Inc. v. Sweeney, 789 So.2d 1221, 1223 (Fla. 1st DCA 2001). However, it is apparent from the record that the E/C, having raised the venue dispute and scheduled a hearing on their motion to dismiss, were unprepared at that hearing to prove the claim of improper venue. The JCC twice instructed counsel that if he wanted an evidentiary hearing on venue, he would have to schedule one.

An order by this court directing the JCC to schedule an evidentiary hearing on the E/C’s motion is unnecessary because the E/C already has liberty to request one. Accordingly, we find that the JCC did not abuse his discretion by denying the E/C’s motion to dismiss and instructing the E/C to schedule an evidentiary hearing. See Air South, Inc. v. Spaziano, 547 So.2d 314, 315 (Fla. 4th DCA 1989). Instead of seeking a hearing, E/C took this appeal.

AFFIRMED.

ERVIN and PADOVANO, JJ., concur.


text:
    PAGENET, INC. f/k/a/ Paging Network of Tennessee, Inc., Appellant, v. The STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D03-0859.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Allen H. Libow, David R. Carls, and Eric J. Stockel, of Libow & Muskat, Boca Raton, for Appellant.
    Charles Catanzaro, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to the Court’s order of March 18, 2003, we dismiss this appeal for lack of jurisdiction. The order on appeal, which dismissed appellant’s complaint without prejudice to its right to file an amended complaint that corrects the identified defects, did not end the judicial labor effectuating a termination of the cause. See Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). Furthermore, the order did not become a final order by purporting to be a dismissal with prejudice if the appellant failed to comply with any of the options provided in the order for filing an amended complaint. Ponton v. Gross, 576 So.2d 910 (Fla. 1st DCA 1991). The dismissal is without prejudice to appellant’s right to appeal when a final order is rendered in the trial court.

The motion entitled “Appellee’s Motion for Order Prohibiting Appellant from Introducing into the Record on Appeal Materials not Filed in the Lower Tribunal,” filed on April 9, 2003, is denied as moot.

BOOTH, WOLF and KAHN, JJ., concur.


text:
    KOW, INC. d/b/a High Energy Weight Control Centers, Appellant, v. WEIGHT CONTROL CENTERS, INC., and Jean McWhirter, Appellee.
    No. 1D03-1042.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Lawrence P. Ingram of Phelps Dunbar, LLP, Tampa, Mary M. Callaway, Pensacola, and T. Sol Johnson of Johnson, Green, Miller and Gibson, Milton, for Appellant.
    George R. Mead, II, of Moore, Hill and Westmoreland, Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 27, 2003, the Court has determined that the order on appeal does not fall within the scope of Florida Rule of Appellate Procedure 9.130(a)(3)(B). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. The appellant’s motion to consolidate this appeal with the appeal in case number 1D03-1044 is denied.

DISMISSED.

BOOTH, WOLF, and KAHN, JJ., concur.


text:
    KOW, INC. d/b/a High Energy Weight Control Centers, Appellant, v. SUE’S HI-ENERGY WEIGHT CONTROL CENTER and Sue Wise, Appellee.
    No. 1D03-1044.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Lawrence P. Ingram of Phelps Dunbar, LLP, Tampa, Mary M. Callaway, Pensacola, and T. Sol Johnson of Johnson, Green, Miller and Gibson, Milton, for Appellant.
    George R. Mead, II, of Moore, Hill and Westmoreland, Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 27, 2003, the Court has determined that the order on appeal does not fall within the scope of Florida Rule of Appellate Procedure 9.130(a)(3)(B). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

BOOTH, WOLF, and KAHN, JJ., Concur.


text:
    Antonio V. ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-977.
    District Court of Appeal of Florida, Third District.
    May 7, 2003.
    Antonio V. Alvarez, in proper person.
    Charles J. Crist, Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).


text:
    Julio Cesar WONG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-803.
    District Court of Appeal of Florida, Third District.
    May 7, 2003.
    Robbins, Tunkey, Ross, Amsel, Raben, Waxman & Eiglarsh, P.A., and Benjamin S. Waxman, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for Appellee.
    Before JORGENSON and FLETCHER, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Defendant appeals from the summary denial of his motion for postconviction relief. We affirm. The transcript of the plea colloquy from August 12, 1999, unequivocally demonstrates that the trial court explicitly informed defendant that by accepting the plea, he could face deportation. Accordingly, defendant’s postconviction claim was untimely filed and no evi-dentiary hearing was required.

AFFIRMED.


author: HARNAGE, HENRY H., Associate Judge.

text:
    Roberta SANTINI, M.D., Appellant, v. CLEVELAND CLINIC FLORIDA, a not for profit corporation, Appellee.
    No. 4D01-3486.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.

      Bartley C. Miller of Bartley C. Miller & Associates, P.A., Fort Lauderdale, and Justin M. Senior of Law Offices of Justin M. Senior, P.A., Gainesville, for appellant.
    Ace J. Blackburn, Jr., and Warren B. Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for appellee.
   HARNAGE, HENRY H., Associate Judge.

Dr. Roberta Santini appeals a Final Summary Judgment dismissing her state charge of discrimination brought under the Florida Civil Rights Act.

The issues are whether Dr. Santini properly filed her sex-based discrimination charge with the Florida Commission on Human Relations, and whether the doctor’s state discrimination claim was properly dismissed for her failure to exhaust administrative remedies. Concluding that Dr. Santini did appropriately file her state claim and that there were no more administrative prerequisites, we reverse allowing her to proceed directly in circuit court with the state discrimination claim.

RELEVANT FACTS

Dr. Roberta Santini directly filed a charge with the Broward County Human Rights Division [the local agency] on March 3, 1997. The charge alleged that the Cleveland Clinic Florida, Inc. [“the Clinic”] discriminated against her on the bases of her sex and age, in violation of: (1) Title VII of the federal Civil Rights Act of 1964, as amended [the federal law]; (2) the Florida Civil Rights Act, §§ 760.01-11, Fla. Stat. (1997), [the state law]; and (3) Article II, Section l(a)(a) of the Broward County Human Rights Act [the local law].

The doctor maintained that, despite her high productivity as an associate staff-diagnostic radiologist, the Clinic discriminated against her because of her sex and age. She specifically charged that her differential treatment related to “work assignments, evaluations, promotions, and benefits.”

On the face of the filed charge, Dr. Santini checked the box which provided, “I want this charge filed with both the EEOC [the federal agency] and the State or local Agency, if any.” A cover letter from Dr. Santini’s attorney accompanying the charge provided:

Enclosed please find a copy of the executed charge of discrimination filed on behalf of Roberta Santini against Cleveland Clinic Florida. Please be sure that this charge is also filed with the Florida Commission on Human Rights and the Miami EEOC. I notice that on the charge of discrimination it merely states [BCHRD] as the State or local agency. As such, I am requesting that the Florida Human Rights Commission also be notified of this charge. If I need to submit the charge directly to the Florida Human Rights Commission, please notify me immediately so I may do so.

The local agency transmitted a copy of her charge to the Florida Commission on Human Relations [the state agency]. Although the latter’s records did not reflect an actual date stamp of receipt, there is no dispute that the state agency received the claim. The Customer Service and Records Unit manager testified that as a matter of practice the state agency should have received it in Tallahassee shortly after March 11,1997.

After Dr. Santini filed her charge with the local agency she received a total of three items of correspondence. First, the federal agency forwarded a March 11, 1997, letter stating her case had been assigned charge numbers by the local and federal agencies. The letter also provided that the local Broward agency would investigate and resolve her charge under the federal statute and that she would be entitled to request a Substantial Weight Review of the local agency’s final determination; otherwise, the federal agency would generally adopt the local agency’s findings.

On August 5, 1997, Dr. Santini also received an Order of Determination from the local agency which concluded that there was no reasonable cause to believe that there was a violation of the local or federal anti-discrimination law. The Order further stated, “This determination concludes the Broward County Human Rights Division’s processing of the subject charge. The Charging Party has twenty (20) days to file a Petition for Re-determination to the Broward County Human Rights Board.” Dr. Santini never filed a Petition for Re-determination and her claim with the local agency was dismissed. Dr. Santi-ni never requested a substantial weight review by the federal agency of the local agency’s determination. Significantly, the local Broward agency’s Order of Determination made no mention of the state level claim under the Florida Civil Rights Act.

Finally, and as required by the federal statute, on January 29, 1998, the federal agency sent Dr. Santini a right to sue letter [Form 161] which provided that it had summarily adopted the findings of the local (Broward) agency. The letter fur ther instructed that, under the federal law, Dr. Santini had the right to bring a federal discrimination suit in federal or state court within ninety (90) days.

Dr. Santini never received a letter of determination from the state agency. Consequently, she never requested an administrative hearing under the Florida Civil Rights Act and instead filed this lawsuit in Broward Circuit Court in October of 1999. Pertinent to the issues before this court, the Clinic moved for summary judgment in December of 2000 alleging that Dr. Santini had failed to properly initiate procedures at the state level at all, and thus had failed to exhaust her administrative remedies. The trial court initially denied the Clinic’s motion for summary judgment.

However in July of 2001, the Clinic renewed its motion for summary judgment, relying on Woodham v. Blue Cross & Blue Shield of Florida, Inc., 793 So.2d 41 (Fla. 3d DCA 2001), in which the Third District Court found that a “no reasonable cause” determination by the federal agency constituted a “no reasonable cause” finding by the state agency. The Clinic argued to the trial court and before us at oral argument that Dr. Santini’s claim was barred because her receipt of the federal agency’s “no cause” determination likewise constituted notice of the Florida Civil Rights Act “no cause” determination. She therefore had 35 days from that receipt in which to file her administrative appeal (which, admittedly, she did not). This time the trial court granted the renewed motion for summary judgment — expressly relying on the Third District’s holding in Woodham, 793 So.2d 41. The trial court concluded that Dr. Santini had failed to exhaust her state administrative remedies under Florida’s Chapter 760 by failing to take an administrative appeal from the federal agency’s “no reasonable cause” determination, concluding the federal determination acted as a determination on behalf of the state agency.

ANALYSIS

Dr. Santini properly filed her discrimination charge with the Florida Commission on Human Rights

The Clinic first argues that Dr. Santini did not properly file her charge with the state agency through an entity authorized by statute. The Clinic maintains that Dr. Santini, instead, only filed her charge with the local agency which was not authorized by statute to file the charge on her behalf at the state level. The statutory language instructs otherwise.

Under section 760.11(1), Florida Statutes, “Amy person aggrieved by a violation of § 760.01-760.10 may file a complaint with the state commission within 365 days of the alleged violation, naming the employer ... responsible for the violation and describing the violation.... The commission, a commissioner, or the Attorney General may in like manner file such a complaint.” By its plain language, section 760.11(1) allows a filing with the state agency by the “person aggrieved.” The definition section of the statute, specifically section 760.02(6), Florida Statutes, provides “ ‘Person’ includes an individual, association, corporation ... any other legal or commercial entity; the state; or any governmental entity or agency.”

It is indisputable that the local Broward agency is a governmental entity or agency and, therefore, authorized under section 760.11(1), Florida Statutes, to file a complaint with the state agency. In fact, the state agency’s Customer Service and Records Unit manager testified that charges are often filed with it by other agencies and, for the state agency’s purposes, it considers a claim “filed just the same” whether received from an individual or another agency. Therefore, when the local agency forwarded a copy of Dr. Santini’s complaint to the Florida Commission, it was “filed” with the state agency. We conclude that Dr. Santini properly filed her state discrimination complaint through the local agency.

Dr. Santini’s state discrimination charge was improperly dismissed for failure to exhaust her state administrative remedies.

We next consider whether Dr. Santini’s state discrimination charge under the Florida Civil Rights Act of 1992 was properly dismissed for failing to exhaust her state administrative remedies.

(1) The Florida Statute’s administrative process

When the Florida Commission on Human Relations determines there is reasonable cause to believe a violation has occurred, the claimant may either (1) bring a civil action in Circuit Court, or (2) request an administrative hearing. § 760.11(4), Fla. Stat. If the Commission determines that there is no reasonable cause under the state statute, it will dismiss the complaint and the claimant may then request an administrative hearing review within 35 days of the Commission’s determination. § 760.11(7), Fla. Stat.

Alternatively, if the Commission, within 180 days of the filing of the complaint, fails either to conclude or to determine whether there is reasonable cause on any complaint, an aggrieved person may proceed as if the commission determined that there was reasonable cause. § 760.11(8) Fla. Stat. Significantly, section 760.11(3) requires that “when the commission determines whether or not there is reasonable cause, the commission by registered mail shall promptly notify the aggrieved person and the respondent of the reasonable cause determination, the date of such determination, and the options available under this section.” (emphasis supplied.)

(2) Legal Considerations

First, it is important to note that a claim made under one of the civil rights statutes is not the same cause of action as a claim made under another. The claims arise from separate rights recognized and protected by different sovereigns. Andujar v. Nat’l Prop. and Cas. Underwriters, 659 So.2d 1214, 1217 (Fla. 4th DCA 1995). Both the local and the federal agency levels apply their own civil rights legislation to determine, under their separate acts, whether a civil rights violation has occurred. Here, resolutions of both federal and local claims were based on the August 5,1997 Order of Determination of the local agency.

The claim made under the state statute is an entirely separate cause of action. The state’s notice of any determination, as to whether reasonable cause exists for finding a violation of a complainant’s civil rights under the Florida Civil Rights Act, must be provided within 180 days of the filing of the state complaint. § 760.11(3), Fla. Stat. If the state fails to provide timely notice within 180 days, the aggrieved person may proceed to Circuit Court. §§ 760.11(4),(8), Fla. Stat.

However, the Clinic would further have us infer that the federal agency’s Form 161 provided Dr. Santini with an adequate “no cause” determination of the state claim. The Florida Supreme Court recently considered (after this trial judge’s ruling) whether the federal Form 161 Dismissal and Notice of Rights received by a civil rights claimant satisfied the requirements of notice of a “no cause” determination under Florida’s Civil Rights Act. In Woodham, the Court settled this issue by focusing on the Legislature’s requirement in § 760.01(3), Fla. Stat., that the protections of this statute are to be “construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved.” Woodham, 829 So.2d at 894.

The Supreme Court reasoned that such construction is based on the remedial purposes of the Florida Civil Rights Act and requires a “specific finding of lack of reasonable cause before an individual is stripped of her right of access to the courts for redress against discrimination.” Id. at 896 (citing Cisko v. Phoenix Med. Prods., Inc., 797 So.2d 11, 13 (Fla. 2d DCA 2001)); cf. White v. City of Pompano Beach, 813 So.2d 1003 (Fla. 4th DCA 2002) (federal Form 161 failed to satisfy the notice requirement of § 760.01(3) because the federal form did not determine if such reasonable cause existed.) Under this public policy purpose the Court stressed that “because § 760.11(7) purports to abridge an individual’s right to access to the courts, that section must be narrowly construed in a manner that favors access.” Woodham, 829 So.2d at 897. The Supreme Court concluded that “the language of § 760.11(7) requires a specific determination ‘that there is no reasonable cause’ to believe a violation occurred” Id. (emphasis supplied).

The Clinic nonetheless argues that this fact setting is different in that the federal agency here made an explicit “no cause” determination which the federal agency did not do in Woodham. But, here also the federal agency determined only that it was adopting the local determination that no reasonable cause existed under the Federal act. Significantly, neither the federal or local agency made a determination as to the state civil rights claim. Under the Florida Supreme Court’s rationale in Woodham (and our holding in White) we conclude that the federal Form 161 is not adequate notice to Dr. Santini that her state discrimination claim had been determined so as to require her to file a lawsuit in state court within thirty-five days.

Finally, we find that the federal Form 161 provided only further options under the federal statute and did not provide the legislatively-required due process notice information to Dr. Santini of the state statutory options available to her when the local Broward agency dismissed her complaint. As the Florida Supreme Court required in Woodham:

... the Florida Commission on Human Rights [must] inform the claimant of the “possible next steps that can be taken.”

Id. at 897. To hold to the contrary would be in direct conflict with and would ignore the statutory mandate of section 760.11(3), Florida Statutes, which requires notice of both the decision, and the process.

CONCLUSION

For the foregoing reasons, we hold that the trial court erred in dismissing Dr. San-tini’s civil rights action for sex discrimination under the Florida Civil Rights Act. We therefore reverse and remand to the lower court, allowing Dr. Santini to proceed directly in Circuit Court with her civil cause of action.

REVERSED and REMANDED.

GUNTHER and WARNER, JJ., concur.

      . Dr. Santini subsequently filed an action in the federal Southern District of Florida, claiming the Clinic had discriminated against her in .violation of Federal and state law. Summary judgment was entered for the Clinic on the federal claims due to their untimeliness; however, the federal court declined to exercise pendant jurisdiction over the state civil rights claims and dismissed them.

      . Subsequently reversed in Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So.2d 891 (Fla.2002).

      . We do not address whether or not Dr. San-tini's charge, directly filed with the local agency, would have been automatically deemed filed with the state agency by virtue of a, workshare agreement. On the record developed below, it is unclear what form of workshare agreement existed, if any, between the local Broward agency and the Florida Commission during the pertinent time frame. The existence (or nonexistence) of a works-hare agreement did not play any role in the lower court's ruling. We find consideration of this issue unnecessary where the record reflects Dr. Santini’s charge was actually filed with the Florida Commission.

      . The aggrieved person then would have four years to sue under section 95.11(3)(f), Florida Statutes (1999). See Joshua v. City of Gainesville, 768 So.2d 432, 439 (Fla.2000).


author: FARMER, J.

text:
    Jason Young MILLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D01-4274, 4D02-2329.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ira D. Karmelin, Special Assistant Attorney General, West Palm Beach, and Michael J. Neimand, Senior Assistant Attorney General, Fort Lauder-dale, for appellee.
   FARMER, J.

The state concedes that the trial court improperly deprived the defendant of credit for the 185 days that he spent in jail prior to the imposition of his sentence. We hold that the trial court also erred in refusing to grant the defendant credit for the ninety-eight days he spent in jail after his sentence was imposed and before he was placed on probation. See, e.g., Whitehead v. State, 677 So.2d 40, 40 (Fla. 4th DCA 1996) (“In being sentenced on revocation of probation, a probationer is entitled to credit for time served in county jail as a condition of the probation.”) We reverse and remand for the trial court to credit the defendant with 283 days toward his sentence.

HAZOURI and MAY, JJ„ concur.


author: SHAHOOD, J.

text:
    Bridgett MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1846.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm appellant’s conviction on the charge of possession of cocaine with intent to deliver. Appellant raises as her final point on appeal that the trial court erred in sentencing her in violation of Rule 3.720, Florida Rules of Criminal Procedure. Ap-pellee concedes, and we agree, that the trial court reversibly erred in sentencing appellant without a sentencing hearing.

Appellant in this case, immediately after being found guilty by a jury, requested the trial court to “order a sentencing hearing” in a few weeks to enable the court to “entertain submissions and evidence by the parties that are relevant to the sentence.” The court denied appellant’s request and proceeded to immediately sentence appellant.

Florida Rule of Criminal Procedure 3.720 provides:

Rule 3.720. Sentencing Hearing
As soon as practicable after the determination of guilt and after the examination of any presentence reports, the sentencing court shall order a sentencing hearing. At the hearing:
(a) The court shall inform the defendant of the finding of guilt against the defendant and of the judgment and ask the defendant whether there is any legal .cause to show why sentence should not be pronounced....
(b) The court shall entertain submissions and evidence by the parties that are relevant to the sentence.

(emphasis added.)

As noted by appellee in this case, in State v. Scott, 439 So.2d 219 (Fla.1983), the Florida Supreme Court held that:

Unarguably, the prisoner to be sentenced is facing a critical stage of the criminal proceedings, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful Rule 3.850 challenge. Thus, a sentencing hearing is mandatory [under] Florida Rule of Criminal Procedure 3.720....

Accord Collins v. State, 839 So.2d 862, 864 (Fla. 4th DCA 2003).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RE-SENTENCING.

TAYLOR and MAY, JJ., concur.


text:
    Orit SIMHONI, as Guardian of the property of Benjamin Schleider, Appellant, v. Linda CHAMBLISS, Esq., Appellee.
    No. 4D02-425.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.

      Steven M. Greenberg of Steven M. Greenberg, P.A., Pembroke Pines, for appellant.
    No brief filed for appellee.
   PER CURIAM.

The trial court’s order awarded $17,865.00 in attorney’s fees for the representation of a guardianship. The order did not make specific findings regarding the number of hours spent by the attorney in the representation and a reasonable hourly fee.

It is well-settled that an award of attorney’s fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. See Zucker v. Zucker, 774 So.2d 890, 893 (Fla. 4th DCA 2001); Tutor Time Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000); Rodriguez v. Campbell, 720 So.2d 266, 267 (Fla. 4th DCA 1998); Guardianship of Halpert v. Rosenbloom, 698 So.2d 938, 939 (Fla. 4th DCA 1997). The trial court did not state on the record the number of hours and the rate it used to arrive at the final award. But cf. Blits v. Renaissance Cruises, Inc., 647 So.2d 971, 972 (Fla. 4th DCA 1994) (holding that where court stated on record it would award $11,250 and that it derived this number by multiplying seventy-five hours times $150.00 an hour, reversal was not required, despite the lack of findings in the written order).

Addressing the other point raised by appellant, we note that appellant did not object to appellee’s failure to call an expert at the fees hearing, thereby failing to preserve that issue for appellate review. The record does not support appellant’s claim that the trial court denied appellant an opportunity to present her testimony; the trial court did not want to hear un-sworn arguments, preferring “testimony ... under oath.”

We reverse and remand to the trial court for the entry of a written order containing the necessary findings. The court need not hold a new evidentiary hearing if it is able to enter a written order from its notes or a transcript of the original fees hearing.

POLEN, C.J., KLEIN and GROSS, JJ„ concur.


author: STEVENSON, J.

text:
    Lynda SCHNAGEL, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D02-2961.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.

      John G. Crabtree and Thomas M. Pflaum of John G. Crabtree, P.A., Key Biscayne, and John W. Conness of John W. Conness, P.A., Fort Lauderdale, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

The instant appeal stems from the trial court’s entry of final summary judgment in favor of the defendant insurer, State Farm Mutual Automobile Insurance Company, and against its insured, Lynda Schnagel. We reverse.

Schnagel’s 1996 Lexus was insured by State Farm and, in April 2000, Schnagel reported the car stolen. State Farm believed that Schnagel was somehow involved in the theft and, pursuant to the policy’s cooperation clause, demanded that Schnagel provide it with a variety of documents, including financial records. Schnagel provided some, but not all of the requested documents. Since Schnagel acknowledged that she had not provided all of the requested documents, the trial judge concluded that she had breached the policy’s cooperation clause and, consequently, entered judgment in favor of State Farm. This was error. Where, as here, an insured cooperates to some degree, the issue of whether there has been a material breach of the insurance contract is one for a jury — not the trial judge. See Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). Accordingly, we reverse the final judgment in favor of State Farm and remand for further proceedings.

REVERSED and REMANDED.

STONE and WARNER, JJ., concur.


text:
    John L. GADSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3094.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

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


author: SILBERMAN, Judge.

text:
    Albert WESNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-567.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    Lee Adam Cohen of McDonald & Shearer, Lakeland, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Albert Wesner appeals the denial of his motion for modification of probation. The trial court’s order is not appealable, see Baker v. State, 746 So.2d 469 (Fla. 2d DCA 1997), but it is subject to review under this court’s certiorari jurisdiction. See Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996); Smith v. State, 471 So.2d 1347, 1348 (Fla. 2d DCA 1985), approved sub nom. Abreu v. State, 660 So.2d 703 (Fla.1995). Because the basis of the trial court’s denial was its mistaken belief that it did not have the legal authority to consider the motion, we treat this appeal as a petition for writ of certiorari and grant the petition.

In February 2001 Wesner entered a guilty plea to the offense of lewd act on a child, a violation of section 800.04, Florida Statutes (2000), in exchange for a sentence of fifteen years of sex offender probation. The record reflects that the victim was a fifteen-year-old girl who was not related to Wesner. In the plea agreement, Wesner acknowledged that all standard conditions of probation would apply as well as all additional standard conditions of probation “as set forth in the Tenth Circuit Sentencing Order pursuant to F.S. 948.03(5).”

In the written probation order, the trial court imposed condition 16 as follows: “If the victim(s) is/are under the age of 18, until successful completion of sex offender treatment, you shall have no unsupervised contact with children less than eighteen (18) years of age without the approval of the sentencing court.” This condition is worded differently than the statutory condition contained in section 948.03(5)(a)(5), Florida Statutes (2000), which provides:

If the victim was under the age of 18, a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of 18, unless authorized by the sentencing court without another adult present who is responsible for the child’s welfare, has been advised of the crime, and is approved by the sentencing court.

In July 2001 Wesner filed a motion to modify probation condition 16 so that he could have unsupervised contact with his six-year-old son and his grandchildren. At a hearing on the motion, the only evidence that was presented was testimony by a psychologist in support of Wesner’s request. The psychologist noted that Wes-ner had completed eight months of his four-year treatment program, and he testified that he was very comfortable with Wesner having unsupervised visitation with the family members.

The trial court denied the motion, concluding that it did not have the authority to allow for unsupervised visitation until after Wesner successfully completed a sex offender treatment program. Wesner argues that the trial court erroneously interpreted the language of section 948.03(5)(a)(5) and probation condition 16 as eliminating the trial court’s discretion until the treatment program is completed. Under our certiorari standard of review, we conclude that the trial court’s interpretation departed from the essential requirements of law.

We read the language of condition 16 and section 948.03(5)(a)(5) as prohibiting unsupervised contact with children under eighteen until after completion of the sex offender treatment program unless, prior to completion of the program, the trial court authorizes such unsupervised contact. We also note that pursuant to section 948.03(6), a trial court has the authority to rescind or modify the terms of probation or community control at any time, but absent a violation of probation or community control, it may not add new conditions or enhance the penalty. See Blair v. State, 805 So.2d 873, 877 (Fla. 2d DCA 2001); Garvison v. State, 775 So.2d 340, 341 (Fla. 2d DCA 2000).

By concluding that it did not have the discretion to modify Wesner’s probation to allow him to have unsupervised contact with his son and grandchildren until completion of the sex offender treatment program, the trial court departed from the essential requirements of law. Accordingly, we grant the petition for writ of certio-rari and remand for the trial court to consider whether it should approve Wes-ner’s request.

Petition granted.

FULMER and COVINGTON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Jerry SWIGGUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-693.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Jerry Swiggum challenges the sentences imposed after he pleaded guilty to burglaries of two dwellings, dealing in stolen property, and grand theft. He filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b), raising these errors with the circuit court. Because the court never ruled on his motion, it is presumed denied. Fla. R.Crim. P. 3.800(b)(1)(B). Therefore, Swiggum has preserved the alleged errors for appeal.

Swiggum was sentenced as a prison releasee reoffender and a habitual offender for the two burglaries. These offenses were committed in May and June 1998. At the time of his crimes, a PRR sentence could be imposed only if the burgled dwelling was occupied. State v. Huggins, 802 So.2d 276 (Fla.2001). The State did not present evidence of occupancy, but at the time of Swiggum’s sentencing, Huggins had not been decided. We therefore remand for a new sentencing hearing under the procedure adopted in Rowan v. State, 791 So.2d 40 (Fla. 2d DCA 2001). The court should review the record to determine whether it supports a finding that the dwelling was occupied. If the record is unclear, the court may conduct a limited evidentiary hearing on this issue. If the evidence supports a finding of occupancy, the court may resentence Swiggum as a PRR. The habitual offender sentences imposed for the burglaries are invalid for two reasons. First, Grant v. State, 770 So.2d 655, 659 (Fla.2000), held that sentencing a defendant to concurrent, equal terms as a habitual offender and a prison releasee reoffender violated the Prison Re-leasee Reoffender Punishment Act; second, the court did not orally announce the HFO sentences.

Swiggum’s sentence for dealing in stolen property cannot stand for two reasons. First, the written sentence does not comport with the court’s oral pronouncement of sentence. The court stated it was sentencing Swiggum as a prison releasee reoffender, but the written document reflects a violent career criminal sentence. Dealing in stolen property is not an enumerated offense under either of these sentencing schemes. §§ 775.082(8)(a)(l), .084(l)(c), Fla. Stat. (1997). As such, this sentence is invalid. Second, the court also sentenced Swiggum as a habitual offender for this crime. The fifteen-year sentence the court imposed is legal, but the minimum mandatory term is not. § 775.084(4)(a). However, again, the court did not orally announce this sentence.

The State points out that, as part of his plea bargain, Swiggum agreed to be sentenced as a PRR for the burglaries and the charge of dealing in stolen property. Because the agreement cannot be enforced, at least as to the latter charge, the State should be given the option of invalidating the plea or agreeing to sentences without the PRR enhancement. Caddo v. State, 806 So.2d 520 (Fla. 2d DCA 2001).

We also note that on the grand theft counts, the written sentence differs from the court’s oral pronouncement. The court orally imposed a ten-year HFO sentence. § 775.084(4)(a)(3). This sentence is legal. But according to the written documents, Swiggum was sentenced to fifteen years as a PRR. The crime of grand theft does not qualify for PRR sentencing. § 775.082(8)(a)(l). Whether the State chooses to invalidate the plea agreement or abide by it, this sentence must be corrected.

Reversed and remanded.

STRINGER and SILBERMAN, JJ„ concur.


author: DAVIS, Judge.

text:
    David P. SNIPES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1424.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

David P. Snipes challenges the trial court’s order denying as untimely his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Snipes was convicted of first-degree murder and sentenced to death. The Supreme Court of Florida affirmed his conviction but reversed his death sentence with directions to the trial court to impose upon remand a sentence of life imprisonment. Snipes v. State, 733 So.2d 1000 (Fla.1999). The supreme court’s mandate issued on this direct appeal on May 24, 1999. After the trial court complied with the supreme court’s mandate and imposed a life sentence, Snipes appealed that sentence to this court. This court affirmed his sentence, Snipes v. State, 781 So.2d 369 (Fla. 2d DCA 2000), and issued its mandate on January 16, 2001.

On January 4, 2002, Snipes filed a post-conviction motion in the trial court, the denial of which is the subject of this proceeding. The trial court’s order determined that the judgment that Snipes was attacking became final when the mandate issued from the supreme court affirming the judgment on May 24, 1999, and that the two-year time limitation of rule 3.850(b) began to run at that time, thus rendering his January 4, 2002, motion untimely. Snipes argues that the time limitation of the rule did not commence until this court’s affirmance of his sentence on remand became final on January 16, 2001.

The unequivocal language of rule 3.850(b) supports Snipes’ contention:

A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case....

(Emphasis added.) See also Oliver v. State, 734 So.2d 1083 (Fla. 1st DCA 1999) (holding that the two-year time limitation of rule 3.850 does not commence until the sentence becomes final).

We also note the well-established principle that while appeal proceedings are pending in an appellate court, the trial court is without jurisdiction to consider the merits of a motion for postconviction relief filed pursuant to rule 3.850. Daniels v. State, 712 So.2d 765, 765 (Fla.1998); Cannady v. State, 771 So.2d 1266 (Fla. 2d DCA 2000). As such, had Snipes filed his postconviction motion during the pendency of the appeal in this court, the trial court would have been without jurisdiction to entertain it. Snipes’s two-year window to pursue postconviction relief, under the trial court’s analysis of this issue, would have been reduced from two years to about four months. Had this court’s decision affirming the sentence been delayed by those four months, Snipes would, under the trial court’s reasoning, have forfeited his post-conviction rights altogether by exercising his right to appeal the life sentence.

The trial court’s order denying Snipes’s postconviction motion as untimely is reversed for consideration of its claims on the merits.

Reversed and remanded.

FULMER and COVINGTON, JJ., concur.


author: FULMER, Judge.

text:
    Jeffery L. STEVENSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4462.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Jeffery L. Stevenson challenges the revocation of his probation. We reverse the finding that Stevenson violated Condition 5 and remand for reconsideration.

Stevenson was charged with violating Conditions 5, 8, 9, and 10. The affidavit alleged that he violated: Condition 5, by committing a new law violation, domestic violence battery; Condition 8, by failing to work diligently in a lawful occupation in that he failed to obtain gainful employment; Condition 9, by failing to comply with instructions, in that he was instructed to obtain gainful employment and to obtain a social security card; and Condition 10, by failing to make any payments toward his court-ordered monetary obligations. After a hearing, the trial court orally found Stevenson guilty of violating Conditions 5, 8, and 9.

The only evidence presented that Stevenson committed the new law violation came from the probation officer who testified that Stevenson was arrested for a battery but the charge was nolle prossed because the victim could not be located. This testimony was insufficient to support the violation of Condition 5. See Ontiveros v. State, 746 So.2d 1174, 1174 (Fla. 2d DCA 1999) (“It is improper to revoke probation solely on proof that the probationer has been arrested.”).

Some testimony was presented to support the violation of Conditions 8 and 9. We are unable to determine from the record whether the trial court would have revoked Stevenson’s probation based on these violations alone. See Blair v. State, 805 So.2d 873, 878 (Fla. 2d DCA 2001); Iaconetti v. State, 668 So.2d 1079, 1080 (Fla. 2d DCA 1996). Therefore, we reverse for reconsideration of the revocation.

Reversed and remanded.

SALCINES and CANADY, JJ., concur.

      . The order revoking probation incorrectly states that Stevenson pleaded guilty to the violation, when in fact he was found guilty after an evidentiary hearing. The order is also deficient in that it fails to identify the specific conditions that Stevenson was found to have violated. We point out these deficiencies in the order so that the trial court may rectify them on remand.


text:
    In the Interest of R.G. and A.G., children. D.G., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-2565.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    Keith D. Miller of Boswell and Dunlap, LLP, Bartow, for Appellant.

      Douglas Sherman, Department of Children & Family Services, Bartow, and Susan R. Bogart, Department of Children & Family Services, Lakeland, for Appellee.
   PER CURIAM.

In this appeal D.G., the father of two minor children, challenges an order of adjudication of dependency and for supervised visitation. This court recently reversed the finding of dependency in D.G. v. Department of Children & Family Services, 835 So.2d 408 (Fla. 2d DCA 2003), because critical portions of the transcript at the dependency hearing were unavailable for review. In light of this court’s decision in D.G., we summarily reverse the instant case and remand it to the trial court for a new trial.

Temporary stay lifted; reversed and remanded.

DAVIS, SILBERMAN, and CANADY, JJ., Concur.


text:
    Johnny L. CHANDLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5641.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   FULMER, Judge.

Johnny L. Chandler appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

On April 10, 2000, Chandler entered a plea of no contest to eleven drug charges. A month later, he was sentenced to a total of twenty-five years in prison. In his motion, Chandler claimed that his plea was involuntary because he entered it in reliance on counsel’s erroneous advice. He claimed that his counsel told him he would only receive ten years in prison. Chandler seeks to withdraw his plea.

The trial court denied this claim on the basis that the transcript of the plea colloquy demonstrated that no promises were made in regard to Chandler’s sentence. The trial court attached the record of the plea colloquy, which indicated that Chandler was informed by the State that the State made no promises regarding the sentence he was to receive. The record also indicates that the trial court informed Chandler of the maximum sentence he could receive for all of the offenses.

We conclude that the record attached by the trial court is insufficient to refute Chandler’s claim. In order for the record to refute Chandler’s claim that he relied on counsel’s misadvice, the court must have inquired as to whether Chandler’s counsel made him promises regarding the length of sentence that he would receive. See Johnson v. State, 757 So.2d 586, 587 (Fla. 2d DCA 2000) (citing State v. Leroux, 689 So.2d 235 (Fla.1996)). Since the record does not indicate that the court addressed this specific issue with Chandler, we reverse and remand this claim for the trial court to conduct an evidentiary hearing to determine if Chandler’s counsel misadvised him regarding the ten-year sentence. See id. If the trial court again summarily denies this claim, it must attach portions of the record which conclusively demonstrate that Chandler did not rely on the misad-vice of counsel.

We advise Chandler that if he is allowed to withdraw his plea, he assumes the risk of receiving a harsher sentence. See Jones v. State, 834 So.2d 226, 227 (Fla. 2d DCA 2002) (citing Mitchell v. State, 521 So.2d 185 (Fla. 4th DCA 1988)).

Reversed and remanded.

ALTENBERND, C.J., and KELLY, J., Concur.


text:
    CARNIVAL CORPORATION, Appellant, v. Deborah WOERNER and David T. Woerner, Appellees.
    No. 2D02-5503.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
    Curtis J. Mase of Mase & Gassenheimer, P.A., Miami, for Appellant.
    Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa; and Hen-drik Uiterwyk of Abrahamson & Uiterwyk, Tampa, for Appellees.
   PER CURIAM.

This case presents the same issue we recently decided in Norwegian Cruise Line, Ltd. v. Clark, 841 So.2d 547 (Fla. 2d DCA 2003), where the trial court denied transfer of venue based on a forum selection clause in a form cruise ticket contract. In Norwegian, we joined the majority of jurisdictions to find that such clause is enforceable, despite the fact that the passengers had only a short time to reject the form ticket contract if the venue provision had been objectionable to them but took the cruise nevertheless. The facts of this case do not distinguish it from Norwegian. Therefore, we reverse with instructions to transfer this case to the venue specified in the cruise ticket contract.

Reversed and remanded with instructions.

ALTENBERND, C.J., and NORTHCUTT and COVINGTON, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    In the Interest of K.V., a child. T.V., mother, Appellant, v. Department Of Children And Family Services, Appellee.
    No. 2D01-5260.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
    John S. Lynch, Bartow, for Appellant.
    Douglas Sherman, Department of Children and Family Services, Bartow, for Ap-pellee.
   ALTENBERND, Chief Judge.

T.V., the mother, appeals an order adjudicating her child, K.V., dependent, but retaining the child in the parents’ care subject to state supervision. The father did not appeal the adjudication. The Department of Children and Family Services (the Department) concedes that the case must be remanded for a new hearing because a complete transcript is not available for review due to a malfunction in the equipment that taped the proceedings. D.G. v. Dep’t of Children & Families (In re R.G.), 835 So.2d 408 (Fla. 2d DCA 2003). That malfunction occurred shortly after the Department rested its case and the parents began their defense. T.V. argues that we are not required to remand for a new hearing because the trial court erred in failing to grant her motion for involuntary dismissal at the close of the Department’s case. We conclude, however, that the Department presented a prima facie case of dependency as to both parents. We therefore reverse the order adjudicating the child dependent as to the mother and remand for a new hearing on this issue.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.