author: SHEVIN, Judge.

text:
    Rita TEMPLER and Paul Templer, Appellants, v. N. Ralph FRANKEL, M.D. and Tenet Healthcare Corporation, d/b/a Tenet Physicians Services, a foreign corporation, Appellees.
    No. 3D03-42.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Ratzan & Alters, Miami; Angelo, Barry & Boldt and Kimberly L. Boldt, Miami, for appellants.
    Parenti, Falk, Waas, Hernandez & Cor-tina and Gail Leverett Parenti, Coral Gables, for appellee, N. Ralph Frankel, M.D.
    Wicker, Smith, O’Hara, McCoy, Graham & Ford and Shelley H. Leinicke, Fort Lauderdale, for appellee, Tenet Healthcare Corporation, d/b/a Tenet Physicians Services.
    Before SCHWARTZ, C.J., SHEVIN and WELLS, JJ.
   SHEVIN, Judge.

We affirm the final judgment. We hold that the court did not abuse its discretion in excluding the proffered documents. The trial court has broad discretion in determining the admissibility of evidence. Hendry v. Zelaya, 841 So.2d 572 (Fla. 3d DCA 2003). The plaintiffs’ expert testified as to the same matter the documents would have illustrated: the standard of care the defendant-physician should have exercised, and how the patient’s care should have been coordinated. Therefore, the exclusion was not an abuse of discretion. See Parker v. State, 873 So.2d 270, 2004 WL 112875 (Fla. Jan. 22, 2004)(exclu-sion of letters to attorney not abuse of discretion where attorney testified to same facts contained in letters). We also hold that the trial court did not err in limiting the scope of the expert’s testimony. Castillo v. E.I. Du Pont de Nemours & Co., 854 So.2d 1264 (Fla.2003).

Affirmed.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    The PAUL REVERE LIFE INSURANCE COMPANY, Petitioner, v. Shelley KAHN, Respondent.
    No. 3D04-1198.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Shutts & Bowen, LLP, and John E. Meagher, Miami, for petitioner.
    McLuskey & McDonald, P.A., and John W. McLuskey; and Lauri Waldman Ross, Miami, for respondent.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

The Paul Revere Life Insurance Company seeks certiorari review of a decision of the Eleventh Circuit Court’s Appellate Division, granting its motion for extension of time only until June 2, 2004, the day when the preparation of the trial transcript will be completed. We find that the circuit court departed from the essential requirements of the law; thus we grant the petition, quash the circuit court order with instructions to grant an extension to June 20, 2004.

This Petition is unopposed. It is fundamentally unfair to require a party to prepare a brief without a transcript. Cf. Trans-Continental Fin. Corp. v. Baxter, 402 So.2d 1289, 1290 (Fla. 5th DCA 1981). Perhaps the circuit court’s order is its response to our decision in United Auto. Ins. Co., v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004) (en banc), wherein we held that it was improper to dismiss an appeal without first providing fair warning that the failure to file an initial brief could result in such a sanction. We would like to point out that we based our decision on Florida’s long-standing policy in favor of deciding controversies on the merits.

The miserly granting of the unopposed motion for extension of time only until the same day when a transcript is completed in effect forces an appellant to prepare a brief without the benefit of a transcript. This has resulted in additional expense to the litigants in having to perfect this appeal, the additional cost of paying a filing fee, the additional attorney’s time of having to research and draft a petition for certiorari, and the additional judicial labor of granting such a meritorious petition.

We again recognize the appellate division’s discretion in the control and management of its own docket, but repeat that this cannot be achieved at the expense of litigants’ rights to due process and the essential requirements of law.

Petition granted with directions.


author: PER CURIAM.

text:
    LISA, S.A., a Panamanian Corporation, Appellant, v. Juan Luis Bosch GUTIERREZ, et al., Appellees.
    No. 3D03-3144.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Rodriguez & Machado and Juan J. Rodriguez and Hilda Piloto, Miami, for appellant.
    Astigarraga Davis Mullins & Grossman and Edward H. Davis, Jr., and Edward M. Mullins, Miami, and Daniel Friedman and Annette C. Escobar, for appellees.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Babcock v. Whatmore, 707 So.2d 702, 705 (Fla.1998); Berne v. Beznos, 819 So.2d 235, 237-38 (Fla. 3d DCA 2002).


text:
    Enrique M. MALESPIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2469.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Enrique M. Malespin, in proper person.
    Charles J. Crist, Jr., Attorney General and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, LEVY, and GREEN, JJ.
   PER CURIAM.

This is an appeal from the trial court’s denial of defendant Enrique Malespin’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Malespin claims he was denied effective assistance of counsel when his attorney failed to inform him that the State’s 50-month plea offer would only be available to him for one day. Malespin failed to accept the offer within the time limit and eventually was sentenced to ten years’ imprisonment. He alleges that if he had known the offer would be withdrawn m one day, he would have accepted it. Malespin states a legally sufficient claim. See Fla. R. Crim P. 3.171(c)(2)(B); Britt v. State, 352 So.2d 148, 149 (Fla. 2d DCA 1977) (“A person induced to give up his right to a trial by a misapprehension of circumstances surrounding his plea is entitled to vacation of any judgment and sentence resulting from such a plea.”). See also Cottle v. State, 733 So.2d 963, 969 (Fla.1999) (“[Cjourts presume prejudice from the inference that a defendant with more, or better, information, would have acted differently.”) (internal quotation marks omitted) (quoting Williams v. State, 326 Md. 367, 605 A.2d 103, 110 (1992)).

As it is not clear from the face of the record whether the plea offer was open for only one day and, if so, whether counsel told Malespin of the limited availability of the offer, we remand for an evidentiary hearing to determine whether the plea offer would be withdrawn after one day and, if so, whether defendant was informed of this.

We find no merit in Malespin’s other 3.850 claims.

Affirmed in part, reversed in part, remanded with instructions.


text:
    Larry PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1076.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Larry Perkins, Chattahoochee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Larry Perkins appeals .an order reducing the amount of credit awarded for time served. On December 12, 2000, the circuit court entered an order finding that Perkins was awarded too much credit for time served when he was resentenced on May 5, 2000. The court reduced the credit from 1,985 days to 1,386 days.

A sentence is not illegal if the court awards excess credit for time served. Syverson v. State, 659 So.2d 1344 (Fla. 5th DCA 1995). While a court may reduce the amount of credit for time served within sixty days after imposition of the sentence, it loses jurisdiction to do so after that time period. See Fla. R.Crim. P. 3.800(c); Syverson, 659 So.2d 1344; Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002).

In this case, Perkins was awarded the excess credit at resentencing on May 5, 2000. The court attempted to correct the amount of credit on December 12, 2000, well beyond the 60-day time limit. The court had no jurisdiction to reduce the amount of credit previously awarded.

Accordingly, we reverse and remand with directions to vacate the December 12, 2000 order and reinstate the credit for time served awarded at the resentencing.

GUNTHER, POLEN and MAY, JJ., concur.


text:
    Ricky CLARK, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D04-1204.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Bennett H. Brummer, Public Defender, and Ray Taseff, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for respondent.
    Before SHEVIN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

The petitioner, Ricky Clark, a criminal defendant before the circuit court, was charged with attempted first degree arson for allegedly lighting a rolled up newspaper and throwing it out of his cell on August 13, 2002, while a prisoner at Everglades Correctional Institute. On February 12, 2004, he filed a demand for speedy trial pursuant to rule 3.191 of the Florida Rules of Criminal Procedure. On March 10, 2004, the State filed a motion seeking to extend the speedy trial time period stating that State Fire Marshal Fredrick Clarke, “an essential witness,” was unavailable for trial due to a neck injury.

At the hearing on the motion on March 19, 2004, the State satisfactorily established that Clarke had a medical condition for which he had scheduled surgery on March 31, 2004. The State proffered that Clarke was “the Fire Marshal in this case. He did not do more than anybody else in this case. His testimony is unique and needed. He’s going to be able to tell Your Honor and the jury about his investigation that would negate any defenses that Mr. Clarke may have.”

Although the defendant had no obligation to rebut such a woefully inadequate proffer, counsel stated that he had deposed the witness and that Clarke had not secured any physical evidence, had not taken any statement from the defendant, and had not witnessed the incident. The court nevertheless found that Clarke’s testimony was “necessary for a full showing of the facts at trial.” We cannot agree.

In Davis v. State, 474 So.2d 336, 337 (Fla. 3d DCA 1985), we discharged the defendant where there had been “no showing either that the witness in question was unforeseeably or unavoidably absent or that his presence was ‘uniquely necessary for a full and adequate trial,’ so that none of the prerequisites of Fla.R.Crim.P. 3.191(f)(1) were satisfied.” This is clearly the State’s burden. See also Sullivan v. State, 728 So.2d 290 (Fla. 2d DCA 1999).

In its response to this petition, the State takes the position that, even if a witness is not “uniquely necessary,” the court may nevertheless find exceptional circumstances under subsections 3 or 4 of rule 3.191(Z). The rule provides in pertinent part as follows:

Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that, as a matter of substantial justice to the accused or the state or both, require an order by the court. These circumstances include:
(1) unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;
(3) a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time;
(4) a showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that materially will affect the trial.

(Emphasis added). Under subsection 3, the State still failed to proffer the “specific evidence or testimony” that was unavailable. Subsection 4 also mentions “necessity.” Thus, we cannot agree with the State’s novel argument that a defendant’s right to a speedy trial can be trumped by the unavailability of a nonessential witness.

We thus conclude that the court erroneously extended the speedy trial period and subsequently denied the defendant’s motion for discharge. The petition for writ of prohibition is granted and the court is directed to discharge Ricky Clark on the charge of attempted first degree arson.


text:
    Cathy JUSTICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1557.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Carey Haughwout, Public Defender, and Marcy K Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of aggravated battery pursuant to section 784.045, Florida Statutes (1998), a second degree felony, which has a maximum punishment of fifteen years imprisonment. See § 775.082(3)(c), Fla. Stat. (1998). However, the trial court sentenced her to thirty years as a prison releasee reoffender. The state concedes that the court erred, as under the Prison Releasee Reoffender Act the mandatory sentence of a second degree felony is also fifteen years. See § 775.082(8)(a)2.c.

Reversed and remanded for resentenc-ing.

STONE, WARNER and POLEN, JJ., concur.


text:
    Keith L. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1470.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    James B. Gibson, Public Defender, and James Edward Jacaobs, Assistant Public Defender, St. Augustine, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

After violating the terms of his earlier imposed community control sentences, the appellant, Keith L. White, was sentenced by the trial court to serve 53 months in prison. In his direct appeal Mr. White argued that the trial judge erroneously concluded that his scoresheet mandated a 53 month minimum prison sentence, when his scoresheet, in fact, reflected a 44.4 month sentence. We agreed with Mr. White, but affirmed his plenary appeal because the scoresheet error was not brought to the trial court’s attention either at sentencing or pursuant to a Rule 3.800(b) motion. See White v. State, 868 So.2d 664 (Fla. 5th DCA 2004).

Mr. White thereafter sought Rule 3.800(a) postconviction relief. The trial court considered his motion but declined to grant relief for the following reason:

The Court has considered the motion, the opinion of the Fifth District Court of Appeals [sic], the transcript of the proceedings, and finds that the sentence imposed was, in fact, the correct sentence. The Court considered the criminal punishment codes [sic] scoresheet, only as part of the overall sentencing decision. The Court finds that the sentence was lawful and correct.

In Mohn v. State, 723 So.2d 873 (Fla. 2d DCA 1998), the Second District held in a similar case that even though a sentence might fall within the range of a correctly prepared scoresheet, the sentencing error is not harmless “unless the record conclusively shows the court would have imposed the same sentence if it knew the correct score.” It is conclusively shown from the trial court’s order that it would have imposed the same sentence even if it had a correct seoresheet before it at the time of sentencing.

AFFIRMED.

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


author: GRIFFIN, J.

text:
    Kevin E. BROWN, Appellant, v. Rita BROWN, as Personal Representative of the Estate, etc., et al., Appellee.
    Nos. 5D03-1477, 5D03-1478.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Dan H. Honeywell, of Wooten, Honeywell, Kimbrough, Gibson, Doherty and Normand, P.A., and Jack W. Shaw, Jr., of Motes & Carr, P.A., Orlando, for Appellant.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Ap-pellee, Rita Brown.
   GRIFFIN, J.

This is the appeal of a final order apportioning the net settlement proceeds of a wrongful death claim arising out of a motor vehicle accident that occurred on August 7, 2000, which claimed the life of Carrie Anne Brown [“Carrie”], the fourteen year old daughter of appellant, Kevin Brown [“Kevin”], and appellee, Rita Brown [“Rita”]. Rita was named the personal representative of Carrie’s estate, and on September 12, 2000, as personal representative, she filed a complaint for damages under the Florida Wrongful Death Act against Mary L. Hill [“Mary”], the driver of the vehicle in which Carrie was a passenger when the accident occurred, and Dennis G. Hill, Mary’s husband. The complaint alleged that Mary negligently operated her vehicle so as to cause it to collide with a tree, resulting in Carrie’s death. Prior to trial, the parties settled for $2,000,000.00.

On April 26, 2002, Kevin filed a motion for appointment of administrator ad litem to supervise the distribution of the monies recovered in the wrongful death settlement. Shortly thereafter, Kevin also filed a petition for removal of Rita as personal representative of Carrie’s estate on the basis of conflict of interest. A hearing was held on the two motions, at which time the court deferred ruling and sent the parties back to. mediation. No agreement was reached. Subsequently, after receiving memoranda from the parties, the court denied Kevin’s petition for appointment of administrator ad litem and set a hearing to allocate the settlement proceeds.

After an extensive hearing at which the parties and several expert witnesses testified, the court entered a detailed order apportioning net settlement proceeds, sixty-five percent to Rita and thirty-five percent to Kevin.

Kevin mainly contends that the trial court erred in making the allocation. He urges that the court should not have attempted to decide what the allocation should be; rather, the trial court should have determined what a jury might have allocated had the wrongful death case gone to trial. This presumably would consist of lawyers testifying about what evidence they probably would have offered and what they might have argued, plus expert testimony about what the jury might have done given the hypothetical evidence. We appreciate this father’s anguish, and we understand why this argument was made, but we reject it. If the wrongful death case goes to trial, the jury will decide; if it settles, and agreement cannot be reached on allocation of the settlement proceeds, it is the judge who must hear the evidence on such issues and who must make the decision. To have the fact finder attempt to ascertain what another fact finder might have done based on hypothetical evidence is unworkable and unwise.

AFFIRMED.

PETERSON and MONACO, JJ., concur.

      . Kevin and Rita were married in 1975. They subsequently divorced in 1993. In addition to Carrie, they had an older daughter, Jennifer. After the divorce, the parents had shared parental responsibility of the children, but the children lived with Rita. Kevin moved to Ohio and then Minnesota, where he remained until Carrie's death. Kevin eventually remarried and has three children in his current marriage. Rita and the children remained in Florida.

      . §§ 768.16-768.27, Florida Statutes (2000).

      . The remaining issues do not merit extended discussion. It was clearly within the court’s discretion to decline to appoint an administrator ad litem, and we find no fault with the court's decision-making process. To attempt to value grief is hard enough; to attempt to determine the relative grief of two parents is an awful duty. Even if we might disagree with the allocation, it does not matter. The duty to hear the evidence and to decide falls on the trial judge, and there is evidence in the record that would support the trial judge's decision. Commendably, Kevin does not contend otherwise.


author: SHARP, W., J.

text:
    STATE of Florida, Appellant, v. Raymond WILLIAMS, Appellee.
    No. 5D03-2374.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellee.
   SHARP, W., J.

The state appeals from the trial court’s order which dismissed the charge of possession of cocaine against Williams. We reverse.

The state charged Williams with possession of cocaine and driving while his license was suspended or revoked. He filed a motion to dismiss the possession charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) on the ground that there are no material disputed facts underlying this charge against him, and that they do not establish a prima facie case of guilt. Williams’ statement of facts are set forth in his motion, and they were not disputed (traversed) by the state. In fact, the prosecutor collaborated with defense counsel in the wording of the facts and both attorneys agreed to their accuracy-

The statement of facts were as follows:
1. That on or about March 12, 2001, the defendant was operating a motor vehicle that belonged to Marcus Oliver and was stopped by the police.
2. That at the time of the stop, the defendant was told to exit the vehicle.
3. That according to the testimony of the officer, they looked in the area of the car and did not see any items on the ground when he arrived on the scene.
4. That after the defendant exited the vehicle, it was noticed there was a cigar tube lying on the ground.
5. That there was also discovered, inside the car, many similar cigar tubes.
6. When the item was picked up from the ground, there were several rocks of what appeared to be crack cocaine inside the tube.
7. The tube was not tested for fingerprints to determine if the defendant had dropped the tube and the defendant was not seen discarding the tube.
8. That there are no other facts or evidence to connect the defendant to the cigar tube or the items found inside the tube.

The function of a “e4” motion to dismiss is to require the state to present a prima facie case of guilt against the accused, similar to a summary judgment situation in a civil case. State v. Williams, 539 So.2d 575 (Fla. 5th DCA 1989); State v. Pentecost, 397 So.2d 711 (Fla. 5th DCA 1981). If the undisputed facts do not legally constitute prima facie proof of the crime charged, or if they affirmatively establish a valid defense, a motion to dismiss should be granted. However, if the undisputed facts permit the conclusion the defendant could be found guilty of the charged crime, the motion must be denied. Williams; State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

All reasonable inferences that arise from the undisputed facts must be taken in a light most favorable to the prosecution’s case. State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981). Prior to Williams alighting from his vehicle, the law enforcement officer specifically noted there was nothing on the ground. After Williams got out of his car, the tube containing what appeared to be cocaine rocks was found. Other tubes like the one found on the ground were found inside the car. In this case, we think the undisputed facts are sufficient to support a reasonable inference that the cigar tube found on the ground came from Williams or from inside his vehicle, which was (under the stated facts), in his sole possession. Thus, Williams’ possession of the contraband immediately before it was discovered by the officer, can reasonably be inferred from the undisputed facts in this case.

REVERSED and REMANDED.

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

      . § 893.03(2)(a)4., Fla. Stat.

      . § 322.34(2)(a), Fla. Stat.


text:
    Amanda Kelly LOWREY, Appellant, v. Joshua Harris LEE, Appellee.
    No. 5D03-2406.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Carol Ann Volini, Ocala, for Appellant.
    Robert L. Appleget, Jr. of Trow, Apple-get & Perry, Ocala, for Appellee.
   PER CURIAM.

Amanda Lowery appeals a final paternity judgment designating Joshua Lee as primary residential custodian of the parties’ minor child. We affirm.

Appellate courts are reluctant to reverse orders concerning child custody because we recognize that the trial judge is better positioned to determine factual issues relating to child custody matters. See Udell v. Udell, 151 So.2d 863, 865 (Fla. 2d DCA 1963). Since the credibility of witnesses and the weight of their testimony is best determined by the trial court, factual findings made by trial judges in child custody cases should be accorded great weight. Kern v. Kern, 333 So.2d 17, 19 (Fla.1976). In this case, the trial judge was faced with the always difficult task of determining which parent should be designated primary residential custodian in a situation where the evidence could favor either parent. The trial judge provided a thorough written evaluation of each of the factors enumerated in section 61.13(3), Florida Statutes (2003). Competent substantial evidence supports each of the trial judge’s conclusions.

Trial courts are vested with discretion to award primary physical residence to competing parents, and once the trial court makes this determination, an appellate court should not overturn the trial court’s decision absent a clear abuse of discretion. Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975). We find no abuse of discretion here.

AFFIRMED.

PETERSON, PALMER and ORFINGER, JJ., concur.


author: PLEUS, J.

text:
    Sean CARRIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3271.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      Andrew D. Stine, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney' General, Daytona Beach, for Appellees.
   PLEUS, J.

Sean Carrigan appeals from his sentence following the revocation of his probation, asserting that the trial court erred in scoring the 1.5 drug multiplier on his violation of probation sentencing scoresheet when it had not been scored on his original sentencing scoresheet. We affirm.

In 1996, the defendant entered into a negotiated nolo contendere plea whereby he pled to one count of trafficking in 28 grams or more of cocaine with a firearm and one count of leaving the scene of an accident with injuries. The defendant was adjudicated guilty and sentenced, in accordance with the plea agreement, to 72 months in prison followed by five years probation. This included a three year minimum mandatory sentence for the firearm. The sentencing guidelines score-sheet, which was prepared even though the sentence imposed was not based on the guidelines, did not include a 1.5 drug multiplier applicable to drug trafficking offenses.

In 2003, the State filed an affidavit of violation of probation, alleging the defendant violated his probation on two occasions by possessing methamphetamine, possessing drug paraphernalia and by selling methamphetamine.

The defendant admitted to violating his probation. An issue at sentencing involved whether the court could add the 1.5 drug multiplier to the defendant’s score-sheet when the multiplier had not been scored on the original sentencing score-sheet. The defendant argued that to score the 1.5 multiplier only upon sentencing following violation of probation would violate his double jeopardy rights.

The State countered that there was no discussion of applicability of the 1.5 drug multiplier at the original sentencing hearing and there was no reason the probation revocation sentencing court could not now score the drug multiplier.

As a result of adopting the State’s view of the law, the defendant’s score of 87.6 points was increased to 131.4 points. The defendant was subjected to 43.8 additional months incarceration. He was given a guidelines sentence of 110 months incarceration.

In Roberts v. State, 644 So.2d 81 (Fla.1994), the supreme court recognized that in sentencing a defendant after a revocation of probation, a court has authority to revise a guidelines scoresheet to include prior convictions that were mistakenly omitted from the original scoresheet through no fault of the defendant. In that case, the original scoresheet omitted a number of the defendant’s prior convictions. After violating his probation, a revised scoresheet was prepared which included the prior convictions. The supreme court approved, explaining:

When Roberts was originally sentenced, he received the benefit of a mistake in his guidelines scoresheet. Now that he has committed a new crime and violated his probation, we see no reason to perpetuate the error. Justice is not served by awarding a defendant something to which he is not entitled.

644 So.2d at 82.

The Roberts court further agreed with the district court opinion which added that: “since the defendant’s violation of probation triggered the resentencing, the defendant is not being sentenced for precisely the same conduct and double jeopardy concerns do not come into play.” Id. at 82-83, citing Roberts v. State, 611 So.2d 58, 59 (Fla. 3d DCA 1992). See also State v. Marshall, 869 So.2d 754 (Fla. 5th DCA 2004).

Roberts applies where points were mistakenly omitted from the original score-sheet, and has not been used to permit an assessment of points based on reconsideration of a valid scoresheet. Kingsley v. State, 682 So.2d 641 (Fla. 5th DCA 1996). In Kingsley, this Court distinguished Roberts in holding that the trial court improperly used, in resentencing the defendant after revocation of his probation, a revised scoresheet which reflected 40 points for severe victim injury rather than the original scoresheet which had allotted just four points for slight victim injury. The Kings-ley court did not express why the trial court was precluded from recalculating the points.

Both Roberts and Kingsley are distinguishable from the instant case. The issue of scoring the 1.5 drug multiplier was not considered at the original sentencing proceeding so that the rule in Kingsley barring upward revisions in point assessments is inapplicable. However, unlike Roberts, which involved an erroneous scoresheet due to the failure to include the defendant’s requisite prior convictions, the assessment of the drug multiplier is entirely discretionary with the sentencing court. See Fla. R.Crim. P. 3.702(d)(14). See also Perez v. State, 804 So.2d 1265 (Fla. 5th DCA 2002). The instant case thus does pot involve correction of an erroneous scoresheet. Rather, the precise question presented is whether the probation revocation sentencing court can exercise its discretion to score the 1.5 drug multiplier when it was not scored in the original sentencing proceeding.

The defendant’s contention that double jeopardy would preclude such assessment was effectively rejected in Roberts when the supreme court stated that where a violation of probation triggers resentenc-ing, the defendant is not being sentenced for precisely the same conduct and double jeopardy concerns are not implicated.

The trial court’s authority to impose a stiffer sentence after a violation of probation derives from section 948.06(1), Florida Statutes, which provides in relevant part:

If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer'on probation or the offender into community control, (emphasis added).

In Aponte v. State, 810 So.2d 1008 (Fla. 4th DCA 2002), the Fourth District held that victim injury points could be assessed upon a violation of probation despite the fact such points were not assessed in connection with the original sentencing. The court explained that the original sentencing court did not address whether victim injury points should be assessed and rejected the claim that Roberts created a single exception (mistaken omission) applicable to the revision of an original score-sheet. The court concluded:

There is no doubt that in the instant case, the trial court could have assessed victim injury points at the original sentencing hearing had the state presented evidence to support victim injury points. Therefore, we see no reason why the plain reading of section 948.06(1) does not permit the same victim injury points to be assessed upon a violation of probation.

810 So.2d at 1011. But see Williams v. State, 678 So.2d 4 (Fla. 4th DCA 1996) (where original scoresheet showed no additional points for legal restraint, it was error to add such points after violation of probation).

Judge Klein, in a special concurrence in Aponte, felt compelled to agree with the result based on existing case law, but believed section 948.06(1) prohibits adding points after probation is revoked and that Roberts carved out a sole exception, that for mistaken omissions. Judge Klein conceded that, “If double jeopardy does not prohibit what was done in Roberts, it may not prohibit what is being done in this case.” 810 So.2d at 1013.

Aponte is consistent "with Roberts which rejects application of double jeopardy principles to prohibit the scoring of points omitted from the original scoresheet. While the decision in Kingsley does not express the rationale for why a trial court cannot recalculate victim injury points following a violation of probation, it may be that the court was applying principles of law of the case. In other words, where an issue is litigated and decided by the trial court with finality, such as the assessment of victim injury points, such issue cannot be relitigated. See generally, Florida Dep’t of Transportation v. Juliano, 801 So.2d 101 (Fla.2001). Where, as in Aponte and here, the issue was not addressed by the trial court at the original sentencing, law of the case would not preclude consideration of the issue upon violation of probation.

Any reliance on Trotter v. State, 801 So.2d 1041 (Fla. 6th DCA 2001), approved, 825 So.2d 362 (Fla.2002), is misplaced. Trotter involved a resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), and not imposition of a sentence upon violation of probation. It was on remand for resentencing that the trial court, having originally exercised its discretion not to apply the drug multiplier, changed its mind and decided to apply the multiplier. Because a resentencing pursuant to a successful Heggs challenge is de novo, it was held that the trial court was not precluded by double jeopardy principles from changing its mind and applying the multiplier. Kingsley, however, reflects that resentenc-ing upon a violation of probation may not be entirely de novo. Nevertheless, there appears to be no constitutional or statutory impediment to a trial court, upon sentencing for a violation of probation, from scoring the drug multiplier where the issue was not considered at the original sentencing.

AFFIRMED.

SAWAYA, C.J. and PALMER, J., concur.

      . See Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003).


text:
    Ramon L. VALENTINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-191.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.

      Ramon L. Valentine, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Valentine appeals from a summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief. He asserts twelve claims. Rather than considering each claim on the merits and attaching portions of the record, the court noted that Valentine’s motion was tainted by material misrepresentations and inherently incredible allegations, and it attached the entire record. The court ordered Valentine to show cause why sanctions should not be imposed for filing a perjurious motion, as well as his 3.850 motion. After considering Valentine’s responses and additional motions, the court denied all pending motions.

In response to this appeal, the state notes that five of Valentine’s twelve claims are based on alleged statements he asserts were fraudulently omitted from the record. It is unclear from the denial order which claims were based on an alleged fraudulent record and which claims are facially insufficient.

The court failed to consider and address the claims, even in a cursory manner. This does not permit meaningful appellate review by this court. On remand, the court should make a finding for each claim that it is either facially invalid and state a brief reason therefore, or that it is conclusively refuted by the record, attaching relevant portions of the record, or in this case,- making a specific reference to the attached whole. See Foster v. State, 810 So.2d 910 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002); Hoffman v. State, 571 So.2d 449 (Fla.1990); Lane v. State, 868 So.2d 684 (Fla. 5th DCA 2004). If unable to do either of the above, the trial court should hold an evidentiary hearing to resolve the claim.

REVERSED and REMANDED.

THOMPSON and ORFINGER, JJ., concur.


text:
    Bobby WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-175.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.
   PER CURIAM.

Bobby Washington challenges the order of the trial court denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court did not attach portions of the trial court record that conclusively refute Washington’s facially sufficient claim for relief, we reverse the order of the trial court and remand for further proceedings.

In his motion, Washington alleged that he was only awarded 137 days’ credit against his prison sentence for the time he spent in jail prior to sentencing on trial court case number 02-569 when he should have been awarded 253 days’ credit. He further alleged that the trial court records, on their face, demonstrate an entitlement to relief. Washington presented a facially sufficient rule 3.800(a) jail credit claim. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The trial court denied relief on this claim, attaching the response of the State to its order to show cause why Washington should not be entitled to relief. In its response, the State noted that Washington was sentenced on the same day to concurrent two-year prison sentences in three separate trial court cases, including the present case. Because Washington alleged that the failure to award the correct amount of jail credit was a violation of his plea agreement, the State interpreted Washington’s motion as alleging that, because he was sentenced concurrently in all cases, he was entitled to the same amount of jail credit in trial court case number 02-569 as was awarded in trial court case number 02-393 even though he spent less time in jail in case number 02-569. The State was correct in determining that a defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently. See Dennis v. State, 754 So.2d 857, 858 (Fla. 3d DCA 2000). However, the State’s interpretation of Washington’s claim is only a possible interpretation and, as noted, Washington stated a facially sufficient claim that the trial court records would show that he was entitled to 253 days’ credit.

Accordingly, we reverse the order of the trial court. On remand, if the trial court again denies this claim, it shall attach those record documents, such as the sheriffs jail log, which conclusively refute the claim. See Whitt v. State, 807 So.2d 788 (Fla. 2d DCA 2002).

Reversed and remanded.

STRINGER, COVINGTON, and WALLACE, JJ„ Concur.


text:
    M.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4875.
    District Court of Appeal of Florida, First District.
    May 28, 2004.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the trial court was without jurisdiction to revoke the appellant’s probation (which had expired six months prior to the filing of an affidavit of violation thereof), we reverse the appellant’s conviction and remand with instructions for the trial court to vacate the order revoking probation and the judgment and sentence imposed subsequent thereto, dismiss the affidavit alleging a violation of probation, and discharge the appellant.

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Michael Anthony JOHNSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-3830.
    District Court of Appeal of Florida, First District.
    May 28, 2004.
    Michael Anthony Johnson, petitioner, pro se.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondent.
   PER CURIAM.

As respondent concedes, the circuit court erred in entering a final order prior to expiration of the time for the filing of a reply by petitioner. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1997). Accordingly, the circuit court’s order is quashed and this cause is remanded with directions to reconsider the matter after petitioner is afforded the opportunity to file a reply. However, we find no merit to petitioner’s argument that the trial judge’s actions are indicative of bias, and we therefore reject his contention that the proceedings on remand should be conducted before a different judge.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


author: CASANUEVA, Judge.

text:
    HIGHLANDS CARPENTRY SERVICE, INC., Appellant, v. Helen CONNONE, the Estate of Eugene Connone; Broder Construction, Inc., T.M. Scott, Inc., United Subcontractors, Inc., d/b/a West Coast Insulation of Central Florida; and Chambers Truss, Inc., Appellees.
    No. 2D03-2053.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.

      James F. McCollum of James F. McCol-lum, P.L., Sebring, for Appellant.
    James V. Lobozzo, Jr., of McClure and Lobozzo, LLC, Sebring, for Appellees.
   CASANUEVA, Judge.

Highlands Carpentry Service, Inc., appeals from a final judgment awarding it attorney’s fees and court costs following the trial of a foreclosure of a construction lien. Because the trial court abused its discretion in awarding attorney’s fees and costs without making specific findings, we reverse.

As the prevailing party in an action brought under chapter 713, Florida Statutes (2000), Highlands is entitled to an award of a reasonable attorney’s fee and court costs from appellees Helen Connone and the Estate of Eugene Connone (homeowners). § 713.29. Prior to the fee hearing, counsel for Highlands submitted a sworn affidavit of attorney’s fees and costs claiming the following amounts: attorney’s fee of $36,150 calculated at an hourly rate of $250 for 144 hours of service; paralegal time of $6026.50 calculated at a rate of $85 per hour for 70.9 hours; and court costs totaling $1850.84, including, among other items, charges for the filing fee of $100.50, service of process fee of $292.92, and a court reporter fee of $985.25.

Immediately before the court took testimony at the fee hearing, counsel for Highlands advised the court that the homeowners’ counsel “agreed to stipulate to the reasonableness of the costs except for the copy charges.” In response, the homeowners’ counsel advised the court that his position was that charges for “fax, long distance and photocopies” were not taxable costs. In a second discussion between counsel during the hearing, Highlands’ counsel expressed his belief that the homeowners’ counsel had stipulated to all costs except the three categories previously identified; in response, the homeowners’ counsel verified that “yes, that’s correct.”

Both parties submitted testimony on the attorney’s fees issue. Highlands’ expert witness testified that a reasonable hourly rate for an attorney with the experience of Highlands’ counsel for services rendered in Highlands County would be $250. The witness further opined that a reasonable fee in this instance would be $36,150. Regarding paralegal time, the expert witness stated that the rate claimed was within the customary rate in the community of $75 to $85 per hour, that the hours claimed were reasonable, and that an award of $6026.50 would be appropriate.

The homeowners offered an expert witness in opposition, who testified that in Highlands County a reasonable attorney’s fee was $200 per hour. However, the expert thought that all the local attorneys charged somewhere between $150 to $200 per hour; he did not offer a specific opinion as to the experience of Highlands’ counsel, nor did he testify concerning the amount of time spent on the case. Based on legal services requiring 80 to 100 hours, the expert opined that a reasonable fee would be between $16,000 and $20,000. He also testified that the charges for paralegal time ranged from $50 to $75 per hour.

Following the hearing, the trial court entered an order awarding Highlands an attorney’s fee of $15,000. In fashioning the award, the trial court found a reasonable rate to be within $150 to $250 per hour and the time reasonably necessary to handle the matter to range between 100 to 150 hours. This award also included the paralegal claim. The taxable costs awarded totaled $100.50. Although the filing fee was $100.50, the judgment did not specify the exact cost being reimbursed.

We first address the award of attorney’s fees. When determining an hourly rate and the number of hours reasonably expended, a trial court is required to set forth specific findings. Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). In this instance, although the trial court sought to establish a range of acceptability, Rowe requires more. The court must identify the precise hourly rate as well as the amount of hours reasonably expended. Although normally an “award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion,” DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992), we are compelled to reverse and remand for further proceedings because the final judgment lacks the necessary specific findings.

For purposes of remand, we note that the record before this court supports a specific hourly rate between $200 and $250. The homeowners’ expert testimony regarding local rates did not specify that the rate was appropriate for Highlands’ counsel and therefore cannot serve as the basis for an award. See Beck v. Beck, 852 So.2d 934, 937 (Fla. 2d DCA 2003) (“[I]n making an attorney’s fee award in a dissolution proceeding, the trial court must determine the proper amount of fees by considering the hourly rate, the number of hours reasonably expended in the case, and setting forth specific findings” as required by Rowe.) Tucker v. Tucker, 513 So.2d 733, 734 (Fla. 2d DCA 1987) (“[W]e have said that compliance with Rowe requires specific findings as to the hourly rate and the reasonableness of the hours expended.”). It will not be necessary for the trial court to take additional testimony on this issue if it maintains a clear recollection of the trial and prior proceedings. However, the court must make a specific finding of the exact number of hours appropriately expended in this matter so the fee can be computed. Moreover, identical findings are required on the paralegal fee claim, where the range supported by the testimony is between $50 and $85 per hour.

Finally, we address the award of court costs. Although we might safely conclude that the court awarded only the cost of the filing fee, the final judgment fails to identify the specific basis for its award. We remand so that the court may make appropriate findings. We affirm the trial court’s determination that postage, long distance calls, and fax transmissions are office expenses that should not be taxed as costs. In re Estate of Williams, 771 So.2d 7, 8 (Fla. 2d DCA 2000).

Because our record reveals confusion and ambiguity about the nature and extent of the “stipulation” of counsel as to costs, on remand the trial court may revisit this matter. The parties are directed to clearly delineate the extent of their stipulation; however, we remind the parties that the trial court is not bound to accept it. Although the final judgment indicates that the court elected to reject the stipulation, unfortunately neither the transcript nor the final judgment so indicates. However, if Highlands’ counsel had been aware that the court was rejecting the stipulation, he would have had the opportunity to offer evidence on his claim for costs at the hearing. Therefore, on remand, if the trial judge does in fact reject the stipulation, Highlands may submit additional evidence as to costs. Ultimately, however, “the award of costs is left to the sound discretion of the trial court.” State, Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998) (citing Madison v. Midland Nat’l Life Ins. Co., 648 So.2d 1226, 1228 (Fla. 4th DCA 1995)).

Reversed and remanded for further proceedings.

SALCINES and SILBERMAN, JJ., concur.


author: SILBERMAN, Judge.

text:
    Valorie J. ROSIER, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Southern Milling and Lumber, Appellees.
    No. 2D03-2308.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.

      Valorie J. Rosier, pro se.
    John D. Maher, Deputy General Counsel, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Southern Milling and Lumber.
   SILBERMAN, Judge.

Valorie J. Rosier challenges the denial of her claim for unemployment compensation benefits. Because a key factual finding that was the basis of the denial of benefits was not supported by competent, substantial evidence, we reverse.

Ms. Rosier was employed by Southern Milling and Lumber as a truck driver between May 21, 2001, and November 12, 2002. She had a history of complaining about driving certain trucks, complaining about work, and discussing personal matters with customers and fellow employees. In October 2002 Southern Milling placed Ms. Rosier on thirty days’ probation. Her probation terms included the following:

TRUCKS: There is to be no complaining about which truck you are assigned to drive on any given day. If there are legitimate safety concerns about the truck, (tires, windshield wipers, etc) they should be reported to the office (Duke or Vikki).
Constant complaining will not be tolerated. If you have ideas for better ways to do things, they should be addressed to the appropriate person. Customers and fellow employees do not have time to listen to problems they cannot solve.

While on probation, Ms. Rosier received a twenty-five cent per hour pay raise. Her husband, who also worked for Southern Milling, received a fifty cent per hour raise. Ms. Rosier became angry about the amount of her raise and told one of her immediate supervisors, Duke Lilly, “that she was not getting paid enough to drive a semi truck, that she would only drive straight trucks.” Ms. Rosier admitted that she complained to Mr. Lilly, stating,

So I went into the office and I said, okay, since I’m not doing — I didn’t get as much raise because I can’t complete my job properly, then I’m not strapping down the pallets, I will need help every time, and also because I feel my husband got a raise and he basically only drove the little truck, then that is all I wanted. Because I only got a. raise that he supposedly got for doing his job with the little truck, so that’s all I wanted to drive.

The next day Mr. Lloyd Herbert, a manager and vice president for Southern Milling, confronted Ms. Rosier about the incident. Ms. Rosier apologized for having a problem with her raise and told Mr. Herbert that she was fine with driving a “big truck.” Ms. Rosier continued working that day but was discharged when she returned from her last delivery. Mr. Herbert testified at a hearing before the appeals referee and stated that drivers are not assigned to particular trucks. As trucks are loaded, drivers are assigned to take the next available truck. He testified that Ms. Rosier was terminated because she “doesn’t fit our operation, nor does she have a good attitude with our company,” and it was in the company’s best interest to terminate Ms. Rosier’s employment.

In her factual findings, the appeals referee stated that

[Ms. Rosier] was angry that she received a smaller pay raise and told the production manager that she was not driving semi trucks any more because she was not paid enough to drive semis. [Ms. Rosier] was discharged on November 11, 2002, for violating the terms of her probation by complaining to a coworker that she was not paid enough to drive semi trucks.

(Emphasis added). In her conclusions of law, the referee stated that

upon being notified that she was on probation and that she should not violate the terms of probation, the claimant was obligated to abide by the directives specified in the probation terms. When the claimant complained about driving semi trucks and also made the complaint to a co-worker, rather than her supervisor, her conduct was a willful violation of her duties and obligations to the employer. Therefore, it is concluded that [Ms. Rosier] was discharged for misconduct connected with the work.

(Emphasis added). The Unemployment Appeals Commission upheld the referee’s findings and conclusions and denied unemployment compensation benefits to Ms. Rosier.

In the present appeal, “the commission’s order is entitled to a presumption of correctness.” Sekinger v. Heritage Ins., Inc., 718 So.2d 358, 359 (Fla. 2d DCA 1998). However, the decisions of the appeals referee and the commission may be set aside when the decisions depend “on any finding of fact that is not supported by competent, substantial evidence in the record.” § 120.68(7)(b), (10), Fla. Stat. (2002); see also Kelle v. D.H. Holmes Co., 658 So.2d 1161, 1162 (Fla. 2d DCA 1995). Additionally, the commission’s legal conclusion may be overturned if it is clearly erroneous. Eulo v. Fla. Unemployment Appeal Comm’n, 724 So.2d 636, 637 (Fla. 2d DCA 1999).

The referee’s finding that Ms. Rosier violated her probation with Southern Milling by complaining about the raise to someone other than her supervisor is not supported by the record. In fact, all of the evidence reflects that Ms. Rosier directed her complaint to Mr. Lilly, who was the production manager and her supervisor, and nothing in the record suggests that Ms. Rosier’s complaint should have been directed to anyone else. The complaint was based on the discrepancy in the amount of Ms. Rosier’s raise, as compared to that of her husband, and it differed from the nature of the complaints that led to her being placed on probation. Therefore, we conclude that the evidence submitted to the referee does not support the conclusion that Ms. Rosier’s actions violated the conditions of her probation and amounted to misconduct within the meaning of the unemployment statute. See § 443.036(29), Fla. Stat. (2002).

Because the referee’s determination that Ms. Rosier violated her probationary status and was terminated for misconduct is not supported by competent, substantial evidence, we reverse. On remand, Ms. Rosier shall be afforded any unemployment benefits to which she is entitled as a result of her termination.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., Concur.


text:
    John Anthony SHERIDAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3837.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm John Anthony Sheridan’s conviction and sentence for third-degree murder. However, we certify that, as to the predicate offenses for habitual offender sentencing, this decision conflicts with the Fourth District’s opinion in Richardson v. State, 28 Fla. L. Weekly D1716, — So.2d -, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

CASANUEVA, DAVIS, and SILBERMAN, JJ., Concur.


author: THOMPSON, J.

text:
    Soonja ROACH, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-3831.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Soonja Roach, Indian Harbour Beach, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   THOMPSON, J.

Soonja Roach appeals a final order of the Unemployment Appeals Commission (“UAC”), which affirmed the appeals referee’s ruling that Roach was disqualified from receiving benefits. The UAC adopted the referee’s findings that Roach voluntarily left her employment without good cause attributable to the employer. We affirm.

Roach argues on appeal that she was forced to separate from the work place because of illness. She also contends that the referee was biased and did not give her proper instruction about process. Most important, she argues that she presented testimony and evidence to the hearing officer to support her position. We cannot review the contentions raised by Roach because she has neither provided a transcript, nor asked the UAC to provide the court with a transcript. Roach has the burden to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980) (holding that without a record of the trial proceedings, the court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory). Because there is no transcript, we must assume that the referee’s finding that Roach left work voluntarily is supported by the evidence. See Fryburg v. Unemployment Appeals Commission, 799 So.2d 281 (Fla. 5th DCA 2001).

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.


text:
    Donald PIERCE, Petitioner, v. STATE of Florida, Respondent.
    No. 2D04-1753.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.

      James E. Felman and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Donald Pierce petitions this court for a writ of prohibition, contending that the circuit court erred in denying his facially sufficient motion to disqualify the trial judge. A writ of prohibition is the appropriate avenue for relief after the denial of a motion to disqualify a trial judge because of bias or other reasons. Castro v. Luce, 650 So.2d 1067 (Fla. 2d DCA 1995). A judge considering a motion to disqualify shall not look beyond the facial sufficiency of the motion. See Fla. R. Jud. Admin. 2.160(f); Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978). Because Mr. Pierce’s motion to disqualify was facially sufficient pursuant to Florida Rule of Judicial Administration 2.160(d)(1), we grant the petition and issue the writ of prohibition.

Whether a motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See Fla. R. Jud. Admin. 2.160(d)(1); Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002). In determining the legal sufficiency of the motion, the court must also determine if the facts alleged, which must be .taken as true, would prompt a reasonably prudent person to fear that he could not receive a fair and impartial trial. See Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981). Mr. Pierce has met his burden in this case.

At the conclusion of a hearing on Mr. Pierce’s motion to suppress, the judge denied the motion and began the following dialogue:

COURT: So I don’t believe that there was an illegal detention, and I don’t believe that there was an illegal search, and the motion is hereby denied.
MR. FELMAN: Judge,—
COURT: Where does Mr. Pierce fall in the guidelines?
MR. FELMAN: He scores nonstate prison to five years.
COURT: Does he have any prior record?
THE STATE: No, he does not, Your Honor.
COURT: Mr. Felman, we’ll give you three options here today. Set it for trial, that’s option number one. Or, if Mr. Pierce wants to enter a plea, of guilty, I’ll withhold adjudication of guilt place him on 30 months’ probation; impose standard drug conditions; impose court costs; if there are any invest [sic] costs, he’ll have to pay that. Or, in the alternative, if he wants to enter a no contest plea and retain his right to appeal my denial of the Motion to Suppress, I would at that point adjudicate that he is guilty place him on the same 30 months of probation; and revoke his driving privileges for a period of two years; impose the same court costs and the same standard drug conditions and the same invest costs to the Sheriffs Office.

Based on (1) the court’s declaration that Mr. Pierce’s sentence would be more severe if he exercised his right to appeal, (2) the court’s predetermination of Mr. Pierce’s sentence prior to any sentencing hearing, and (3) the court’s sua sponte initiation of plea discussions, Mr. Pierce filed a motion to disqualify the judge. In his motion, he attested that he had a well-grounded fear that he would not receive a fair hearing from the trial judge. After a hearing, the judge denied the motion.

In State v. Warner, 762 So.2d 507, 513 (Fla.2000), the supreme court ultimately decided to permit limited judicial participation in plea negotiations with certain safeguards as outlined by the Michigan Supreme Court in People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993). The supreme court considered these safeguards necessary “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” Warner, 762 So.2d at 513.

However, judges do not have the flexibility of prosecutors, and they are prohibited from initiating the plea dialogue. Wilson v. State, 845 So.2d 142, 151 (Fla.2003). A judge “ ‘may ... participate in such discussions upon request of a party’ and ‘[o]nee involved, the court may actively discuss potential sentences and comment on proposed plea agreements.’ ” Id. (quoting Warner, 762 So.2d at 513-14). Here, the State never offered a plea agreement, and the judge initiated a plea dialogue without either party’s request to do so.

Judges are also prohibited from either stating or implying “ ‘alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.’ ” Wilson, 845 So.2d at 151 (quoting Warner, 762 So.2d at 514). This prohibition stems from the need for judges to avoid any appearance of vindictiveness if the defendant chooses to exercise certain rights, such as his right to go to trial or to appeal. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In this case, the issue is not whether the judge acted vindictively, and we make no finding that he did so, but whether his sua sponte discussion of sentencing alternatives created in Mr. Pierce a well-founded fear that the judge was discouraging his right to appeal and, therefore, he could not receive a fair trial or sentence.

Finally, we note that the Wilson court recognized that “ ‘[a] judge’s candid statement of how a case appears at an early stage of the proceeding does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known,’ ” and concluded that “ ‘the judge who participated in the plea bargaining process will not automatically be subject to recusal.’ ” Wilson, 845 So.2d at 151 (quoting Warner, 762 So.2d at 514). In this case, however, the judge’s participation in the plea process went beyond mere comment. His reference to the disparate sentences he would impose depending on whether the defendant chose to go to trial or to exercise his appellate rights would create in a reasonably prudent person a well-founded fear of not receiving a fair trial or sentence.

Accordingly, because Mr. Pierce’s motion was facially sufficient, we grant the petition for writ of prohibition and remand with directions for the trial court to grant the motion for disqualification and to re-cuse itself from further proceedings.

FULMER, CASANUEVA, and KELLY, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Donald PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2161.
    District Court of Appeal of Florida, Second District.
    June 2, 2004.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Donald Payne challenges the amount of restitution imposed after he pleaded no contest to one count of felony battery. We agree that the State failed to prove that the victim’s damages were caused by Payne’s offense or were directly related to the criminal episode. See § 775.089(l)(a), Fla. Stat. (2001). We therefore reverse the restitution order and remand for a new hearing.

The State’s only evidence concerning the amount of the victim’s loss was a report and payment record from the Crimes Compensation Trust Fund, which showed it had paid the victim $5324 for undescribed medical and mental health treatment. Payne’s counsel objected to setting the restitution based solely on this document. He asked for a specific breakdown of the compensated medical procedures, arguing such a breakdown was necessary to determine whether the payments made were actually related to Payne’s crime. The court denied counsel’s request, finding that chapter 960, Florida Statutes (2001), which contains the provisions related to the Crimes Compensation Trust Fund, required it automatically to award the restitution sought by the Fund. But the court was concerned that its interpretation of the statute might present due process problems.

Section 960.17(1) provides:

Any payment of benefits to, or on behalf of, a victim or other claimant under this chapter creates a debt due and owing to the state by any person found, in a civil, criminal, or juvenile court proceeding in which he or she is a party, to have committed such criminal act. Such payment shall create an obligation of restitution in accordance with s. 775.089.

(emphasis supplied). Section 775.089(l)(a) states that “[pjayment of an award by the Crimes Compensation Trust Fund shall create an order of restitution to the Crimes Compensation Trust Fund, unless specifically waived in accordance with sub-paragraph (b)l.” Curiously, subparagraph (b)l. does not discuss waiver but instead provides that “[i]f the court does not order restitution, or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor.” § 775.089(l)(b)(l). In construing two subsections of the same statute, we read the subsections in pari materia. See State v. Riley, 638 So.2d 507, 508 (Fla.1994) (stating that when interpreting two subsections of the same statute, the subsections should be read in pari materia). Doing so in this instance leads to the conclusion that the circuit court has discretion not to award the entire amount requested by the Crimes Compensation Trust Fund. Cf. Strickland v. State, 746 So.2d 1189, 1190 (Fla. 2d DCA 1999) (construing the foregoing statutes and holding that, even when the Crimes Compensation Trust Fund seeks restitution, a defendant is entitled to an evidentiary hearing if he or she objects).

While Payne did receive a restitution hearing, the State’s evidence did not meet its burden of establishing that the amounts the Trust Fund paid were connected to Payne’s crime. See § 775.089(7). In this regard, we note that the Trust Fund’s documents in this case differed from the documents from the Division of Victim Services introduced in Kirk v. State, 869 So.2d 670 (Fla. 5th DCA 2004). In Kirk, the documents included the victim’s medical bills. Those bills showed the name of each medical provider and the amount Victim Services paid for each specific treatment. Here, the Trust Fund’s documents merely revealed reimbursements to the victim for mental health and medical services. Although the documents established the dates of care, they did not show the names of the providers or the types of services furnished. Although the listed dates do show that some of the services occurred around the time of the crime, others were not provided until several months later.

To award restitution, the court must find that the victim’s loss is causally-connected to and bears a significant relationship to the defendant’s offense. Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). The State simply did not supply this proof. See, e.g., A.J. v. State, 677 So.2d 935, 938 (Fla. 4th DCA 1996) (noting that testimony linking medical bills to victim’s injuries was sufficient to show the loss related to the defendant’s offense). We reverse and remand for a new restitution hearing.

STRINGER and COVINGTON, JJ., Concur.


text:
    Albert A. SANTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-389.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Albert A. Santa, Pittsburgh, PA, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the State’s motion for rehearing, vacate our opinion of February 25, 2004, and affirm without prejudice to appellant filing a proper rule 3.850 motion.

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


text:
    WASTE MANAGEMENT, INC. OF FLORIDA, Appellant, v. Lowell S. DUNN, et al., Appellees.
    No. 3D04-895.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    White & Case and Douglas M. Halsey and Evan M. Goldenberg and Christopher M. Klemaweseh, Miami, for appellant.
    Elder, Vaccarella, Lewis, Miles & Rem-bold and David Elder and Jordan M. Keusch, Miami, for appellees.
    Before SCHWARTZ, C.J., and LEVY, J„ and COBB, WARREN, Senior Judge.
   PER CURIAM.

As the appellees concede, the order under review granting injunctive relief must be and is vacated because of the trial court’s failure to conduct the required evi-dentiary hearing. See Lopez v. Paredes, 653 So.2d 472 (Fla. 3d DCA 1995). The cause is remanded for further appropriate proceedings.


author: LEVENS, WILLIAM P., Associate Judge.

text:
    Shauntavius COOK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1079.
    District Court of Appeal of Florida, Second District.
    June 2, 2004.
    James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defendant, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   LEVENS, WILLIAM P., Associate Judge.

Shauntavius Cook seeks review of the final judgment withholding adjudication and sentencing Cook for possession of cocaine and possession of marijuana. Cook filed a motion to suppress the cocaine and marijuana that formed the basis for the charges against him, asserting that the vehicle in which he was a passenger was unlawfully stopped for an alleged violation of a municipal noise ordinance and that the ensuing search of his person was illegal. The trial court denied the motion to suppress, and Cook entered a plea of guilty, reserving the right to appeal the denial of his dispositive motion. Because the State failed to call the only officer in whose presence the violation allegedly occurred, we reverse the order denying the motion to suppress and reverse Cook’s judgment and sentence.

In reviewing a trial court’s ruling on a motion to suppress, the trial court’s findings of fact must be upheld if competent substantial evidence supports the findings, while the application of the law to the facts is reviewed de novo. Connor v. State, 803 So.2d 598 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). “Once a defendant challenges his arrest and search without a warrant, the burden of proving its validity as a predicate for lawful admissions seized in evidence is upon the state.” King v. State, 371 So.2d 120, 122 (Fla. 1st DCA 1978); see also Irons v. State, 498 So.2d 958, 959 (Fla. 2d DCA 1986) (applying this principle to search arising from allegedly illegal stop).

When conducting a stop based on a violation of a municipal ordinance, the alleged violation must have occurred in the presence of the officer. § 901.15(1), Fla. Stat. (2002). In this case, the stop was based on an alleged violation of section 11-152 of the Code of Ordinances of the City of Fort Myers, Florida, which makes it unlawful for persons in vehicles to operate radios or compact disc or tape players in such a manner as to be audible at a distance of twenty-five feet or more.

At the hearing on the motion to suppress, the State presented the testimony of two officers who arrived as backup after Officer Reynolds had already conducted the stop. When asked why Officer Reynolds conducted the stop, one officer testified that the vehicle in which Cook was traveling was pulled over for a “loud car stereo,” and the other officer testified that the vehicle was pulled over “based on a city ordinance for loud car stereo.” Defense counsel objected to this testimony on hearsay grounds, and the trial court admitted the testimony to show how the backup officers reacted to whatever happened, but not to prove the truth of the matter asserted. Officer Reynolds, the only officer in whose presence the violation allegedly occurred, did not testify, and no other evidence was presented regarding the basis for the stop.

The testimony presented by the State fails to provide evidence that Officer Reynolds observed a violation of the noise ordinance. The backup officers’ testimony provides only conclusory statements that the vehicle was pulled over for a loud car stereo, and this testimony was admissible only to show how the backup officers reacted, not as evidence that the vehicle was observed operating with a loud car stereo prior to the stop. Accordingly, the State failed to meet its burden to show that the stop was lawful. We reverse the trial court’s denial of Cook’s motion to suppress and reverse Cook’s judgment and sentence. We do not reach the other issues raised on appeal.

Reversed.

ALTENBERND, C.J., and SILBER-MAN, J., Concur.


author: VILLANTI, Judge.

text:
    BAY III, INC., a Florida corporation; Robert J. Gordon a/k/a Robert Gordon; Crawley Corporation, a Florida corporation; and Betty M. Gordon, as successor trustee under Trust Agreement dated December 30, 1971, Appellants, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2D03-3122.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.
    Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa, and Brent E. Simon of Brent E. Simon, P.A., New Port Richey, for Appellants.

      Pamela S. Leslie, General Counsel, and Gregory S. Costas, Assistant General Counsel, Tallahassee, for Appellee.
   VILLANTI, Judge.

In this eminent domain proceeding, appellants, Bay III, Inc., a Florida corporation, Robert J. Gordon a/k/a Robert Gordon, Crawley Corporation, a Florida corporation, and Betty M. Gordon, as successor trustee under Trust Agreement dated December 30, 1971, challenge the trial court’s denial of their motion for attorney’s fees incurred during posttrial proceedings to recover the costs of their experts pursuant to section 73.091(1), Florida Statutes (2001). For the reasons expressed in our recent opinion in Enterprising Professional Investment Corp. v. Department of Transportation, 29 Fla. L. Weekly D555, — So.2d -, 2004 WL 401573 (Fla. 2d DCA Mar.5, 2004), we reverse the order denying attorney’s fees and remand for further proceedings consistent with that opinion. See also Robbins v. Dep’t of Transp., 874 So.2d 615, 2004 WL 573932 (Fla. 2d DCA Mar.24, 2004).

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.

      . We note that, at oral argument, the Department of Transportation attempted to distinguish the facts in this case from those in Enterprising Professional Investment Corp. We perceive no material difference sufficient to convince us that we should not follow Enterprising Professional Investment Corp. in this case.


author: SALCINES, Judge.

text:
    Thomas James BALTIMORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1659.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Thomas James Baltimore appeals his conviction for burglary of a dwelling which allegedly occurred on May 11, 2001. Baltimore has asserted that fundamental error occurred because the jury was instructed that he could be found guilty of burglary, even with consensual entry into the victim’s dwelling, if Baltimore formed the intent to commit an offense either before entering or while “remaining in” the structure. The “remaining in” language of the jury instruction was contrary to the rule announced in Delgado v. State, 776 So.2d 233 (Fla.2000), in which the supreme court held that “the ‘remaining in’ language applies only in situations where the remaining in was done surreptitiously.” 776 So.2d at 240. In the present case, there was no evidence presented at trial to support a “surreptitious remaining in” the dwelling by Baltimore. His conviction must be reversed and remanded for a new trial.

In concluding that Delgado applies to Baltimore’s case, we follow our holding in Smith v. State, 867 So.2d 617 (Fla. 2d DCA 2004), in which we aligned this court with the views of the First District Court of Appeal in Foster v. State, 861 So.2d 434, 442-43 (Fla. 1st DCA 2002) (opinion on rehearing).

Reversed and remanded for new trial.

FULMER, J., and DANAHY, PAUL W., Senior Judge, Concur.


text:
    Bruce CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3867.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Bruce Cunningham appeals the denial of his motion to correct a sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In the motion Cunningham raised two issues: (1) the trial court failed to follow this court’s mandate on remand from the direct appeal of his sentence, and (2) the trial court failed to follow proper formalities when it imposed the habitual offender sentence. We reverse and remand for further proceedings.

In Cunningham v. State, 818 So.2d 685 (Fla. 2d DCA 2002), this court directed the trial court to conduct a hearing and to make a factual determination to resolve the conflict between the written sentencing order imposing thirty years’ imprisonment and the transcribed oral pronouncement imposing eighteen years’ imprisonment. On remand, the trial court did conduct a hearing. However, Cunningham, his trial counsel who attended the original sentencing, and the court reporter who had transcribed the original sentencing hearing were not present. The prosecutor was present, and the trial judge speculated that he had pronounced a thirty-year sentence and “[sjomehow that got morphed [in] the written record by the Court Reporter, as an 18-year sentence.... ” The prosecutor agreed that there was never a discussion about an eighteen-year sentence, and the matter was concluded. The trial court issued a written order stating that the original judgment and sentence were to stand as originally filed. The thirty-year sentence was reaffirmed.

The State has conceded and we agree that the trial court did not follow this court’s mandate at the hearing on remand. Once again this matter must be remanded to the trial court to conduct an evidentiary hearing to resolve the discrepancy between the written sentence and the oral pronouncement made at the sentencing hearing. We direct that the court ensure that Cunningham, his trial counsel who was present at the sentencing hearing (Bruce Kaufmann), and the original court reporter (Deborah M. Williams) are present at the new hearing.

In the motion to correct sentencing error, Cunningham raised a second issue that was not addressed by the trial court in the order denying the motion. Accordingly, on remand, the trial court shall address Cunningham’s complaint regarding the habitual offender sentence.

Reversed and remanded for further proceedings.

WHATLEY and STRINGER, JJ., Concur.


text:
    Michael Bernard STONE, Appellant, v. Melvin J. STONE, Rolelia S. Moore, Carrie M. Bell, James D. Stone, Jacquelyn S. Cress, Carolyn S. Holifield, and Melvin M. Stone, Appellees.
    Nos. 2D03-2581, 2D03-2591.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.

      Michael Bernard Stone, pro se.
    Kay J. McGucken of Kay J. McGucken, P.A., Tampa, for Appellees.
   SALCINES, Judge.

In this consolidated appeal, Michael Bernard Stone appeals the denial of his pro se “Complaint-Motion to Enforce Settlement for Failure to Perform Accord and Motion for Property Lien Attachment and For Wage Garnishment Against All Plaintiffs” in circuit court case numbers 00-4215 and 00-4865. In the “complaint-motion,” Mr. Stone sought to enforce the terms of a settlement agreement he had entered into with Melvin J. Stone, Rolelia S. Moore, Carrie M. Bell, James D. Stone, Jacquelyn S.Cress, Carolyn S. Holifield, and Melvin M. Stone (“Appellees”). We affirm in part and vacate in part the single order entered for both cases.

This case originated when an action for partition of certain real property was filed by the Appellees in case number 00-4215. In response to that action, Mr. Stone filed a counterclaim. Shortly thereafter, Mr. Stone filed a complaint in case number GO-4865 against the Appellees and other individuals in which he asserted that his property rights in this same real property had been violated.

Several months later, the parties entered into a “Stipulated Settlement and Release” in case number 00-4215. One of the conditions of the settlement agreement was that Mr. Stone would voluntarily dismiss his pending actions. The settlement agreement was not presented to the trial court for approval and no final judgment was entered in either case. Mr. Stone filed notices of voluntary dismissal with prejudice in both cases. The voluntary dismissal filed in case number 00-4865 closed the case because Mr. Stone was the plaintiff in that action. His voluntary dismissal in case number 00=4215 concluded the case relating to his counterclaim. The case was not closed because the Appellees, as plaintiffs, did not file a notice of dismissal. That matter remains pending.

One year and five months later, Mr. Stone filed the “complaint-motion” which is the subject of the present appeal. The trial court entered a single order for both cases denying the motion. This order must be vacated as it relates to case number 00-4865 because the trial court did not have jurisdiction to consider the “complaint-motion” in that closed ease. See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 802 (Fla.2003); MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000). We do not comment on the merits of the “complaint-motion” filed by Mr. Stone relating to case number 00-4865 because the trial court’s order “is not entitled to the preclusive effect of res judicata.” See 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1299 (Fla. 2d DCA 1994); Hoechst Celanese Corp. v. Fry, 693 So.2d 1003, 1007, 1009 (Fla. 3d DCA 1997). Therefore, the order denying Mr. Stone’s “complaint-motion” as to case number 00-4865 is vacated, and the matter is remanded with directions for the trial court to dismiss the proceeding below relating to that case.

The trial court did have jurisdiction to consider Stone’s motion as it relates to case number 00-4215. On this issue, the record before this court only contains the “complaint-motion” filed by Mr. Stone. There is no indication in the record that this matter was noticed for an evidentiary hearing or that a hearing was conducted. There is nothing in the record which would establish that the trial court erred when it apparently summarily denied the “motion-complaint.” The burden of proof on appeal lies with the appellant to demonstrate that the trial court erred. See Green-Mar Builders, Inc. v. Pearlman, 109 So.2d 601, 602 (Fla. 3d DCA 1959). We must affirm because no reversible error has been shown in case number 00-4215 with respect to the trial court’s order denying Mr. Stone’s “complaint-motion.”

Affirmed as to that portion of the order which deals with case number 00-4215. The portion of the order relating to case number 00^4865 is vacated, and the matter is remanded with directions as set forth in this opinion.

WHATLEY and STRINGER, JJ„ Concur.

      . We note that the lack of jurisdiction can be challenged at any time and may be considered independently by the appellate court, even if the issue was never raised in the trial court. See 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994); Hoechst Celanese Corp. v. Fry, 693 So.2d 1003, 1007 (Fla. 3d DCA 1997).

      . The record on appeal only contains the settlement agreement which was filed in case number 00-4215. If a settlement agreement was entered into by the parties relating to case number 00-4865, Mr. Stone could file a new action to enforce the terms of that settlement agreement. As the Fourth District explained in MCR Funding, 771 So.2d at 34-35: On some occasions, as in the instant case, settlement is reached, and dismissal is later achieved by the parties without an order of court pursuant to Florida Rule of Civil Procedure 1.420.... By voluntarily dismissing their suit, the litigants have removed their dispute from the judge's consideration. And, under this scenario, the trial court may not rely on its inherent power to enforce its own orders since there is no judgment or order for the court to enforce. In this instance, the parties would ordinarily have to pursue a new breach of contract action to enforce the settlement agreement.


author: STRINGER, Judge.

text:
    Michael CHAPARRO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1804.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.

      Nathaniel B. Kidder, St. Petersburg, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Michael Chaparro, Jr., seeks review of his judgment and sentence for attempted trafficking in cocaine and conspiracy to traffic in cocaine. Chaparro correctly asserts that the trial court abused its discretion in admitting his admissions and confession in evidence and erred in subsequently denying his motion for judgment of acquittal based on a lack of corpus delicti. Accordingly, we reverse the conviction for conspiracy to traffic in cocaine. Because a presumption of vindictiveness arose when the trial court initiated plea discussions and the record does not rebut that presumption, we order that resen-tencing be conducted by a different trial judge. We affirm as to all other issues.

The charges in this case arose from a sting operation culminating in a purchase of cocaine by Chaparro from a confidential informant (Cl). The details of the drug sale were formalized during a series of monitored phone calls between Chaparro and the Cl. Chaparro told the Cl that he wanted to purchase two kilos of cocaine— one for “his man” and one for himself. Chaparro said “his man” owns a business and would not be available until after 7 p.m. Chaparro told the Cl he knew the “money man” because the Cl had seen the “money man” with Chaparro on previous occasions, but the Cl never testified as to the identity of the “money man.” There was no evidence that a third party was present during the phone calls. The drug-transaction was set to take place at a McDonald’s parking lot.

Immediately prior to the time of the scheduled transaction, Chaparro had been at his apartment with a man named Edwin Soto. Soto arrived at Chaparro’s apartment and went inside for approximately four minutes. The pair then exited the apartment, got into their own vehicles, and drove to the McDonald’s parking lot. The men were not observed exchanging any packages or money at Chaparro’s apartment. Upon his arrival at the McDonald’s, Chaparro parked his vehicle in a parking space and approached the Cl on foot. The two walked to Chaparro’s vehicle, and the drugs were exchanged for money there. Soto arrived at the McDonald’s shortly after Chaparro, but he did not participate in the transaction with the Cl. Instead, Soto entered the drive-thru lane and remained there throughout the transaction.

As soon as the drugs were exchanged for money, both Chaparro and Soto were arrested and read their rights. Soto refused to give a statement without counsel, but Chaparro told police he was at the McDonald’s to buy the drugs on Soto’s behalf. At trial Soto testified that he and Chaparro were on their way to the gym when they stopped at the McDonald’s to get something to eat. He denied any knowledge of the drug transaction.

Chaparro .objected to the admission of his statements to the Cl and to police because the State had not established corpus delicti or that the crime of conspiracy had been committed. Admissions or confessions of a defendant may not be admitted in evidence absent independently established corpus delicti. Burks v. State, 613 So.2d 441, 444 (Fla.1993). The primary purpose behind the rule “is to protect a defendant from being convicted of a nonexistent crime due to ‘derangement, mistake or official fabrication.’ ” Baxter v. State, 586 So.2d 1196, 1198 (Fla. 2d DCA 1991) (quoting State v. Allen, 335 So.2d 823, 825 (Fla.1976)). This concern is especially prevalent in cases involving inchoate crimes such as conspiracy. “For many rational or irrational reasons, during a criminal transaction such as the purchase of illegal drugs, a person may make untrue statements suggesting the involvement of a fictitious partner or a real person unconnected to the transaction.” Id. at 1199.

Thus, in order to establish the corpus delicti of conspiracy, the State must present “substantial evidence that the defendant and a coconspirator agreed to commit a crime and that the defendant intended to commit the offense.” Id. Corpus delicti may not be established solely by a confession, but confessions and admissions are properly considered in connection with other evidence to establish corpus delicti. Hodges v. State, 176 So.2d 91, 92 (Fla.1965); Baxter, 586 So.2d at 1200. This evidence may be presented before or after the admission of the statements. See Hodges, 176 So.2d at 93; McIntosh v. State, 532 So.2d 1129, 1131 (Fla. 4th DCA 1988).

Aside from Chaparro’s admissions and confession, the only evidence that would support a conclusion that Chaparro and Soto agreed to traffic in cocaine was Soto’s presence at the crime scene. However, Soto’s presence is not “substantial evidence” of an agreement to traffic in cocaine, even when considered in conjunction with Chaparro’s statements. Soto merely waited in the McDonald’s drive-thru lane while Chaparro attempted to purchase a large quantity of drugs from the Cl in the McDonald’s parking lot. Soto did not participate in the transaction, and there is no record evidence of any conversations involving Soto or otherwise suspicious behavior by Soto. Thus, the trial court abused its discretion in admitting Chaparro’s statements at trial.

Additionally, based on this evidence, the State failed to establish a prima facie case of conspiracy sufficient to submit the case to the jury. Corpus delicti must be established beyond a reasonable doubt to survive a motion for judgment of acquittal. Schwab v. State, 636 So.2d 3, 6 (Fla.1994). We therefore reverse Chaparro’s conviction for conspiracy to traffic in cocaine.

There are also two sentencing issues that merit our attention. First, Cha-parro claims that the trial court’s sentence was presumptively vindictive because it was harsher than the sentence originally offered by the court. In order to determine whether there is a reasonable likelihood that the trial court imposed a harsher sentence as a sanction for refusing a plea offer, courts should consider the totality of the circumstances surrounding the plea. Wilson v. State, 845 So.2d 142, 156 (Fla.2003). However, if the court initiates plea negotiations or the court’s remarks demonstrate that it has deviated from the role of neutral arbiter, then a presumption of judicial vindictiveness arises when the court subsequently imposes a harsher sentence. Id.

From the record, it appears that Judge Downey initiated plea negotiations immediately after trial by offering Chapar-ro twenty years if he entered a guilty plea to a failure to appear charge that was pending. Chaparro expressed a desire to present witness testimony regarding his good character and declined the offer. At the subsequent sentencing hearing, the court heard the witness testimony regarding Chaparro’s character and imposed a sentence of thirty years with ten years suspended to be followed by ten years of probation. The court explained that it was imposing the sentence in consideration of the serious nature of the crime.

Because Judge Downey initiated plea negotiations by offering Chaparro a twenty-year sentence, there is a presumption of vindictiveness. This presumption was not rebutted at the subsequent sentencing hearing. Accordingly, Chaparro is entitled to be resentenced by a different judge on remand. See Wilson, 845 So.2d at 159; Harris v. State, 845 So.2d 329, 331 (Fla. 2d DCA 2003).

Second, Chaparro argues that the trial court erred in imposing a fifteen-year mandatory minimum on his conviction for attempted trafficking in cocaine. Chapar-ro’s counsel has not preserved this issue for review by objecting at sentencing or filing a motion for posteonviction relief pursuant to Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So.2d 452, 456 (Fla.2003). However, because we are reversing Chaparro’s conspiracy conviction, he will have to be re-sentenced using a different scoresheet. We therefore address Chaparro’s argument to aid the judge at resentencing.

Section 893.135(l)(b)(l)(c), Florida Statutes (2001), authorizes a fifteen-year mandatory minimum sentence for trafficking in 400 grams or more but less than 150 kilograms of cocaine. However, Chaparro was not convicted of a violation of section 893.135 but an attempted violation of that section. Section 777.04(4)(c), Florida Statutes (2001), provides that if the offense attempted is a first-degree felony, then it is punishable as a second-degree felony as provided in sections 775.082, 775.083, or 775.084. None of those sections authorize the imposition of a fifteen-year mandatory minimum sentence. Because Chaparro should have been sentenced pursuant to sections 775.082, 775.083, and 775.084, the imposition of the mandatory minimum under section 893.135(l)(b)(l)(c) is erroneous.

Reversed and remanded for resentenc-ing.

NORTHCUTT and DAVIS, JJ., Concur.


text:
    Stephen BERUBE a/k/a Steven Albert Berube, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2933.
    District Court of Appeal of Florida, Second District.
    June 4, 2004.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Stephen Berube raises two issues on appeal from his judgment and sentence for robbery with a weapon. We find merit only in his argument that he was illegally sentenced as a prison releasee reoffender (PRR) and reverse for the trial court to strike his PRR sentence.

Wearing underwear on his head as a disguise, Berube rode his bicycle to the Totally Convenient Food Mart where he used a pellet gun to rob the store. Notwithstanding, a jury of his peers saw through this disguise and convicted him. Fortuitously for Berube, however, this caper occurred on September 2, 2002, three years and one day after he was released from prison on September 1, 1999. The State argued, and the trial court believed, that the crime was committed within three years of Berube’s prison release date, thus exposing him to a PRR sentence under section 775.082(9)(a)(l), Florida Statutes (2002). The State contended that the proper day to begin counting the time between Berube’s release and the crime was the day after Berube was released, or September 2, 1999. However, even if the clock started ticking for Berube on September 2, 1999, it would have stopped on September 1, 2002. This is so because, to the nanosecond, a complete year expires at the exact moment before its anniversary, never after.

Apparently in anticipation that the PRR sentence might not survive appellate review, the trial court covered all of its bases by sentencing Berube to a thirty-one year habitual offender sentence concurrent to his thirty-year PRR sentence. Thus on remand the trial court has only to strike the PRR sentence.

Reversed and remanded with instructions that the trial court strike the PRR sentence.

WHATLEY and NORTHCUTT, JJ„ Concur.