text:
    William Keith ROBEY v. STATE of Alabama.
    CR-05-1346.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    William Keith Robey, pro se.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   SHAW, Judge.

William Keith Robey appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his January 22, 1991, conviction, entered pursuant to a guilty plea, for unlawful possession of a controlled substance and his resulting sentence of one year and one day in prison. Robey stated in his petition that he did not appeal.

Robey filed his Rule 32 petition on January 12, 2006. In his petition, Robey alleged that the trial court lacked jurisdiction to accept his plea because, he said, the trial court never informed him of his right to appeal or of his right to have counsel appointed to represent him on appeal if he was determined to be indigent. See Rule 26.9(b)(4), Ala.R.Crim.P. After receiving a response from the State, the circuit court summarily denied Robey’s petition on March 31, 2006.

On appeal, Robey contends that the circuit court erred in summarily denying his petition without conducting an evidentiary hearing because, he says, his claim is jurisdictional, meritorious on its face, and was unrefuted by the State. In support of his argument, Robey cites to Lancaster v. State, 638 So.2d 1370 (Ala.Crim.App.1993). In Lancaster, the appellant filed a Rule 32 petition alleging, among other things, that he was sentenced in absentia without being afforded allocution, Rule 26.9(b)(1), Ala. R.Crim.P., and without being notified of his right to appeal, Rule 26.9(b)(4), Ala. R.Crim.P., and that he was not appointed counsel to represent him on appeal after he was found to be indigent, Rule 26.10, Ala.R.Crim.P. The circuit court summarily denied the petition, but this Court remanded for an evidentiary hearing, holding:

“[T]he appellant’s presence at the sentencing hearing, his ability to speak on his behalf before sentence is pronounced, notification of his right to appeal, and his right to have counsel appointed on appeal are jurisdictional matters, which cannot be waived. Because the appellant’s claims of lack of jurisdiction are not procedurally barred and are not contested, the trial court should have held an evidentiary hearing on the appellant’s petition, which was meritorious on its face, i.e., one which contains matters and allegations which, if true, entitle the petitioner to relief. Ex parte Boatwright, 471 So.2d 1257 (Ala.1985); Smith v. State, 581 So.2d 1283 (Ala.Cr.App.1991).”

638 So.2d at 1373 (emphasis added).

Lancaster has already been overruled to the extent that it held that the failure to afford a defendant allocution before sentencing is a jurisdictional defect. See Shaw v. State, 949 So.2d 184 (Ala.Crim.App.2006) (“A claim that a defendant was not afforded the opportunity to address the court before the sentence is imposed is not a jurisdictional claim.”). The additional holding in Lancaster — that the failure to comply with Rule 26.9(b)(4), Ala.R.Crim.P., is a jurisdictional defect — is inconsistent with numerous cases in which this Court has recognized that a trial court’s failure to comply with Rule 26.9(b)(4), Ala. R.Crim. P., and to inform a defendant of his or her right to appeal a guilty-plea conviction can be harmless error. See Tanner v. State, 624 So.2d 703, 706 (Ala.Crim.App.1993) (“[B]ecause the appellant has in fact appealed his convictions and has not suffered any prejudice whatsoever, the error in the failure of the trial court to advise the appellant of his right to appeal is harmless. Rule 45, A[la].R.App.P.”); Pardue v. State, 566 So.2d 502 (Ala.Crim.App.1990) (same); and Stephenson v. State, 469 So.2d 1355 (Ala.Crim.App.1985) (same). Jurisdictional defects are not subject to a harmless-error analysis. See, e.g., Tucker v. State, 833 So.2d 668, 669 (Ala.Crim.App.2001) (“ ‘[Jurisdictional issues [are not] subject to a harmless error analysis.’ ”), quoting Poole v. State, 846 So.2d 370, 387 (Ala.Crim.App.2001). See also Ash v. State, 843 So.2d 213, 219 (Ala.2002) (Brown, J., concurring in the result, joined by Houston, J.) (“A jurisdictional defect defies analysis by a harmless-error standard and is per se ground for reversal, requiring no consideration of whether the defendant was prejudiced as a result of the error.”), overruled on other grounds by Ex parte Seymour, 946 So.2d 536 (Ala.2006). As we have already held with respect to the failure to afford allocution under Rule 26.9(b)(1), Ala.R.Crim.P., we now hold that the failure of a trial court to comply with Rule 26.9(b)(4), Ala.R.Crim.P., and to advise a defendant of his or her right to appeal a guilty-plea conviction and to have counsel appointed on appeal if he or she is indigent is not a defect that impacts the jurisdiction of the trial court, and we expressly overrule Lancaster to the extent that it holds otherwise.

Because Robey’s claim does not implicate the jurisdiction of the trial court, it is time-barred by Rule 32.2(c), Ala.R.Crim.P., because Robey’s petition was filed almost 15 years after the time for filing an appeal had lapsed. Therefore, summary denial of Robey’s petition was proper.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . Robey additionally argued that he was prejudiced by these omissions because, he said, he had meritorious issues to raise on appeal.

      . Effective August 1, 2002, Rule 14.4, Ala. R.Crim.P., was amended to also include the requirement that the trial court inform a defendant of the limited right to appeal a guilty-plea conviction.

      . This Court has so held in numerous unpublished memoranda.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Gary Allen ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D06-3749, 2D06-4061.
    District Court of Appeal of Florida, Second District.
    March 16, 2007.
    Eric John Kuske, Tampa; and David T. Weisbrod, Tampa, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

Gary Allen Roberts appeals the orders entered in two separate circuit court cases that summarily denied his two motions for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We reverse both orders, and we remand for further proceedings.

On April 21, 2004, Mr. Roberts pleaded no contest to the charges filed in two separate circuit court cases, and the same attorney represented him in both eases. He subsequently filed a rule 3.850 motion in the first circuit court case, no. CF03-004148-XX, alleging that counsel provided ineffective assistance by failing to file a motion to suppress the illegal search of his residence. The postconviction court initially found this ineffective-assistance-of-counsel claim to be facially sufficient and ordered the State to respond. The State filed a fifteen-page response filled with references to the record. However, the State did not attach any portions of the record to support its arguments. In the order denying Mr. Roberts’ motion, the postconviction court merely adopted the State’s response and failed to make any findings. In addition, the postconviction court failed to attach to its order any portions of the record. Therefore, the postconviction court’s order in the first case does not support the summary denial of Mr. Roberts’ motion. See Loomis v. State, 691 So.2d 34, 35 (Fla. 2d DCA 1997); see also Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995).

In a separate rule 3.850 motion filed in the second case, no. CF03-004755-XX, Mr. Roberts alleged that if he had received counsel’s effective assistance in the first circuit court case, no. CF03-004148-XX, he would not have been subject to the seven-year mandatory minimum in that first case and he would not have been forced to enter a plea in the second case. The postconviction court denied the rule 3.850 motion in the second case, no. CF03-004755-XX, because Mr. Roberts’ counsel was not found to be ineffective in the first case. Because we are reversing the order denying postconviction relief in the first circuit court case, the postconviction court’s order denying relief in the second circuit court case now lacks any foundation.

Accordingly, we reverse the postconviction court’s orders in both cases, and we remand for the reconsideration of Mr. Roberts’ motions. On remand, if the post-conviction court again denies the motions, it shall either attach to its orders those portions of the record that conclusively refute the claims or conduct an evidentiary hearing.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Ronald C. CUNNIFF, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-3651.
    District Court of Appeal of Florida, Second District.
    March 16, 2007.

      Ronald C. Cunniff, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Judge.

Ronald Cunniff petitions for certiorari review of an order dismissing as untimely his motion for mitigation of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We have jurisdiction to review the order. See Byrd v. State, 920 So.2d 825, 826 (Fla. 2d DCA 2006); Seward v. State, 912 So.2d 389, 390 (Fla. 2d DCA 2005). Because the trial court departed from the essential requirements of law in dismissing the motion, we grant the petition, quash the trial court’s order, and remand for the trial court to consider the motion on its merits.

In April 2006, this court affirmed Cun-niffs direct appeal from his conviction and sentence. See Cunniff v. State, 928 So.2d 344 (Fla. 2d DCA 2006) (table). The trial court received our mandate on May 12, 2006. Cunniff filed his motion to mitigate on July 2, 2006, the date on which he placed the motion in the hands of prison officials for mailing. See Haag v. State, 591 So.2d 614, 617 (Fla.1992) (adopting the mailbox rule which provides that a document filed by a prison inmate is deemed filed with the court at the moment the inmate loses control over the document by entrusting delivery or processing to prison officials); Thompson v. State, 761 So.2d 324, 326 (Fla.2000) (citing Haag); Westley v. State, 903 So.2d 312, 313 (Fla. 2d DCA 2005) (citing Haag and Thompson). Under rule 3.800(c), the court had sixty days, or until July 11, 2006, in which to reduce or modify Cunniffs sentence. Thus, Cun-niff timely filed his motion nine days before the expiration of the sixty-day modification period.

On July 21, 2006, the trial court dismissed Cunniffs motion for lack of jurisdiction, stating that Cunniff “filed his motion close to the expiration of said time frame, which has since expired.” The court cited Brantley v. Holloway, 685 So.2d 31 (Fla. 2d DCA 1996), in support of its dismissal order.

In Brantley, the defendant allegedly mailed his motion for reduction of sentence four days before the sixty-day period expired, and the trial court received the motion on the last day that it could be timely filed. The trial court denied the motion, finding that it was not timely. Brantley filed a petition for writ of mandamus, challenging the dismissal of his motion. This court recognized that Brantley had filed the motion before the sixty-day period expired but concluded that Brantley was not entitled to relief. We explained that “[b]y waiting until the last moment to mail his motion, Mr. Brantley never gave the trial court a meaningful opportunity to rale on his motion within the allotted jurisdictional time.” Id. at 32. Further, “Mr. Brantley filed his motion knowing that the trial court would have virtually no time to consider it and did not request an enlargement of time pursuant to rale 3.050.” Id. We acknowledged that a trial court may enlarge the time in which it could consider a timely filed motion to mitigate sentence, citing to Moya v. State, 668 So.2d 279 (Fla. 2d DCA 1996). But we added that “Moya does not apply when the loss of jurisdiction is caused by the defendant’s delay in either filing a timely motion or a proper motion for enlargement of time.” 685 So.2d at 32.

Here, Cunniff is deemed to have filed his motion nine days prior to the expiration of the sixty-day period under rule 3.800(c), and the trial court received the motion six days prior to the expiration of the sixty-day period. Unlike the situation in Brantley, the trial court did not lose jurisdiction hours after actual receipt of the motion. Under these circumstances, the trial court should have either considered the motion on its merits or extended the time for considering the motion. Accordingly, we grant the petition, quash the order dismissing the motion as untimely, and remand for the trial court to consider the motion on its merits.

Petition granted.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The motion bears a stamp reflecting that the clerk of the court actually received the motion on July 5, 2006, six days before expiration of the sixty-day time period.


author: FULMER, Chief Judge.

text:
    Scott BAKOS, Appellant, v. Cynthia BAKOS, Appellee.
    No. 2D05-2163.
    District Court of Appeal of Florida, Second District.
    March 16, 2007.

      Law Offices of Rubinstein & Holz, P.A., Fort Myers and Cynthia L. Greene of Law Offices of Greene Smith McMillan, P.A., Miami, for Appellant.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   FULMER, Chief Judge.

In this appeal of a partial final judgment and a final judgment of dissolution of marriage, Scott M. Bakos (the Husband) challenges the trial court’s rulings that set aside the antenuptial agreement and the postnuptial agreement executed by the Husband and Cynthia Bakos (the Wife) and the trial court’s subsequent equitable distribution of the parties’ marital assets, award of alimony to the Wife, and award of child support. We affirm the trial court’s ruling that the antenuptial agreement is voidable and reverse the trial court’s ruling on the postnuptial agreement. We affirm the final judgment to the extent that it dissolves the parties’ marriage. In all other respects, we reverse and remand for further proceedings.

The Husband, a dentist, and the Wife, a dental hygienist, were married in 1987 and had one child together. On the day before the wedding, the parties executed an antenuptial agreement that, among other things, delineated the parties’ respective separate property (with the Husband’s net assets at about $800,000 and the Wife’s at about $12,000) and recited mutual waivers of rights thereto; listed a jointly owned lot (deemed to be owned in a 75:25 ratio by the Husband and Wife, respectively); recited that the Husband would adopt the Wife’s child but that the Wife would get custody upon separation or divorce; recited that both parties waived alimony in the event of divorce and waived any death benefits acquired due to the marriage; and allowed for modification of the agreement in writing.

Just under six years into the marriage, the parties executed another agreement (the “postnuptial agreement”) to modify the antenuptial agreement. The postnup-tial agreement, among other things, recited that the jointly owned lot (now the site of the marital home) was owned 50:50 by the parties; revoked the earlier provisions concerning the Wife’s child (who had been adopted by the Husband) and recited an agreement calling for joint custody of the children upon divorce; eliminated the waiver of death benefits; and recited that the antenuptial agreement would remain in force as to all provisions not modified in the postnuptial agreement. The postnup-tial agreement did not expressly address the provisions in the antenuptial agreement regarding alimony and the parties’ separate property.

The Husband filed for dissolution in May 2000. The court bifurcated the proceedings, hearing matters related to the two agreements over two days in April 2002 and matters related to equitable distribution, alimony, custody, and child support in August and November 2004. The April 2002 hearings resulted in a partial final judgment in which the trial court determined that the antenuptial agreement and postnuptial agreement “are deemed voidable by the Wife and are hereby declared to be void and of no force and effect.” The 2004 hearings resulted in the final judgment of dissolution of marriage.

The Husband’s first point on appeal concerns whether the trial court erred in determining that the antenuptial agreement was voidable by the Wife. We review a trial court’s determination of the voida-bility of an antenuptial agreement for competent, substantial evidence. Simzer v. Simzer, 514 So.2d 372, 373 (Fla. 2d DCA 1987). To support its determination that the antenuptial agreement was voidable, the trial court found, among other things, that “the facts of this case are similar to the facts” of Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976), such that Lutgert should control and that the Husband gave the Wife “an ultimatum[,] ‘Sign or no marriage[,]’ ” upon presenting the agreement to her within twenty-four hours of the wedding. Under Lutgert, when one party to an antenuptial agreement enjoys a “grossly disproportionate benefit” and when there are “sufficient coercive circumstances surrounding the execution of the agreement as to give rise to a presumption of undue influence or overreaching,” that party has the burden of coming forth with evidence on the issue of voluntariness on the part of the other party. 338 So.2d at 1115-16; see also Casto v. Casto, 508 So.2d 330, 333 (Fla.1987) (noting that one of two separate grounds for setting aside a settlement agreement is that the agreement “was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching”). Although the testimony presented at the hearings concerning the circumstances surrounding the execution of the antenuptial agreement was conflicting, our review of the transcripts leads us to conclude that there was competent, substantial evidence to support the trial court’s determination as to the Wife’s ability to avoid the antenuptial agreement.

We note also that, contrary to the trial court’s order finding that the ante-nuptial agreement was both “voidable by . the Wife” and “void,” the agreement is only voidable by the Wife; it was not void ab initio. See Restatement (Second) of Contracts § 7 cmt. b (1981) (“Typical instances of voidable contracts are those ... where the contract was induced by fraud, mistake, or duress.... ”); Lutgert, 338 So.2d at 1117 (concluding that “[t]he wife is entitled to avoid the agreement”). This distinction has significant consequences with respect to whether the postnuptial agreement ratified the antenuptial agreement, an issue that, as we note below, the trial court will need to consider on remand. See Restatement (Second) of Contracts § 174 cmt. b (“The distinction between ‘void contract’ and a voidable contract has important consequences. For example, a victim of duress may be held to have ratified the contract if it is voidable, but not if it is ‘void.’ ”); Davis v. Hefty Press, 152 Fla. 385, 11 So.2d 884, 886 (1943) (duress in execution of mortgage-related instrument would make the instrument voidable, not void, and thus subject to ratification). Our affirmance of the trial court’s ruling on the antenuptial agreement is thus limited to the court’s determination that the agreement is voidable by the Wife.

We next consider the Husband’s challenge to the trial court’s rulings regarding the postnuptial agreement. The trial court’s sole finding to support the postnuptial agreement’s voidability was that it did “not cure the defects in the first Ante-Nuptial Agreement especially since the Wife still did not have her own counsel.” As the Husband correctly points out on appeal, the lack of competent counsel is an erroneous basis for setting aside such an agreement. See Casto, 508 So.2d at 384. The first part of the trial court’s ruling — that the later agreement does not cure the defects of the earlier one — is a conclusory statement for which no factual findings were made. Further, the trial court “deems” the postnuptial agreement to be voidable by the Wife and declares it to be void without identifying or addressing either of the two separate grounds upon which such an agreement may be challenged. See id. at 333 (listing the two grounds as, first, that the agreement was reached as a result of duress, etc., and second, a multi-element, burden-shifting test in which unreasonableness and either concealment by the defending spouse or lack of knowledge by the challenging spouse must be established).

We must therefore reverse the trial court’s determination regarding the post-nuptial agreement and remand for the court to make specific findings as to whether the postnuptial agreement is voidable by the Wife based on either (or both) of the two grounds delineated in Casto. See id. If the trial court determines that the postnuptial agreement is not voidable by the Wife, the court must then address the issue of whether, as the Husband contends, the postnuptial agreement amounts to a ratification of the antenuptial agreement. See Restatement (Second) of Contracts § 174 cmt. b; Davis, 11 So.2d at 886; Zurstrassen v. Stonier, 786 So.2d 65, 71 (Fla. 4th DCA 2001) (noting that the issue of ratification is one of fact). On remand, the court may find it necessary to hold additional hearings to take evidence on this issue.

Because the proceedings on remand may require the trial court to revisit its rulings as to equitable distribution, alimony, and child support, we do not consider the points raised on appeal as to these issues at this time. Accordingly, we affirm in part and reverse in part and remand for further proceedings.

Affirmed in part, reversed in part, and remanded with directions.

KELLY, J„ and NIELSEN, RICHARD A., Associate Judge, Concur.

      . The Wife’s child from a previous relationship was adopted by the Husband but attained majority shortly after the Husband filed for dissolution; as such, this child does not play a part in these proceedings.


author: LAWSON, J.

text:
    Carl Joe HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1302.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Carl Joe Howard appeals from his conviction for battery (and probationary sentence imposed by the trial court), raising two issues. First, he alleges error in the denial of his motion to disqualify the trial judge. Second, he argues that the trial court erred in denying his motion for mistrial. Although we find that the motion to disqualify was properly denied, we agree with Howard as to his second point on appeal, and reverse the conviction.

Howard was charged by information with one count of aggravated assault with a deadly weapon, and one count of simple battery. He was acquitted as to the felony assault charge, but the State’s case was problematic with respect to both charges. The victim, Martha Jay, presented inconsistent testimony at trial, and was thoroughly impeached with prior inconsistent statements during cross examination. Her testimony was also inconsistent with that of the other alleged eye-witness, Ms. Jay’s son. Finally, the injuries that Ms. Jay claimed to have sustained as a result of the battery could not be confirmed by the law enforcement officers who responded to the scene. Both officers testified that the physical evidence at the scene was not consistent with Ms. Jay’s statement of events.

Prior to trial, Howard’s counsel filed both a verified motion to disqualify the trial judge and a written motion in limine to preclude statements at trial regarding any of Howard’s “other crimes or bad acts.” The factual basis for the disqualification motion involved a dependency proceeding over which the trial judge presided prior to or during the course of Howard’s criminal case. The dependency case dealt with a minor child that Howard had fathered with the victim. According to the verified motion, the judge heard damaging evidence regarding Howard, made rulings contrary to Howard’s interests or position, and found the victim’s testimony during the dependency trial to have been credible. We find none of these allegations to be legally sufficient to support a motion to disqualify. See, e.g., Winburn v. Earl’s Well Drilling & Pump Service, 939 So.2d 199, 200 (Fla. 5th DCA 2006) (recognizing prior adverse rulings by a trial judge are not a legally sufficient ground upon which to base a motion to disqualify); Scott v. State, 909 So.2d 364 (Fla. 5th DCA 2005) (recognizing the misconduct of a litigant during a prior case over which a judge presides is no basis to disqualify the judge from presiding over other cases involving the same litigant); Rivera v. State, 717 So.2d 477, 481 (Fla.1998) (“The fact that the judge has made adverse rulings in the past against the defendant, or that the judge has previously heard the evidence, or ‘allegations that the trial judge had formed a fixed opinion of the defendant’s guilt, even where it is alleged that the judge discussed his opinion with others,’ are generally considered legally insufficient reasons to warrant the judge’s disqualification.”) (quoting Jackson v. State, 599 So.2d 103, 107 (Fla.1992)).

The motion also alleges that the judge made a statement during the dependency case likening Howard to Charles Manson. Although a comment of this nature might serve as a sufficient basis for disqualification, depending upon what was said and the circumstances under which it was said, neither the motion itself nor anything in the record on appeal demonstrates that the motion was timely filed, the exact nature of the comment, or its context. Therefore, we agree that the motion was legally insufficient and properly denied.

A motion to disqualify must generally be filed “within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion,” and must “allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification.” Fla. R. Jud. Admin. 2.160(c), (e). With respect to timing, the motion does not allege when the purported comment was made, and nothing in the record demonstrates that the motion was timely. See Carter v. Howey, 707 So.2d 906, 906 (Fla. 5th DCA 1998) (holding “this court is unable to determine that the motion was timely because the father did not include the dates of the relevant hearings in the motion and the record does not contain transcripts of these hearings”).

With respect to the trial court’s purported comment, even if the statement was made during the course of the dependency trial, based upon evidence presented, it would not serve as a basis for disqualifying the judge from presiding over other matters involving Howard unless the words spoken evidenced actual bias. See Waterhouse v. State, 792 So.2d 1176, 1192-94 (Fla.2001) (holding sentencing judge’s comment that defendant was “a dangerous and sick man and that many other women have probably suffered because of him,” made during official proceedings and based upon evidence presented to the court was not sufficient to support a motion to disqualify the judge from other proceedings involving the defendant because the comment “did not constitute a prejudgment of any pending or future motions that the defendant might file” nor indicate “a predisposed bias against the defendant”); Wargo v. Wargo, 669 So.2d 1123, 1124 (Fla. 4th DCA 1996) (“Generally, mere characterizations and gratuitous comments, while offensive to the litigants,- do not in themselves satisfy the threshold requirement of a well-founded fear of bias or prejudice.”); Oates v. State, 619 So.2d 23 (Fla. 4th DCA 1993) (holding trial judge’s comment that the defendant was “being an obstinate jerk” was insufficient to support a motion to disqualify the judge when the defendant had continuously interrupted the proceedings to the extent that he had to be removed from the courtroom), rev. denied, 629 So.2d 134; Brown v. Pate, 577 So.2d 645, 647 (Fla. 1st DCA 1991) (“A judge may form mental impressions and opinions during the course of presentation of evidence, as long as she does not prejudge the case.”). Although a comment likening a party to a notoriously bad person could be made in a manner or context demonstrating that the judge making the comment was prejudiced aghinst the party, the scant allegations of Howard’s motion fall short of making the necessary showing. Therefore, we conclude that the trial court correctly denied the motion as legally insufficient.

With respect to the second issue on appeal, Howard’s counsel argued the motion in limine prior to the start of trial. There was no objection from the State, and the court granted the motion. During trial, however, and over defense objection, the victim was allowed to testify that: (1) she was familiar with Howard’s prior “mental problems,” (2) she had been told that Howard sold a camper-trailer that she owned (but left on his property at some point in the past) in exchange for crack cocaine to give to his current girlfriend; and (3) she had obtained an injunction prohibiting Howard from having any contact with her after the alleged assault and battery, but that he continued to write her, telling her that he was watching her from a lot near her new residence, in a series of “long rambling” letters that were “just crazy — God was telling him I was doing this or that.”

With this testimony as part of the backdrop for analyzing Howard’s motion for mistrial, the State asked the victim about the child Howard had fathered with her prior to the alleged assault and battery. The victim began to explain that when she lived in her trailer behind Howard’s house, he had a key to the trailer. She then explained that she would “pass out” from back pain she was experiencing, and Howard would come into the trailer. Concerned about where Ms. Jay’s narrative was headed, defense counsel interrupted with an objection, which the trial court properly sustained. The judge then reminded the State of his ruling on Howard’s motion in limine. Despite the warning, this exchange followed:

Prosecutor: [D]id you have any type of relationship with him after you broke up?
Ms. Jay (victim): Only when he broke in and raped me while I was unconscious.

Defense counsel immediately moved for a mistrial. The trial court denied the motion and simply instructed the jury to ignore Ms. Jay’s response. Under the circumstances, we find that the curative instruction was inadequate, and that the motion for mistrial should have been granted. Given the quantity and quality of evidence before the jury, and in light of the other evidence improperly presented over defense objection, we cannot say beyond a reasonable doubt that the victim’s statement that Howard had raped her in the past did not affect the verdict. Cf. Cooper v. State, 659 So.2d 442 (Fla. 2d DCA 1995) (finding victim’s statement that defendant had raped her daughter in incident not charged in pending case was so prejudicial as to warrant mistrial given circumstances of that case).

Therefore, we reverse and remand this matter back to the trial court.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . § 784.02 l(l)(a), Fla. Stat. (2005).

      . § 784.03, Fla. Stat. (2005).


author: PLEUS, C.J.

text:
    B.L. and M.L., Parents of L.L., A Child, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D06-1228.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    Timothy A. Straus, of Moyer, Straus & Patel, Altamonte Springs, and Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellants.
    Amy Beauchaine, Orlando, for Appellee, Participant/Custodian.
    Charles D. Peters, Orlando, for Appel-lee, Department of Children and Families.
   PLEUS, C.J.

B.L. and M.L., parents of L.L., a minor, appeal from an order permanently committing L.L. to the long-term custody of a relative pursuant to sections 39.621, et seq., Florida Statutes.

The trial court ordered long-term relative placement of L.L. with the child’s maternal aunt and her husband with whom the child had been residing for some eighteen months. The court did so based on a finding that the parents had yet to comply with a case plan despite the passage of more than one year. The court found that the child needed permanency, terminated DCF supervision, retained jurisdiction, and expressly recognized that the parents could re-open the case if and when they complied with the case plan.

The parents raise multiple challenges to the order. We have reviewed these claims and find one has merit and requires reversal for reconsideration.

In June 2004, L.L., d/o/b July 25, 2003, was found to be dependent based on evidence that the parents engaged in domestic violence and used illegal drugs. A case plan had been agreed to by the parents and DCF as part of a mediation agreement and the mediation agreement was accepted by the trial court which ordered the parties to comply with its terms. This case plan provided, inter alia, that the parents continue in a program at the Orlando Methadone Treatment Center. Subsequent case plans required that the parents submit to drug evaluations and follow treatment recommendations

The issue of noncompliance with thé case plans was tried at a permanency hearing held in early 2006, and substantial competent evidence was presented that the parents continued to minimize their drug problems and failed to comply with recommendations for treatment of their drug addictions.

The trial court entered the order on appeal on March 16, 2006. The court explained that L.L. deserved permanency and found that the parents had yet to complete the case plan by failing to complete the drug/alcohol evaluation and treatment programs. The court expressed it had concern that “the parents are still on shaky ground,” are dealing with a newborn child and have continued to minimize their drug dependency. The court ordered long-term placement of L.L. with the maternal aunt and her husband, and instructed that the parents could move the court to re-open the case once they completed the case plan and that the court would then set an evidentiary hearing to determine the best interest of the child and if there is a substantial change in circumstances. By a separate order, the court terminated supervision by DCF over L.L., though it did not terminate jurisdiction over the case.

DCF points out that an appellate court “will not reverse an order that determines permanency by directing long-term placement with a relative if there is competent, substantial evidence to support it.” LLC v. Dep’t of Children & Families, 790 So.2d 1239 (Fla. 5th DCA 2001). Additionally, such order must comport with the applicable dictates of Chapter 39, Florida Statutes.

The determinative point on appeal concerns the parents’ claim that the trial court utilized an improper standard and failed to employ the required statutory standard in entering its order placing L.L. in long-term relative care.

According to Chapter 39, Florida Statutes (2006), it is the intent of the Florida Legislature to achieve permanency for every child in the dependency system. § 39.001(l)(h). When it is determined that reunification with either parent is inappropriate, the court must make a permanency-determination for the child. § 89.621(1). Section 39.622, Florida Statutes, provides in pertinent part:

When the parents have either consented to long-term custody, had their parental rights terminated, or failed to substantially comply with a case plan, and the court determines at a judicial review hearing, or at an adjudication hearing held pursuant to this chapter, that reunification is not in the best interest of the child, the court may place the child in the long-term custody of an adult relative or other adult approved by the court who has had custody of the child for at least the 6 preceding months and is willing to care for the child, if all of the following conditions are met....

(Emphasis in original).

The parents argue that the trial court failed to address whether the parents substantially complied with the case plan, instead stating in its order: “The fact that the case plan has not been completed is sufficient to find permanency at this time for this child.”

The parents argue that the term “substantial compliance,” is statutorily defined as something different than merely whether the parents “completed” their case plan. Section 39.01(68), Florida Statutes, contains the applicable definition:

“Substantial compliance” means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.

Conversely, the lack of substantial compliance means that the circumstances which gave rise to creation of the case plan have not been significantly remedied to the extent that the well being and safety of the child will be endangered upon the child’s remaining with or being returned to the parents.

The parents extract a single line out of the order which states that the case plan has not been completed but ignore other findings contained in the order, to wit: “that the parents are still on shaky ground,” “[t]his court has concerns as to their continuing to minimize their drug dependency,” and “the parents are in ‘serious denial about their addiction’.” These additional statements seem to reflect that the circumstances which gave rise to creation of the case plan may not have been significantly remedied.

The parents point out, however, that despite all this, the trial court ordered long-term relative placement of L.L. while almost simultaneously concluding there was no probable cause for sheltering the parents’ newborn, C.L. In fact, a dependency action involving the newborn was dismissed on March 28, 2006, on the same day as the order establishing long-term custodial relationship was signed by the court as to L.L. The parents maintain that it is inconceivable that the trial court could find that the newborn was not at substantial risk of abuse, abandonment or neglect, and yet decide that L.L. would be endangered if she was returned to the parents’ custody.

We agree that the record suggests an anomaly and that the trial court may have erroneously focused solely on the parents’ failure to complete the case plan without consideration of the “substantially comply” language contained in section 39.622. That phrase is a term of art which requires more than just a determination that the case plan has not been completed before long-term relative placement can be ordered.

Accordingly, we reverse and remand for reconsideration on the issue of whether, under section 39.622, the parents failed to substantially comply with the case plan, with “failed to substantially comply with a case plan” meaning that the circumstances which gave rise to creation of the case plan have not been significantly remedied to the extent that the well-being and safety of L.L. will be endangered upon the child’s return to the parents.

REVERSED AND REMANDED.

SAWAYA and EVANDER, JJ., concur.


author: KELLY, Judge.

text:
    Elijah JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-616.
    District Court of Appeal of Florida, Second District.
    March 16, 2007.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Elijah Jackson, Jr., appeals from his judgment and sentence for the grand theft of three Xerox machines. We find merit only in his argument that the trial court erred in imposing certain costs at sentencing.

Jackson filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2) challenging the imposition of certain costs. The trial court granted the motion by order dated May 4, 2006, and entered an amended cost order. However, the amended cost order did not itemize all of the statutory costs and failed to strike other costs that the court acknowledged were improperly imposed. As Jackson points out, the trial court entered a second order correcting these errors on July 20, 2006, but the order was not rendered within sixty days of the filing of his rule 3.800(b)(2) motion and was therefore a nullity. See Whitmore v. State, 910 So.2d 308 (Fla. 2d DCA 2005). After sixty days, Jackson’s motion was deemed denied. See Moore v. State, 933 So.2d 42 (Fla. 2d DCA 2006).

Accordingly, we affirm Jackson’s judgment and sentence and remand for the entry of an amended cost order that reflects the trial court’s corrections in its May 4, 2006, order correcting sentencing error.

Affirmed; remanded with directions.

NORTHCUTT and LAROSE, JJ„ Concur.


text:
    S.H., Mother of C.H. and J.H., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D06-2049.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.

      Linda G. Sasser, St. Augustine, for Appellant.
    Susan W. Fox, of Fox & Loquasto, P.A., Tampa, Wendy S. Loquasto, of Fox & Loquasto, Tallahassee, and Lucy Goddard-Teel, Gainesville, for Appellee, Department of Children and Families.
    Mercedes E. Scopetta, Orlando, for Ap-pellee, Guardian Ad Litem.
   LAWSON, J.

S.H. attempts to appeal from a dependency order directing the Department of Children and Families to temporarily place her two minor children in the custody of their biological father. This non-final order is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3). See Dep’t of Health & Rehab. Sews. v. Honeycutt, 609 So.2d 596 (Fla.1992); In Re B.A.B., 726 So.2d 402 (Fla. 2d DCA 1999); Interest of K.D. & C.M., 679 So.2d 39 (Fla. 2d DCA 1996). However, we can review the order by writ of certiorari. See Fla. R.App. P. 9.040(c). Finding no departure from the essential requirements of the law, we deny the petition.

PETITION DENIED.

GRIFFIN and ORFINGER, JJ., concur.


author: EVANDER, J.

text:
    H.L.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2071.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    James S. Purdy, Public Defender, and Michael Olshefski, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Notwithstanding the State’s confession of error, we affirm the trial court’s restitution order.

In a restitution proceeding, it is the State’s burden to prove the amount of loss for restitution purposes. Domaceti v. State, 616 So.2d 1148 (Fla. 4th DCA 1993). The burden of proof is by a preponderance of the evidence. Santana v. State, 795 So.2d 1112 (Fla. 5th DCA 2001). Fairmarket value is generally the appropriate value to be utilized in determining the amount of restitution. Ibrahim v. State, 866 So.2d 749 (Fla. 5th DCA 2004).

In the present case, appellant was adjudicated guilty of grand theft. He had stolen a firearm, a holster and a small amount of ammunition from the victim. The victim testified as to the date he purchased each of these items, the respective purchase prices, their condition at the time of the theft, and their respective replacement values. Although the victim did not use the term “fair market value” in his testimony, the trial court specifically found the fair market value of the pistol was $700, the holster $50, and the ammunition $10.

We review an order of restitution using an abuse of discretion standard. State v. Hawthorne, 573 So.2d 330 (Fla.1991). The issue is whether the restitution order was supported by competent evidence. J.D.H. v. State, 931 So.2d 241 (Fla. 5th DCA 2006).

Here, there was competent evidence to support the trial court’s conclusion as to the fair market value of each of the stolen items. As we have previously stated: “Fair market value takes into consideration not only the purchase price, but the manner in which the item was used, its condition and depreciation.” Ibrahim, 866 So.2d at 750.

AFFIRMED.

TORPY and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Michael R. KILLILEA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2703.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    Michael R. Killilea, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Michael R. Killilea appeals the order denying his 3.800(a) motion to correct jail credit. He contends the trial court did not credit him with the correct number days he served in the county jail against his Department of Corrections (“DOC”) sentence. While his case was pending before this court, Killilea was released from the DOC. See Toomer v. State, 895 So.2d 1256, 1256-57 (Fla. 1st DCA 2005). Therefore, we DISMISS this appeal as MOOT because Killilea is no longer in DOC’s custody.

THOMPSON, MONACO and EVANDER, JJ. concur.


text:
    Marissa TEJADA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Oregon Television Inc., Appellees.
    No. 1D06-2411.
    District Court of Appeal of Florida, First District.
    March 19, 2007.
    Marissa Tejada, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Tallahassee, for Appellee, Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Dakers v. State, Unemplmt. App. Comm’n, 942 So.2d 957, 957-58 (Fla. 4th DCA 2006).

BROWNING, C.J., BENTON, and LEWIS., JJ., concur.


text:
    Charles M. HATCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1622.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2007.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Arthur v. State, 818 So.2d 589, 591 & n. 1 (Fla. 5th DCA 2002); Clark v. State, 756 So.2d 244, 246 (Fla. 5th DCA 2000); Weathers v. State, 937 So.2d 1132,1134 (Fla. 4th DCA 2006).

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


text:
    Tony PERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2766.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.

      Gary H. Bass, Special Assistant Public Defender, Fort Myers, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Chief Judge.

Tony Person appeals from his conviction for trafficking in cocaine. We reverse. The trial court erred in denying Person’s motion for judgment of acquittal because the State presented no independent proof of Person’s control over the cocaine in question.

Person and three codefendants were charged with one count of trafficking in cocaine by possession pursuant to sections 893.135(l)(b) and 777.011, Florida Statutes (2003). After a police officer conducted surveillance on one side of a duplex and noted the comings and goings of forty to fifty people over the course of an hour or so, a SWAT team served a search warrant via the front door of the residence using loud distraction devices. The twelve people in the residence all attempted to run out the back door at the same time. Three were able to run some distance from the house but were quickly caught. The remaining nine individuals, including Person, fell to the ground near the door and were easily apprehended. Police found a large quantity of cocaine in plain view in the common areas of the residence, including crack cocaine in various stages of processing in the kitchen, and some weapons. No drugs were found on Person, and none of the suspects were checked for drug residue because a water pipe had burst in the process, leaving them all wet. There was no fingerprint evidence on any of the drug packages or weapons.

After the State rested, one of Person’s codefendants moved for a judgment of acquittal, arguing that the State had not presented sufficient evidence of constructive possession as to any of the defendants. Person’s counsel adopted the motion. Noting that this was a “very close case,” the trial court denied the motion. The jury found Person and his three codefen-dants guilty as charged.

On appeal, Person argues that the State failed to present a prima facie case of constructive possession of the cocaine found in the residence. The definition and elements of constructive possession are summarized in the Florida Standard Jury Instructions in Criminal Cases 25.10, which the trial court read to the jury:

Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing [and] (2) knowledge that the thing was within the person’s presence .... [ ]

Thus, the State was required to prove that Person was able to exert control over the cocaine and knew that the cocaine was in his presence. Because Person does not address the knowledge element on appeal, we will limit our discussion to the control element. Person properly frames his argument in terms of whether the motion for judgment of acquittal should have been granted, thus allowing the issue of control to go to the jury. See Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999) (“Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred.”).

One general principle applicable to possession cases is that “[m]ere proximity to contraband is not enough to establish dominion and control.” Id. Instead, “the evidence must establish the defendant’s conscious and substantial possession, as distinguished from mere involuntary or superficial possession, of the contraband.” Id. Furthermore, because any possession on the part of Person would have been nonexclusive, given that twelve people were in the residence, the control element cannot be inferred but must be established by independent proof. See Green v. State, 667 So.2d 208, 211 (Fla. 2d DCA 1995).

Our review of the record compels us to conclude that the State presented no evidence that Person had control over the cocaine. Because there was no evidence that Person was the owner or an occupant of the residence, the court could not infer that he had the ability to control the cocaine simply because it was in plain view in the common areas of the residence. Compare Taylor v. State, 319 So.2d 114, 116 (Fla. 2d DCA 1975) (holding that circumstantial evidence of guilt emanating from the defendant’s proximity to illicit drugs in plain view was equally susceptible to the reasonable hypotheses that the defendant was a mere visitor and that the drugs were in the possession and control of the owner or other occupant of the premises), with Brown v. State, 428 So.2d 250, 252 (Fla.1983) (holding that proof of the discovery of illegal drugs in plain view in the presence of two or more joint occupants of the premises is sufficient to support a conviction for constructive possession).

Indeed, the only evidence concerning Person presented by the State was (1) that the surveilling officer never saw Person enter the house, (2) that Person stepped outside to see off a “visitor,” and (3) that he was in the pileup of nine people attempting to simultaneously flee through the back door when the SWAT team broke in. The first two items of evidence, along with the presence of cocaine throughout the common areas of the residence, lead to a reasonable inference that Person was in proximity to the cocaine. However, we conclude that the totality of the evidence fails to establish “conscious and substantial possession” and thus control. Although “[e]vidence of flight is relevant to infer consciousness of guilt where there is a sufficient nexus between flight and the crime with which a defendant is charged,” Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005), here there is no necessary connection between Person’s attempt to run out the back door and any control he may have had over the cocaine. Person’s and the others’ flight can be explained by the distraction devices used by the SWAT team when it entered the residence, which created a scene of chaos according to one of the testifying officers. At worst, Person’s flight can be taken as evidence that he was aware of the illegal activity taking place in the residence, but it does not necessarily imply that, among the twelve people in the house, he was able to exert control over the cocaine.

Because the State adduced no evidence that Person controlled the cocaine found in the residence and therefore failed to satisfy its burden of establishing a prima facie case of constructive possession, the motion for judgment of acquittal should have been granted as to Person. We therefore reverse Person’s judgment and sentence and remand with instructions that he be discharged.

Reversed and remanded with instructions.

STRINGER and DAVIS, JJ., Concur.

      . In the published instructions, the numbered list has a third element — "(3) knowledge of the illicit nature of the thing” — based on Chi-cone v. State, 684 So.2d 736 (Fla. 1996). See also Brown v. State, 428 So.2d 250, 252 (Fla. 1983) (listing three elements of constructive possession). At the charge conference, however, the trial court and parties discussed several variations on the jury instruction, and the court, over the defendants’ objection, decided to omit the third element, based on section 893.101. In section 893.101(2), the legislature found that “knowledge of the illicit nature of a controlled substance is not an element of any offense under [chapter 893, Florida Statutes].” On appeal, Person does not contest the omission of the third element from the instructions read to the jury.


text:
    Allan W. BRIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3388.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.
    Bruce G. Howie, Bruce G. Howie, P.A., Clearwater, for Appellant.
   KELLY, Judge.

Allan W. Brigham filed this appeal after the postconviction, court dismissed as untimely his amended motion filed pursuant to Florida Rule of Criminal Procedure 3.850 to vacate the judgments and sentences entered in circuit court cases CRC01-01161CFANO-M and CRC02-09197CFANO-M. The motion was not untimely with respect to case CRC01-OH61CFANO-M; accordingly, we reverse the dismissal in that case. However, we affirm the dismissal with respect to case CRC02-09197CFANO-M because the judgment and sentence in that case are not final; consequently, Brigham’s motion is premature.

Case CRC01-01161CFANO-M

The judgment and sentence Brigham sought to vacate in this case became final on November 4, 2002. See Mingo v. State, 790 So.2d 1164 (Fla. 2d DCA 2001) (stating that a judgment and sentence becomes final for purposes of the two-year period for filing a motion for postconviction relief when the thirty-day period for filing an appeal expires). Brigham, through counsel, timely moved to vacate the judgment and sentence pursuant to rule 3.850 raising seven claims for relief. On February 1, 2005, the postconviction court summarily denied one claim and summarily dismissed the remaining claims as facially insufficient. The order stated that Brigham could amend the facially insufficient claims. The order did not specify a deadline within which to file the amended motion.

Approximately a year later, Brigham, through counsel, filed his amended motion. The postconviction court dismissed Brigham’s amended motion as untimely because it was filed more than two years after his judgment and sentence became final. However, because the postconviction court’s February 1, 2005, order gave leave to amend and did not place a deadline on when Brigham could refile his motion, the court erred in dismissing the amended rule 3.850 motion as untimely. See Jumper v. State, 903 So.2d 264, 265-66 (Fla. 2d DCA 2005) (holding that rule 3.850 motion was not time barred where the order did not place any time limitation on when the defendant would refile his rule 3.850 motion); see also Mendes v. State, 770 So.2d 202 (Fla. 4th DCA 2000) (reversing the dismissal of an amended rule 3.850 motion as untimely because the order giving the defendant leave to file an amended motion placed no time limitation on when the amended motion could be filed). Accordingly, we reverse the June 21, 2006, order dismissing the amended rule 3.850 motion in case CRC01-01161CFANO-M.

Case CRC02-09197CFANO-M

In October 2002, after the court sentenced Brigham in this case, Brigham, through counsel, filed a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l). The trial court never ruled on that motion. Then, in October 2004, Brigham, through counsel, moved pursuant to rule 3.850 to vacate his judgment and sentence. The postconviction court dismissed portions of the motion with leave to amend just as it had done with Brigham’s motion in case CRC01-01161CFANO-M, and when Brigham filed his amended motion, it met the same fate as the amended motion he filed in case CRC01-01161CFANO-M. In this case, however, we conclude that the dismissal was proper, although not for the reason given by the court.

Although the court dismissed the amended motion as untimely because it concluded Brigham waited too long to file the motion, we conclude that Brigham filed the motion too soon rather than too late. In pertinent part, rule 3.850(b) states that “[a] motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a non-capital case.... ” Implicit in the rule is the requirement that the judgment and sentence be final before the motion is filed. Brigham’s judgment and sentence have yet to become final, however, because “[a] timely motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170 delays rendition of the final order imposing judgment and sentence until the trial court files a signed, written order disposing of the motion.” Smallwood v. State, 911 So.2d 849, 850 (Fla. 1st DCA 2005); see also Fla. R.App. P. 9.020(h). Because Brigham’s motion was premature, we affirm the court’s dismissal with respect to case CRC02-09197CFANO-M. On remand, the court shall rule on Brigham’s November 4, 2002, motion to withdraw plea. In the future, should Brigham file another rule 3.850 motion directed to the October 2002, judgment and sentence in case CRC02-9197CFANO-M, that motion shall not be deemed successive.

Reversed in part, affirmed in part.

ALTENBERND and LaROSE, JJ., Concur.

      . This applies to the dismissed claims as well as to any claims that were disposed of on the merits by the postconviction court's February 1, 2005, order.


text:
    Richard M. CHOUQUER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2805.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.
    Brooke V. Elvingtron of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
   SILBERMAN, Judge.

Richard M. Chouquer appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of his claim relating to photographs. We reverse the denial of his claim that counsel was ineffective for failing to investigate and file a motion to suppress, and we remand for further proceedings.

In his sworn motion, Chouquer claimed that trial counsel was ineffective for failing to properly investigate and file a motion to suppress his statements to law enforcement. He claimed that his statements were obtained in violation of Miranda. He stated that on July 10, 2002, an FBI special agent and a police lieutenant, who were investigating a missing child case, questioned him for four hours at a police station. He described the circumstances leading to his being at the police station and being interrogated. He asserted that he was in custody but was not advised of his Miranda rights at any time prior to or during the interrogation. He stated that although he was initially told he could leave the room where the interrogation was taking place, when he asked to leave he was not permitted to do so. He also alleged that during the interrogation, he requested counsel and his request was ignored or denied.

Chouquer claimed that after four hours of questioning and being brought to tears, he made an incriminating statement to law enforcement. He added that on the following day, July 11, 2002, he made post-Miranda statements that were also subject to suppression because the statements were made incident to an unlawful arrest. Chouquer contended that under the totality of the circumstances he reasonably perceived that he was in custody, and therefore, his statements to law enforcement were not voluntarily made. He asserted that he discussed these facts with counsel but counsel failed to investigate and file a motion to suppress. He claimed that he entered a guilty plea because counsel did not properly advise him regarding the viability of a motion to suppress.

In its response, the State cited to portions of the deposition transcripts of the FBI agent and the police lieutenant. The State argued that based on the totality of the circumstances, when Chouquer was interrogated and gave his statement on July 10, 2002, he was not in custody and was not entitled to the Miranda warnings. The State asserted that a motion to suppress Chouquer’s pre-Miranda statements of July 10 or his post-Miranda statements of July 11 would have failed. The postconviction court summarily denied Chouquer’s motion in all respects, stating that it agreed with and adopted the State’s response.

After reviewing Chouquer’s motion, the State’s response, and the limited record that is before us, we conclude that Chou-quer has stated a legally sufficient claim and that a factual dispute exists as to whether he was in custody for purposes of Miranda, whether his rights were violated, and whether counsel was ineffective for failing to investigate and file a motion to suppress. See Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002); Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987). Accordingly, we reverse. On remand, the postconviction court shall conduct an evidentiary hearing, unless the court is able to attach portions of the record that conclusively refute Chouquer’s claim.

Affirmed in part, reversed in part, and remanded.

SALCINES and VILLANTI, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Chouquer also argued that the July 11 statements were subject to suppression because law enforcement told him that it would be better for him if he admitted his guilt. We conclude that the trial court did not err in summarily denying this portion of Chouquer’s claim.


author: KELLY, Judge. SILBERMAN, Judge,

text:
    Vicki TRENCHARD, Appellant, v. ESTATE OF William W. GRAY Deceased, and Marcia Gray, Appellee.
    No. 2D06-1840.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.

      Vicki Trenchard, pro se.
    No appearance for Appellee.
   KELLY, Judge.

Dismissed. See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005).

GALLEN, THOMAS M., Associate Senior Judge, Concurs.

SILBERMAN, J., Concurs specially with opinion in which GALLEN, THOMAS M., Associate Senior Judge, Concurs.

SILBERMAN, Judge,

Specially concurring.

Appellant Vicki Trenchard raises an issue regarding whether certain real property to which she claims ownership is subject to Appellee Marcia Gray’s claim to an elective share. Ms. Trenchard and William Gray, the decedent, owned the property as joint tenants with the right of survivorship. The trial court’s order finds that the decedent’s interest in the real property is subject to the elective estate. The order is consistent with the statutory requirement that the value of the decedent’s interest in the property must be taken into account to determine the elective estate. See § 732.2035, Fla. Stat. (2005).

The trial court has not determined any questions as to ownership of the property or whether the property itself may be used to satisfy the elective share claim. The court also has not resolved questions as to the amount of the elective share, the identification of assets that will be used to satisfy the elective share, the amount of the unsatisfied balance of the elective share, or the apportionment of the unsatisfied balance among the direct recipients of the remaining elective estate. See §§ 732.2075, 732.2085. Thus, I concur in the decision to dismiss this appeal because the trial court’s order is nonfinal and non-appealable. See Dempsey, 899 So.2d 1272.

Finally, I note that the trial court, in an earlier order, authorized Ms. Gray to file a lis pendens as to the subject real property. Ms. Trenchard did not seek review of that order and, therefore, we cannot address whether the filing of a lis pendens is appropriate under the circumstances of this case.


author: PER CURIAM. LaROSE, Judge,

text:
    Donald A. SMITH, M.D., Petitioner, v. Martha M. RANKIN and William S. Rankin, her husband, Respondents.
    No. 2D06-3144.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.
    Martin B. Unger and Scott A. Tacktill of The Unger Law Group, P.L., Orlando, for Petitioner.
    Celene Humphries of Swope, Rodante P.A., Tampa, for Respondents.
   PER CURIAM.

Denied. See Ondrey v. Patterson, 884 So.2d 50 (Fla. 2d DCA 2004).

SILBERMAN and VILLANTI, JJ„ Concur.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

I concur in the court’s denial of Dr. Smith’s petition for issuance of a writ of certiorari. Indeed, our decision in Ondrey compels that result.

Dr. Smith is a neurosurgeon employed by the University of South Florida. The parties do not dispute that Dr. Smith is a State employee. After Dr. Smith operated on Mrs. Rankin, the Rankins sued him for medical malpractice. Dr. Smith sought immunity under section 768.28(9)(a), Florida Statutes (1999). The statute shields a State employee from liability for conduct that injures or damages another. The statute provides immunity not only from liability but also from suit. Lemay v. Kondrk, 928 So.2d 1188, 1192 (Fla. 5th DCA 2006). But, the immunity is not absolute; the statute does not shield a State employee who acts “in bad faith, with malicious purpose, or in wanton and willful disregard of human rights, safety, or property.” Ondrey, 884 So.2d at 54.

The Rankins alleged that Dr. Smith’s conduct was so egregious as to deny him the protections of section 768.28(9)(a). Dr. Smith moved for summary judgment, arguing that the evidence established his immunity under the statute. The trial court denied Dr. Smith’s motion. The trial court concluded that genuine issues of material fact remained for trial concerning Dr. Smith’s preparation for and performance of Mrs. Rankin’s surgery. Based on the record before it, the trial court could not conclude, as a matter of law, that Dr. Smith was immune from liability and suit.

In assessing Dr. Smith’s petition, we examine three issues: (1) whether the trial court’s order departs from the essential requirements of law, (2) whether the order causes material injury, and (8) whether the material injury is irreparable on appeal. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). The last two issues relate to our jurisdiction; the first issue addresses the merits of the petition. Id.

A review of the record convinces me that we have jurisdiction to entertain Dr. Smith’s petition. Because section 768.28(9)(a) can immunize a State employee from suit as well as from liability, Dr. Smith has demonstrated the existence of a material and irreparable injury. Ondrey, 884 So.2d at 54. But, Dr. Smith’s petition fails on the merits. The petition poses a close question in my view. Nevertheless, the record reflects disputed genuine issues of material fact as to whether Dr. Smith falls outside the protections of the immunity statute. Under such circumstances, the denial of a motion for summary judgment does not depart from the essential requirements of law. See id. at 54-55.

We should issue a writ of certiorari sparingly. Fassy v. Crowley, 884 So.2d 359, 362 (Fla. 2d DCA 2004). The standards for issuance of the writ are exacting. Consequently, no other result is possible at this stage of the proceedings. However, whether the evidence at trial will be sufficient to demonstrate that Dr. Smith is not entitled to immunity remains to be seen. I do not believe that our denial of the petition forecloses further examination of the immunity issue as the record is more fully developed in the trial context.


text:
    D.J.S., Mother of A.S., R.S., D.S., M.T., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 5D06-2510.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2007.
    Eddie J. Bell, Daytona Beach, for Appellant.
    Anthony C. Musto, Hallandale Beach, for Appellee Department of Children and . Families.
    Wendie Michelle Cooper, Orlando, for Appellee Guardian Ad Litem.
   PER CURIAM.

AFFIRMED. See Courtney v. Dep’t of Health & Rehab. Serv., 667 So.2d 504 (Fla. 5th DCA 1996).

TORPY, LAWSON and EVANDER, JJ., concur.


author: MONACO, J.

text:
    LAKE SUE DEVELOPMENT CO., INC., et al., Appellant, v. KEEWIN REAL PROPERTY COMPANY, Appellee.
    No. 5D05-3808.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.

      Robert N. Reynolds, of Robert N. Reynolds, P.A., Winter Park, for Appellant.
    David H. Simmons and Bart R. Valdes, of de Beaubien, Knight, Simmons, Mant-zaris & Neal, LLP, Orlando, for Appellee.
   MONACO, J.

Appellants, Lake Sue Development Company, Inc. (“Development Company”), and Commercial Realty Group (“Owner”), appeal the summary final judgment entered against them by the trial court and in favor of the appellee, Keewin Real Property Company (“Broker”). Because a number of issues of material fact were still in controversy, we conclude that the trial court erred in entering the summary judgment, and reverse.

On February 28, 2000, Development Company, entered into three contracts with Owner for the purchase of real estate located in Seminole County. Neill O’Brien, III, is the president and sole shareholder of Owner, and the president and majority shareholder of Development Company, the other shareholders being his wife, daughter and son. Development Company had planned either to develop the property itself, or to sell it to third parties.

Three days after execution of the contract for purchase and sale Development Company and Broker entered into an Exclusive Right of Sale Agreement, in accordance with which Broker would for a fixed term of six months, unless extended, act as the sole broker for Development Company in the sale of the subject real property. The Agreement seemed to contemplate that Development Company would close on the three contracts after it obtained certain governmental approvals and financing. As it turns out, however, Development Company never took title to the land. In the mean time, Broker attempted to find a buyer for the property, but was unable to locate any within the six month express term of the Exclusive Right of Sale Agreement.

In October of 2000, about seven months after entering the Exclusive Right of Sale Agreement, Broker introduced the property to Cambridge Homes, Ltd., and Cambridge and Development Company entered into a contract for the purchase and sale of 141 of the 408 residential lots on the subject land. In addition, Broker secured a letter of intent from Ryland Homes to buy another 141 of the homes, but this contract was rejected. In June of 2001, well after the original six-month term of the Exclusive Right of Sale Agreement, however, Owner sold the entire property to Maron-da Homes for $6,218,800, and paid a full commission to another broker. Development Company then assigned the Cambridge contract to Maronda Homes, but Cambridge promptly cancelled its contract. At the time Broker made no claim to a commission for the sale to Maronda, although Mr. O’Brien apparently advised Broker that Owner had sold the land.

In this same general time period the Broker ceased its efforts to market the property. Mr. Folk, a principal of Broker, testified at deposition in this connection:

Q: When did you stop doing anything concerning marketing the property?
A: Probably when Neill, on, did not sign the contract with Ryland, which was I think December, January, and he had discussions with us that he could not — was not probably going to get financing not going to go through with the deal. We probably stopped working.
Q: December 2000, January 2001?
A: 2000. Yeah, 2000. The contract with Ryland was done October, November, December, January, then it was never signed.
A: [Mr. O’Brien] had discussions with us that he could not — was not probably going to get financing, not going to [sic] through with the deal. We probably stopped working.

Broker brought suit against Development Company and eventually against Owner seeking to recover against each for breach of contract for a broker’s commission arising out of the Exclusive Right of Sale Agreement, or alternatively, for quantum meruit. Broker’s theory is basically that Development Company and Owner are “related corporations,” and that each breached the Exclusive Right of Sale Agreement by failing to pay Broker a commission when the property was sold to Maronda Homes.

After several years of pleading modifications and discovery, Broker filed a motion for summary judgment. The trial court eventually rendered a summary final judgment in favor of the Broker and against both of the appellants. The Owner and Development Company principally defended against summary judgment, as they had in their pleadings, by asserting that the Exclusive Right of Sale Agreement had expired and had never been renewed or extended. In addition, they argued that Broker was not entitled to a commission because it had abandoned work on the listing agreement. The trial court, however, concluded that the Agreement “was extended, and Defendants did not present any evidence to the contrary.” Accordingly, it found that the Agreement, lengthened beyond its original six-month term, was in effect at the time that the property was sold to Maronda Homes. Additionally, the trial court agreed that Owner and Development Company are related corporations in accordance with the holding of this court in Dawson v. Hadden, 743 So.2d 1230 (Fla. 5th DCA 1999), review denied, 766 So.2d 220 (Fla.2000).

A ruling on a motion for summary judgment is subject to a de novo standard of review. See, e.g., Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). Given the evidence before the trial court at the time, and the evidence that we review de novo, we conclude that summary judgment was inappropriate because of a conflict in the material facts.

The Exclusive Right of Sale Agreement between the Broker and the Development Company gave the Broker the exclusive right to sell the property, and provides that “[a]ny sale by Developer during the term hereof, shall be deemed a sale wherein BROKER were (sic.) the procuring cause.” The original term of the Agreement was for six months, but it allowed for an extension of the term, as follows: “Upon mutual agreement, this Agreement may also be extended beyond the Initial Term for whatever time period agreed upon between the DEVELOPER and BROKER.” Unquestionably, the sale from Owner to Maronda Homes took place more than fifteen months after the effective date of the Exclusive Right of Sale Agreement. The question, then, is whether there was any issue of material fact with respect to an extension of the term of the Agreement.

The evidence adduced reflects that there was no explicit written extension of the term of the Agreement. Broker contends, however, that the parties orally agreed to extend the contract for however long it took to sell the property. Jay Folk, the president of the Broker, testified at deposition concerning his assertion of a verbal extension, as follows:

Folk: Well, we continued to work on the property, and Neill says continue working on the property. It says, upon mutual agreement, this agreement may also be extended beyond initial term for whatever time period agreed upon by the developer and broker. The mutual agreement was we were continuing to work on it.
Q: What time period was agreed upon between the developer and broker for the extension?
Folk: To continue working on the property until it’s sold.
Well, we had an exclusive right of sale which I agreed with two people involved in this, Keewin and Lake Sue Development. Lake Sue Development said continue working with the property. We continued to work with the property. I mean, earlier, you asked me when the six month was up and then you asked me to go through my notes, Although it was up in August [2000], we went through September and October. You said stop there. We continued to work on the property. That’s evidence at the time Neill would have said exclusive is up, don’t do any more work but we continued to work. Neill didn’t say don’t stop or I’m not going to go on in this or I’m not going to do that. We continued to work on the property. It was mutually extended.

According to Mr. Folk, an August 17, 2001, letter from Mr. O’Brien to the principals of the Broker, referring to Broker as “my broker” was consistent with verbal discussions to extend the Exclusive Right of Sale Agreement indefinitely. The letter in its entirety reads as follows:

Dear Allan and Jay:
Today I received a copy of the enclosed Termination of Contract for Sale and Purchase between Cambridge Homes, Ltd. and Maronda Homes, Inc.
The intent of this letter is to notify you as my Broker that I have received this document. According to our Exclusive Right of Sale Agreement, Paragraph 4 may give you specific rights regarding the earnest money deposit which Cambridge is asking to be returned to them. Please let this letter serve as my notice to you of their actions.

(Emphasis supplied).

Mr. O’Brien submitted an affidavit in response to the motion for summary judgment stating that the Development Company did not extend the Agreement. In his affidavit he asserted that the Agreement expired before he began discussions with Maronda, and that the August 2001 letter referred to Broker as his broker with respect to the Cambridge transaction. He noted that he had simply addressed the possibility that Broker was entitled to some of the money deposited on the contract by Cambridge. Mr. O’Brien also stated that a course of conduct had been established between Keewin and Development Company for an extension of an agreement that would be memorialized in writing, as evidenced by certain letters attached to Mr. O’Brien’s affidavit. In those letters, Broker made a formal written request for an extension of the period of time which it had to inspect the property, after the principals had verbally discussed the matter. Mr. O’Brien responded with a written grant of the Broker’s request. Mr. O’Brien admitted in his deposition, however, that he did not have any documentation to dispute Mr. Folk’s claim that the listing agreement had been extended by oral agreement. Thus, the allegation from the Broker’s perspective was that the contract had been orally extended, while the evidence from the Development Company and Owner was that it had not.

Although it never moved to strike the affidavit, Broker claims that the affidavit should be disregarded because the key points of it are contradicted by the earlier deposition testimony of Mr. O’Brien. See, e.g., Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977). A comparison of the deposition and affidavit, however, reflects that they are not at odds with each other. Accordingly, the language of the affidavit must be given effect.

Summary judgment is only appropriate if there is no genuine issue of material fact, and if the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). In St. Joe Corp. v. McIver, 875 So.2d 375 (Fla.2004), the Florida Supreme Court held that “generally, where the parties acknowledge creation of a contract and the disagreement concerns their varying understandings about certain terms, such questions are properly submitted to a jury.” The St. Joe court recognized that while parties could discharge or modify portions of a written contract between them, whether such a modification is valid is generally a question of fact. Id. at 382. In addition, while subsequent conduct can likewise modify the terms of a contract, whether such conduct does in fact result in a modification is also a question of fact. Id. at 382-383. See also Rotemi Realty, Inc. v. Act Realty Co., Inc., 911 So.2d 1181 (Fla.2005).

It hardly bears repeating that “[a]ll doubts regarding the existence of an issue in a motion for summary judgment are resolved against the moving party, and all evidence before the court plus favorable inferences reasonably justified thereby are to be liberally construed in favor of the opponent.” See Aagaard-Juergensen, Inc. v. Lettelier, 540 So.2d 224, 225 (Fla. 5th DCA 1989). Here, the question is whether the explicit term of the Exclusive Right of Sale Agreement has been modified and extended either orally or by the subsequent conduct of the parties. The issue is laden with contradictory evidence that can in this case only be resolved by a trier of fact. We conclude, therefore, that summary judgment was inappropriate.

We conclude, as well, that the issue of whether Broker abandoned the Exclusive Right of Sale Agreement was not one that could be resolved by summary judgment because the facts surrounding it were not crystallized at the time the judgment was rendered. Thus, the trial court likewise erred in this regard.

We, therefore, reverse and remand this case to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.

      . A counterclaim by the Development Company was also decided by summary judgment in favor of the Broker, but this appeal does not address that matter.

      . We recognize that there were a number of fits and starts associated with the summary judgment that was finally rendered. We are omitting this unnecessary detail for the sake of clarity.

      . We note that a nonmoving party is not required to make any showing in support of its position until the moving party has, by affidavit or otherwise, completely negated all allegations and inferences raised by the nonmov-ing party. See Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966); Berenson v. Southern Baptist Hosp. of Fla., Inc., 646 So.2d 809, 810 (Fla. 1st DCA 1994); Pennco, Inc. v. American Gen. Home Equity, Inc., 629 So.2d 307 (Fla. 2d DCA 1993). The nonmoving party is not bound to come forward with any evidence or inferences until the proponent of the motion has met its high burden. This proponent’s burden is to show that the nonmoving party cannot prevail. See Berenson; Gomes v. Stevens, 548 So.2d 1163 (Fla. 2d DCA 1989).

      . Because it appears that this case will be headed for trial we observe for the benefit of the trial judge and parties that we find no merit in the contention of the Development Company and Owner that Broker breached its fiduciary duty by making an offer on the property.


text:
    David Alan SHUEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1915.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

We have reviewed the points raised by the defendant and find no reversible error. However, for the sake of accuracy, we point out the following matter, sua sponte. The judgment of conviction erroneously states that the defendant pled nolo contendere to the charges when he was actually convicted following a jury trial. We affirm the convictions and sentences but remand to the trial court for correction of this scrivener’s error. See, e.g., Cook v. State, 947 So.2d 1207 (Fla. 1st DCA 2007). The defendant’s presence at such correction is unnecessary.

AFFIRMED; REMANDED.

SAWAYA and EVANDER, JJ., concur.


text:
    Durrand McCOLLUM, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1783.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

On February 1, 2006, McCollum entered a no contest plea to the charge of robbery by snatching. He was adjudicated guilty and sentenced to one year probation after having been given credit for sixty-five days already served.

On March 2, 2006, a violation of probation warrant was issued, alleging McCol-lum had violated his probation by failing to report to his probation officer as of February 27, 2006. At the violation of probation hearing, McCollum testified that he was never advised by the trial court or any probation officer of the date by which he was required to report to probation. McCollum’s testimony was unrefuted. The State produced no evidence that the sentencing judge or a probation officer had advised McCollum of a date by which he was required to report to probation. Although the order of probation had a provision requiring a probationer to report to probation immediately, there was no evidence that McCollum was ever provided a copy of the order. Nonetheless, the trial court found McCollum had violated his probation, revoked his probation, and sentenced him to 48 months in prison.

We conclude the evidence was insufficient to support a finding that McCollum had willfully violated his probation by failing to timely report to his probation officer. Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988).

In Hightower, the defendant was found guilty by the trial court of violating his probation by failing to timely report to his probation officer. The evidence established that the defendant had been released from incarceration on December 4, 1985, and had not reported to probation as of August 1, 1986. In Hightower, there was a similar lack of evidence that the defendant had been advised of a date by which he was required to report to probation and a similar lack of evidence that the defendant had ever received his order of probation. The Second District Court of Appeal reversed the trial court’s decision, finding that the evidence was insufficient to support a finding of willfulness.

Like our sister court, we find the lack of any evidence that McCollum was advised of a date by which he was required to report to probation prevents a finding that he willfully violated his probation.

REVERSED.

TORPY and LAWSON, JJ., concur.

      . § 812.131(2)(b), Fla. Stat. (2005).

      . There was a place on the order for McCol-lum to sign acknowledging receipt of a copy of the order. However, this signature place was blank. Additionally, there is no notation indicating a refusal to sign the order.


author: GRIFFIN, J.

text:
    Ramon ALVEREZ, et al., Petitioners, v. STATE of Florida, Respondent.
    No. 5D01-3560.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Petitioners.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

We have this consolidated case after quashal and remand from the Florida Supreme Court for us to reconsider in light of the high court’s decision in Kephart v. Hadi, 932 So.2d 1086 (Fla.2006). The parties have filed, at our request, supplemental memoranda addressing the effect of the decision on the twelve petitions included in the remanded consolidated case.

Appellate Public Defender, John Selden, has provided us with a well-written, thorough and thoughtful response. In it, he informs the court that due to the passage of time, several petitions have become moot. Moreover, under the high court’s decision in Kephart, the remedial steps that were taken by the State in all of these cases, including the filing of motions to amend the petitions, amended petitions containing a verification by the State Attorney, and verification of the attached doctors’ reports, meet the supreme court’s requirements. Accordingly, we deny the petitions.

Petitioners do request that this court clarify the requirements for an oath or affirmation to be used by psychologists, DCF personnel, or the like, but that is an issue that need not be decided at this time. If it remains a question, it will be a question for another day.

PETITIONS DENIED.

THOMPSON and PALMER, JJ., concur.

      . State v. Alverez, 940 So.2d 1111 (Fla.2006).


author: PALMER, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Johnnie Lee RIFE, et al., Appellee.
    No. 5D06-2957.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Yvette A. MacMillan Assistant Attorney General, Tampa, for Appellant.
    No Appearance for Appellee.
   PALMER, J.

The Department of Highway Safety and Motor Vehicles (the Department) appeals the trial court’s order dismissing with prejudice its forfeiture action regarding Johnnie Lee Rife’s motor vehicle. Determining that the trial court incorrectly applied the Florida Contraband Forfeiture Act, we reverse.

Rife was arrested for driving under the influence (DUI) in violation of section 316.193 of the Florida Statutes. Because Rife had twice previously, within ten years, been convicted of DUI, his third violation was deemed a felony pursuant to section 316.193(2)(b)l. of the Florida Statutes.

The Department initiated forfeiture proceedings to seize Rife’s motor vehicle under the Florida Contraband Forfeiture Act, alleging that Rife had used his motor vehicle in the commission of a felony. After conducting a hearing, the trial court dismissed the petition, concluding that no forfeiture could occur for the offense of DUI unless the offender’s license was suspended, revoked, or cancelled as a result of a prior DUI conviction. The trial court ruled that, pursuant to the rules of statutory construction, the specific forfeiture provision for DUI offenses set forth in section 932.701(2)(a)9. controls over the general forfeiture provision contained in section 932.701(2)(a)5. The court erred in so ruling.

The Florida Contraband Forfeiture Act provides that contraband articles shall be seized and forfeited as follows:

932.703 Forfeiture of contraband article; exceptions. — (l)(a) Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real estate used in violation of any provision of the Florida Contraband Forfeiture Act, ... may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.

§ 932.703(l)(a), Fla. Stat. (2005). Section 932.701(2)(a) of the Florida Statutes defines the term “contraband article” as follows:

932.701. Short title; definitions

(2) As used in the Florida Contraband Forfeiture Act:

(a) “Contraband article” means:
* * *
5. Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
9. Any motor vehicle used during . the course of committing an offense in violation of s. 322.34(9)(a).[]

§ 932.701(2)(a), Fla. Stat. (2005)(emphasis added).

Rife’s commission of a felony DUI fits within the definition of using a contraband article in the commission of a felony. Accordingly, pursuant to section 932.701(2)(a)5., Rife’s motor vehicle is subject to forfeiture. See Daniels v. Florida Dep’t. of Health, 898 So.2d 61 (Fla.2005)(holding when the statutory language is clear, courts have no occasion to resort to rules of construction; they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power).

While section 932.701(2)(a)9. of the Florida Statutes defines a “contraband article” to include a motor vehicle used while driving under the influence of alcohol or drugs if the person’s driver’s license is suspended, revoked or cancelled as a result of a prior conviction, even if such violation is not a felony, that section does not supersede section 932.701(2)(a)5. of the Florida Statutes which defines “contraband article” to include any vehicle used in the commission of a felony. Here, section 932.701(2)(a)9. does not apply because both parties admit that Rife was not driving while his license was suspended, revoked, cancelled or disqualified. Both parties also agree that a third DUI charge that occurs within ten years after a prior conviction is a third degree felony. If either section is applicable, forfeiture is allowed. Under the alleged facts of this case, section 932.701(2)(a)5. of the Florida Statutes was applicable and, accordingly, the dismissal of the forfeiture action was error.

REVERSED and REMANDED.

MONACO and TORPY, JJ., concur.

      . Section 316.193(2)(b)l. of the Florida Statutes provides as follows:
      316.193. Driving under the influence; penalties.—

      (2)[b] 1. Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, the court shall order the mandatory placement for a period of not less than 2 years, at the convicted person’s sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July, 2003.
      § 316.193(2)(b)l., Fla. Stat. (2005)(emphasis added).

      . Section. 322.34(9)(a) of the Florida Statutes provides:
      322.34. Driving while license suspended, revoked, canceled, or disqualified

      (9)(a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.707 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person’s driver’s license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence.
      § 322.34(9)(a), Fla. Stat. (2005).


author: PER CURIAM. GRIFFIN, J.,

text:
    T.W.L., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-577.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    Robert Wesley, Public Defender, and Mark Houldin, Assistant Public Defender, Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The Petition for Writ of Habeas Corpus is denied.

DENIED.

ORFINGER and LAWSON, JJ., concur.

GRIFFIN, J., concurs specially.

GRIFFIN, J.,

concurring specially.

I concur in the decision of the majority to deny the petition for writ of habeas corpus, primarily because it does not appear that this pretrial “behavior order” was objected to at the time of its entry and because habeas corpus does not appear to be an appropriate means to obtain review of the order.

I am bound to say, however, that the Public Defender makes a persuasive case that there is no lawful authority for such an order. Indeed, the State offers none except the “inherent authority” of the court. I am not sure where the court gets the inherent authority to order a child, who is under the jurisdiction of the court because of an as yet unproven charge of criminal conduct, to: remain at home unless he is at school or in the company of his father, attend all classes, have no unexcused absence, no tardiness, no disciplinary referral, complete all required work, obey all school rules, all parental rules, not possess alcohol or illegal drugs, not possess any weapon, or associate with those who do. If the court can do this inherently, I am not sure what function the delinquency statutes serve. Such an order cannot be justified as a “condition of release” because the perceived problem with chapter 985 giving rise to entry of the “behavior order” in the first place is that the child can no longer be held in any form of detention prior to his adjudicatory hearing on March 19, 2007.

To the extent this “behavior order” is a device to access the detention available for contempt of court based on the juvenile’s violation of the court order, the State concedes that the juvenile could “appeal a finding that he was in contempt and thereby challenge the [behavior] order.”