text:
    John BAILEY, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, James V. Crosby, Sec., FDOC, Willie Floyd, Warden G.C.I., Jean Dauphin, Medical Director, G.C.I., Wexford Health Services, Inc., and Florida Department of Health, Appellees.
    No. 4D06-3519.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      John Bailey, Raiford, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauder-dale, for Appellees-Department of Corrections, Department of Health, James V. Crosby and Willie Floyd, and Mitchel Chu-sid and Scott M. Teich of Ritter Chusid Bivona & Cohen, LLP, Boca Raton, for Appellees-Wexford Health Sources, Inc. and Jean Dauphin.
   PER CURIAM.

John Bailey, an inmate at Glades Correctional Institute, appeals the trial court’s dismissal of his single-count complaint, which alleged medical malpractice and deliberate indifference to his medical needs under 42 U.S.C. § 1983. The trial court’s dismissal order suggests that Bailey’s complaint was deficient in its allegations regarding compliance with the pre-suit notice requirements of section 768.28(6)(a), Florida Statutes (2006), and exhaustion of the prison’s grievance procedures.

Bailey specifically alleged that he served his claim on the head of the Florida Department of Corrections, the Florida Department of Insurance and Wexford Health Services, Inc. on April 29, 2003; he attached a copy of the notice to his complaint. Having examined the notice, we conclude that it fully satisfies the requirements of section 768.28. Moreover, the subject complaint alleged that plaintiff had “complied with all statutory conditions precedent to bringing this action.” Under Florida Rule of Civil Procedure 1.120(c), it is sufficient to generally aver the performance or occurrence of the conditions precedent to suit. This rule applies to the presuit notice conditions of section 768.28. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla.1979).

The plaintiff also alleged that he had “exhausted all administrative remedies.” We consider this was an adequate pleading of his satisfaction of the exhaustion requirement. Recently, in Jones v. Bock, — U.S. -, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007), the United States Supreme Court held that the failure to exhaust administrative remedies in a prisoner’s suit under section 1983 is an affirmative defense to be pled by the defendant, and that the plaintiff has no obligation to plead exhaustion, even in general terms, in such cases. But see San Marco Contracting Co. v. State, Dep’t of Transp., 386 So.2d 615, 617 (Fla. 1st DCA 1980) (stating that exhaustion of administrative remedies should be alleged in complaint).

Accordingly, we reverse the order of dismissal and remand for further proceedings.

Reversed and Remanded.

STEVENSON, C.J., POLEN and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C. Richard HARROW and Emily Harrow, individually and as Personal Representatives of the Estate of Michael Harrow, deceased, and as assignees of Amy Stuono, Appellants, v. GEICO INDEMNITY INSURANCE COMPANY, Appellee.
    No. 4D05-4823.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied July 19, 2007.
    Richard C. Bagdasarian of Richard C. Bagdasarian, P.A., Boca Raton, for appellants.
    Caryn L. Bellus and Sharon C. Degnan of Kubici Draper, Miami, for appellee.
   PER CURIAM.

Affirmed. See Wellman v. GEICO, 931 So.2d 1046 (Fla. 4th DCA 2006).

SHAHOOD, GROSS and MAY, JJ., concur.


author: EVANDER, J.

text:
    John Scott BONAVITO, Appellant, v. Kelly Ann BONAVITO, Appellee.
    No. 5D06-3483.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.

      Philip Fougerousse of Philip Fouger-ousse, P.A., Melbourne, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

The former husband appeals from a final judgment on his supplemental petition to modify and an order awarding the former wife attorney’s fees. We reverse.

The parties were married in 1986. They have two children — Ashley, born in March, 1987, and Anthony, born in November, 1994.

In September, 2000, the former wife filed a petition for dissolution of marriage. The parties subsequently entered into a marital settlement agreement. The marital settlement agreement provided, inter alia, that the former wife would have primary residential custody of the two minor children. The former husband was ordered to pay child support at the rate of $600/week. A child support guideline worksheet was attached to the marital settlement agreement. The worksheet reflected that the former husband had a net income of $14,623/month and the former wife had no income. The child support was to continue:

[U]ntil such time as ASHLEY and ANTHONY have reached the age of 18 years or, if ASHLEY and ANTHONY shall have attained the age of 18 and are still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19, or within the calendar year in which she or he shall reach the age of 19, then, in that event, until ASHLEY and ANTHONY have graduated from high school....

The parties further equitably distributed their assets. Among other things, the former wife received the marital home and the former husband received the stock in the business in which he was employed. The marital settlement agreement did not reflect the value of these assets. Additionally, the former wife waived her claim for permanent periodic alimony. The marital settlement agreement was ultimately incorporated into the parties’ final judgment of dissolution of marriage entered on February 16, 2001.

On September 15, 2005, the former husband filed a supplemental petition to modify the final judgment. He alleged he had been seriously injured in a motor vehicle accident on August 1, 2004. As a result of his injuries, the former husband alleged his employment was terminated effective April 1, 2005. Based on this alleged substantial change of circumstances, the former husband requested a reduction of his child support obligation.

A final hearing on the former husband’s supplemental petition took place in August 2006. By this time, the parties’ oldest child had not only reached the age of majority, but had also graduated from high school. At the final hearing, the former wife objected to the court considering any change of circumstances related to the age of the oldest child because the issue had not been raised in the former husband’s pleadings. The court appeared to sustain this objection, stating: “I’m not going to deal with it. It’s not before me.”

At the final hearing, the evidence was undisputed that the former husband had been involved in a serious motor vehicle accident. As a result of the accident, he was in a coma and intensive care for several weeks. His employer testified that after the accident the former husband had difficulty walking and writing. It was undisputed that the former husband’s employment was terminated because of concern that the former husband would be unable to adequately perform his job functions.

On March 31, 2005, the former husband entered into an agreement with his employer to sell his stock in the business for approximately one million dollars. The principal was to be paid in five annual installments. The first installment was paid on March 31, 2005, and the remaining installments were due April 1st of the next four years. Each installment was to include approximately $200,000 toward the reduction of the principal. Interest would accrue at the prime rate. However, there would be no prepayment penalty. By the date of trial, the former husband’s employer had paid the former husband almost $600,000 on the principal owed under the buy-out agreement. The former husband further testified that he was working at his girlfriend’s gourmet market for $500/week.

The former wife presented testimony that the former husband had made recent expenditures for a new boat, a new jet ski, and a new swimming pool. The former husband had also spent $10,000 to purchase a car for Ashley. The former wife testified she worked part-time as a hair stylist.

On September 5, 2006, the trial court entered a final judgment on the supplemental petition. The court’s findings of fact are inconsistent with its legal conclusions in several respects. The trial court’s factual findings would appear to support a finding that the former husband had suffered a significant reduction in his income. Specifically, the trial court found the former husband had been involved in a severe motor vehicle accident resulting in the loss of some mobility of his right hand and leg. The court further found that the former husband’s prior employer had bought the former husband’s stock in the company for approximately one million dollars. The court further observed that the former husband had testified that he was working at his girlfriend’s gourmet market for $500/week and that the former husband’s financial affidavit listed assets of approximately 1.2 million dollars.

In its factual findings, the trial court found that the former husband had failed to plead for a reduction in child support based on the oldest child turning eighteen and graduating from high school. The trial court further found the parties’ final judgment did not separate child support for each child.

Although the factual findings would appear to support a finding of a substantial change of circumstances based on the former husband’s reduced income, the trial court stated it was denying the supplemental petition because the former husband had sufficient income and assets to pay child support for the remaining minor child.

Section 61.30(l)(a), Florida Statutes (2005), provides that the child support guidelines’ amount presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding or in a proceeding for modification of an existing order. See also Seiberlick v. Wolf, 859 So.2d 570, 571 (Fla. 5th DCA 2003). In the present case, the final judgment does not reflect any effort by the trial court to determine the former husband’s net income, or the former wife’s net income. Thus, we are unable to determine the presumptive child support guideline amount.

We recognize that a court may order child support to be paid from non-recurring income or assets if the recurring income is not sufficient to meet the needs of a child. § 61.30(13), Fla. Stat. (2005). However, before a court may do so, it must make an express finding that the child’s needs would not be met by a child support amount based solely on a party’s recurring income. Clayton v. Lloyd, 707 So.2d 407, 408 (Fla. 4th DCA 1998). Here, the trial court failed to make this finding.

We further observe that after purportedly denying the former husband’s supplemental petition, the trial court inexplicably reduced the former husband’s child support from $600/week to $300/week because the older child was emancipated. This reduction was inconsistent with the trial court’s verbal statements and written findings that the issue had not been pled and would not be considered by the court. On remand, the trial court may consider the emancipation of Ashley to be a substantial change in circumstances—provided the issue is properly pled by the former husband.

Based on these inconsistencies and omissions in the final judgment, we are obligated to reverse and remand for a new hearing. We also find it necessary to reverse the trial court’s award of $6,674 as attorney’s fees for the former wife. It appears that a portion of those attorney’s fees was attributable to a contempt motion brought by the former wife. At the time the notice of appeal was filed, the trial court had not rendered a dispositive ruling on the motion. Because of the existence of a “prevailing party” provision in the parties’ marital settlement agreement, the trial court’s award of attorney’s fees for time expended on the contempt motion was, at best, premature. We find no abuse of discretion in the trial court’s determination that the former wife was entitled to be paid her reasonable attorney’s fees related to her defense of the former husband’s modification action. The record reflects that the former husband clearly has a superior financial ability to pay fees. Chandler v. Chandler, 624 So.2d 855 (Fla. 4th DCA 1993).

REVERSED and REMANDED.

PLEUS, C.J. and ORFINGER, J., concur.

        .See, e.g., Freeman v. Freeman, 615 So.2d 225 (Fla. 5th DCA 1993) (holding that a reduction of income from $85,212/year to $44, 755/year constituted a substantial change of circumstances, entitling the former husband to a reduction of his child support obligation); see also Thompson v. Thompson, 402 So.2d 1220, 1221 (Fla. 5th DCA 1981) (stating that a parent's income is the most dominant and directly related factor to be considered in determining the amount of the financial duty to support a child in the custody of another).

      . In remanding this case for a new trial, we are not suggesting the trial court must accept the former husband’s testimony that his current income is only $500/week.

      . If $600/week was the proper child support guideline amount for two children, $386/ week, not $300/week, would be the appropriate guideline amount for one child.


text:
    Robert WILLIAMS, Appellant, v. Mae Francis WILLIAMS, Appellee.
    No. 5D06-3984.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.

      Carlton Pierce of Carlton Pierce, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

The former husband appeals from an order titled “Order on Motion for Contempt.” Although the order is so titled, both parties apparently agree that the order is not an order of contempt. The former husband contends the order is, in reality, an improper amendment to a final judgment of dissolution of marriage. The former wife has taken the position that the order was actually an order granting her motion to divide proceeds from sale of residence. Regardless of how the order is characterized, it was improper.

The parties were married on October 30, 1982, and separated in July, 2002. A final hearing on the former wife’s petition for dissolution of marriage took place on April 2, 2004. For some reason, the final judgment of dissolution of marriage was not entered until August 16, 2005. To correct a scrivener’s error, an amended final judgment was entered on September 21, 2005.

The amended final judgment of dissolution of marriage provided, inter alia, that the former husband was to pay the former wife $300 per month for permanent periodic alimony commencing June 1, 2004. The parties’ assets were equitably distributed with the former husband receiving certain real property located on North Hudson Street, Orlando, Florida (Hudson Street property). The amended final judgment contains a finding that the Hudson Street property had a value of $69,594. The equity in the property was $13,000. The former husband was ordered to pay the former wife her one-half share of the equity ($6,500 within “thirty (30) days from the date of signing of this order.”) The former husband was also ordered to pay the former wife $1,100 for her one-half interest in a Bank of America account. This sum was to be paid by March 22, 2005.

There was no appeal from the amended final judgment.

On October 13, 2005, the former wife filed a motion for contempt, alleging the former husband had violated the amended final judgment by failing to pay:

1) Alimony;
2) The $1,100 for the former wife’s one-half interest in the Bank of America account; and
3) The $6,500 for the former wife’s one-half interest in the equity of the Hudson Street property.

A hearing on the motion for contempt was held on February 6, 2006. The former husband did not appear at the hearing. By order dated June 9, 2006, the former husband was found in contempt for his failure to pay alimony. Unfortunately, the trial court also incorrectly found the former husband to be in contempt for failing to pay the $1,100 and the $6,500. The law is well-settled that property division awards may not be enforced by contempt. Hertrich v. Hertrich, 643 So.2d 115 (Fla. 5th DCA 1994). The only remedies are those available to creditors against debtors. Veiga v. State, 561 So.2d 1335 (Fla. 5th DCA 1990).

The former husband was ordered to pay $13,300 (a sum representing the total of the former husband’s alimony arrearages and equitable distribution obligations) within 30 days. As a sanction, the former husband was also ordered to pay $1,200 of attorney’s fees to the former wife’s counsel.

On July 12, 2006, the former wife filed an amended motion for contempt, alleging the former husband had failed to comply with the court’s order of June 9, 2006. On August 24, 2006, the former wife filed a motion to divide proceeds from sale of residence, alleging, inter alia,

4. That the [Former Wife] had the [Hudson Street property] valued and the real property is approximately $160,000. That the final judgment stated ‘That the wife was to receive $6,500 for her half-interest in the marital residence.’
5. That the Former Husband failed to provide the $6,500 at that time to the [Former Wife].
6. That the former Wife’s half-interest in the marital dwelling is worth more than $6,500. That the court intended for the Former Wife to receive her one-half interest in the equity in the marital home.

The motion requested the court order that the former wife receive one-half interest in the equity of the Hudson Street property.

A hearing was held on September 11, 2006, resulting in the order which is the subject of this appeal. The order required the former husband to sell the Hudson Street property “at fair market value as soon as practicable.” The net sales proceeds from the sale of the property were to be divided equally. The order further required the former husband to pay an additional $2,295 of attorney’s fees to the former wife’s counsel.

The order was erroneous for several reasons. First, although titled “Order on Motion for Contempt,” the order does not contain the findings required to be recited in a civil contempt order pursuant to Florida Rule of Family Procedure 12.615(d)(1). See also Dileo v. Dileo, 939 So.2d 181 (Fla. 5th DCA 2006). Second, as previously noted, it would be improper to find the former husband in contempt for failure to pay an equitable distribution obligation. Hertrich. Third, the trial court lacked the authority to modify the property distribution award set forth in the amended final judgment of dissolution of marriage.

At the time a judgment of dissolution of marriage becomes final, the parties’ property rights, if determined by the judgment, are fixed as a matter of law. A court may clarify what is implicit in the final judgment, and enforce the judgment. But after a final judgment is rendered, the trial court lacks jurisdiction under chapter 61 to determine property rights, unless the final judgment reserves jurisdiction for a specific purpose regarding identified property.

Encarnacion v. Encarnacion, 877 So.2d 960, 963-64 (Fla. 5th DCA 2004) (reference citations omitted).

In the present case, the final judgment did not reserve jurisdiction for a specific purpose regarding identified property.

REVERSED and REMANDED.

PLEUS, C.J. and ORFINGER, J., concur.

      . On appeal, the former husband contends this property is homestead property. However, the limited record before us is devoid of evidence supporting this contention.

      . It appears the former husband did pay the former wife $12,501.07 on August 8, 2006.


text:
    Donald Shawn THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2169.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    Rehearing Denied July 5, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Thomas appeals a final judgment of conviction and sentence after a jury found him guilty of fleeing a law enforcement officer, resisting an officer without violence, and reckless driving. During his trial, Thomas advised the court that he wanted to represent himself for the remainder of the trial. The trial court denied his request without first conducting a Faretta , inquiry. We affirm.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which dealt with a request for self-representation made prior to the commencement of the trial, the Supreme Court held that the Sixth Amendment right to the assistance of counsel includes the right to represent oneself. However, a defendant may waive his right to self-representation, just as he may waive his right to counsel. McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

The waiver of the right to self-representation may be found where a defendant fails to timely assert that right. United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir.1997). Consequently, some federal courts have recognized that if a defendant proceeds to trial with counsel and asserts his right to self-representation only after a trial has begun, the court may deny the defendant’s request, or may otherwise limit or condition the request. Id. See also United States v. Young, 287 F.3d 1352 (11th Cir.2002).

In Florida, it has been held that after a trial has begun with the defendant being represented by counsel, the decision of whether to allow a defendant to proceed pro se rests in the sound discretion of the trial court. Lyons v. State, 437 So.2d 711 (Fla. 1st DCA 1983).

When exercising this discretion, the trial court should make inquiry of the defendant as to why the defendant desires to represent himself. The trial court must then balance the legitimate interest of the defendant against the potential disruption of the proceedings already in progress. Id. at 712.

In the present case, the state had rested and Thomas had testified prior to Thomas stating that he wanted to represent himself. The record reflects that immediately prior to this statement, Thomas was upset and having considerable difficulty in deciding whether he even wanted to remain in the courtroom for his trial. He continuously interrupted the trial judge when the judge tried to explain the benefits of remaining in the courtroom. Furthermore, it appears Thomas’ actual complaint was that the trial was unfair because the initial witnesses were law enforcement officers.

We conclude that under the facts of this case, the trial court did not abuse its discretion in denying Thomas’ request for self-representation. .

AFFIRMED.

PLEUS, C.J. and ORFINGER, J., concur.

      . § 316.1935(1), Fla. Stat. (2005).

      . § 843.02, Fla. Stat. (2005).

      . § 316.192(1), (2)(a), Fla. Stat. (2005).

        . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Gerald Bernard HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-371.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    Rehearing Denied July 3, 2007.
    Gerald B. Humphrey, Crawfordville, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of Appellant’s motion for posteonvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, in our review of this matter, we note that although the appropriate minimum mandatory sentences were pronounced at the time of Appellant’s sentencing, the written sentencing documents as to counts 1, 4 and 5 failed to reflect that fact. Accordingly, we remand this matter to the trial court with directions that the sentencing documents be corrected to accurately reflect the minimum mandatory sentences orally pronounced. Because this is merely a clerical matter, Appellant need not be present.

AFFIRMED and REMANDED.

SAWAYA, ORFINGER and MONACO, JJ., concur.


author: LAWSON, J.

text:
    Antonio B. ADDERLY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1151.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2007.
    James Purdy, Public Defender, and Blaise Trettis, Assistant Public Defender, Viera, for Petitioner.

      Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Respondent.
   LAWSON, J.

Antonio B. Adderly seeks relief from an order denying his motion for resentencing filed pursuant to section 958.045(5)(c), Florida Statutes (2007). Because Adderly has successfully completed the Department of Correction’s, (“DOC”), “boot camp” program, section 958.045(5)(c) mandates that Adderly be resentenced to a term of probation. We treat Adderly’s filing as a petition for writ of mandamus, grant the writ, and remand with instructions that the trial court resentence Adderly in accordance with section 958.045(5)(c), Florida Statutes.

Adderly was originally charged with second-degree murder with a firearm. He entered a plea agreement with the State, pursuant to which he pled nolo contendere to the reduced charge of manslaughter with a firearm in exchange for a sentence of ten years in prison, followed by two years of supervised probation. Although Adderly was sixteen years old at the time of the plea, he was sentenced as an adult. The sentence was pronounced on January 25, 2001.

On July 11, 2006, the DOC sent a letter to the trial judge stating that Adderly qualified for its “basic training” (or “boot camp”) program, authorized by section 958.045, Florida Statutes, and requesting the judge’s approval for Adderly to participate in the program. On July 19, 2006, the trial judge responded by approving Adderly for the program. Thereafter, DOC placed Adderly in the program, which Adderly successfully completed on January 9, 2007.

On February 9, 2007, Adderly filed a motion for resentencing, seeking release to probation pursuant to section 958.045(5)(c), Florida Statutes. The statute provides in pertinent part:

Upon the offender’s completion of the basic training program, the department shall submit a report to the court that describes the offender’s performance. If the offender’s performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation.

(Emphasis added).

Because Adderly successfully completed DOC’s boot camp program, the trial court has a clear legal duty to comply with the provisions of this statute by modifying Ad-derly’s sentence to a term of probation. See, e.g., Sada v. State, 807 So.2d 146 (Fla. 3d DCA 2002); Smith v. State, 750 So.2d 754 (Fla. 1st DCA 2000).

We note that section 958.045(5)(c), Florida Statutes, was amended effective July 1, 2006, and now provides that a youthful offender who violates the probationary term imposed following successful completion of the boot camp program may be sentenced, upon revocation of the probation, to any sentence that could have originally been imposed on the charge. See Ch. 06-270, § 1, Laws of Fla. Prior to this statutory change, a defendant who violated probation after completing boot camp could only be sentenced to 364 days in jail. See, e.g., Fettler v. State, 885 So.2d 411, 412 (Fla. 1st DCA 2004) (“It is well established in the courts of Florida that when a youthful offender successfully completes boot camp, he may not be sentenced to more than 364 days of incarceration upon a violation of the subsequent period of probation.”).

WRIT GRANTED; REMANDED WITH DIRECTIONS TO MODIFY SENTENCE.

ORFINGER and TORPY, JJ., concur.

      . Similar to Fettler, we have identified the following cases stating and applying the old rule, which has now been superseded by the amendment to section 958.045(5)(c), approved by chapter 06-270, Laws of Florida: Porter v. State, 940 So.2d 579 (Fla. 1st DCA 2006); Eason v. State, 932 So.2d 465 (Fla. 1st DCA 2006); Diaz v. State, 929 So.2d 668 (Fla. 1st DCA 2006); Cutler v. State, 927 So.2d 249 (Fla. 2d DCA 2006); Claridy v. State, 911 So.2d 856 (Fla. 1st DCA 2005); Green v. State, 902 So.2d 898 (Fla. 1st DCA 2005); Holmes v. State, 899 So.2d 432 (Fla. 3d DCA 2005); Lee v. State, 884 So.2d 460 (Fla. 4th DCA 2004); Mims v. State, 871 So.2d 1003 (Fla. 1st DCA 2004); Blaxton v. State, 868 So.2d 620, 621 (Fla. 2d DCA 2004); Mason v. State, 864 So.2d 1225 (Fla. 1st DCA 2004); Lawson v. State, 845 So.2d 986 (Fla. 1st DCA 2003); Williams v. State, 841 So.2d 685 (Fla. 5th DCA 2003); Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002); Burkett v. State, 816 So.2d 767 (Fla. 1st DCA 2002); Geri v. State, 797 So.2d 605 (Fla. 1st DCA 2001); and Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000).


text:
    Jairaj M. ABUVALA, Appellant, v. Candace E. ABUVALA, Appellee.
    No. 1D07-0311.
    District Court of Appeal of Florida, First District.
    May 25, 2007.
    E. Jane Brehany, Pensacola, for Appellant.
    James L. Chase, Pensacola, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 26, 2007, the Court has determined that the appeal is premature. Specifically, because judicial labor remains with regard to distribution of the property identified in paragraphs 15 and 46 of the order, the order is not a final order. See generally Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (“[a] final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary”); Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) (dismissing appeal from order of dissolution of marriage that reserved jurisdiction to determine equitable distribution). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

In light of the dismissal, the appellant’s Motion for Extension of Time, filed on March 7, 2007, is hereby denied as moot.

LEWIS, POLSTON, and ROBERTS, JJ., concur.


text:
    Bobby Lee GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2064.
    District Court of Appeal of Florida, First District.
    May 25, 2007.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Bobby Lee Griffin, appeals the trial court’s order revoking his probation. Griffin was on probation as a result of his convictions for lewd and lascivious molestation. On appeal Griffin alleges the lower court erred (1) finding Griffin committed a willful and substantial violation of his probation for failure to complete a sex offender treatment program on the first try when there was time remaining in his probationary period; and (2) in admitting the results of Griffin’s polygraph examination, over his objection, to establish the probation condition was violated. We decline to address Griffin’s first argument, as Griffin failed to raise this issue during the lower court proceeding, and it is, therefore, not preserved for this Court to review. See Jones v. State, 876 So.2d 642, 644-45 (Fla. 1st DCA 2004) (finding the probation proceeding is an extension “of the sentencing process and is therefore subject to its preservation requirements” so errors must be preserved by timely objection or by filing a FRCP 3.800(b) motion); Mills v. State, 840 So.2d 464, 467 (Fla. 4th DCA 2003) (concluding that because counsel did not object regarding the “specific time period within which [appellant] was to complete the program,” the argument was not preserved). On the second issue, we conclude the trial court abused its discretion by admitting Appellant’s polygraph examination results into evidence. Accordingly, we REVERSE and REMAND for a new evidentiary hearing.

During the probation violation hearing, the results of the polygraph test were admitted into evidence over Griffin’s objection. The results were repeatedly discussed throughout the hearing. A substantial part of the hearing was focused on Griffin’s “failure” of the polygraph exam. The trial judge used the results in his decision that Griffin violated probation, noting “... with Mr. Griffin’s failure to pass the required polygraph exam ... I’ll find that he has not satisfactorily complied with the terms of his probation.” Based upon one condition violation, the trial court revoked Griffin’s probation.

“The results of the polygraph examination shall not be used as evidence in court to prove that a violation of community supervision has occurred.” § 948.30(2)(a), Fla. Stat. (2005); see also Cassamassima v. State, 657 So.2d 906, 910 (Fla. 5th DCA 1995). “The results of a polygraph test remain inadmissible in both civil and criminal cases because of unreliability.” Lane v. State, 762 So.2d 560, 561 (Fla. 5th DCA 2000) (citing Farmer v. City of Ft. Lauderdale, 427 So.2d 187 (Fla.1983); Kaminski v. State, 63 So.2d 339 (Fla.1952)). Here, the lower court used and considered “results of the polygraph examination ... as evidence in court to prove that a violation of community supervision has occurred,” which is expressly contrary to the statutory mandate. See § 948.30(2)(a). The trial court erred by both admitting the results into evidence and by considering the failure of the polygraph examination as a factor in determining Griffin violated his probation.

Accordingly, we reverse the revocation of probation and remand for a new hearing on the alleged violation.

REVERSED AND REMANDED.

BROWNING, CJ„ BENTON, and LEWIS, JJ., concur.

      . Condition 17(k) of Appellant's probation order also stated, "As part of a treatment program, you will participate at least annually in polygraph examinations to obtain information necessary for risk management and treatment ... The results of the polygraph examination shall not he used as evidence in court to prove that a violation of community supervision has occurred. ’ ’ (Emphasis added).


text:
    David Anthony SUMLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5242.
    District Court of Appeal of Florida, First District.
    May 25, 2007.

      David A. Sumler, pro se.
    Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant David A. Sumler appeals a circuit court order denying his Motion for Relief from Order, and holding that appellant has no right to pursue a direct appeal from the court’s previous order denying his petition for writ of habeas corpus. We reverse the circuit court’s order, and remand for further proceedings.

Appellant was originally convicted on one count of aggravated battery with the use of a deadly weapon, and sentenced to twenty-four years in prison. In January 2005, appellant filed a Motion for Writ of Habeas Corpus in the First Judicial Circuit Court for Escambia County. The circuit court denied his motion. Appellant admits he received the order at the jail on February 17, 2005; nonetheless, allegedly for reasons related to his health, appellant neglected to file an appeal within thirty days.

Accordingly, appellant filed a motion for belated appeal in this court. On August 30, 3005, we denied the motion, citing Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999) (holding that a motion for belated appeal in a criminal proceeding, pursuant to Florida Rule of Appellate Procedure 9.140(j) (currently Rule 9.141(c)), was inapplicable to an appeal from an order denying a habeas petition, a civil proceeding, and thus denying the motion without prejudice to appellant’s right to file a Motion for Relief from Judgment, pursuant to Rule 1.540(b).). Appellant then filed the instant Motion for Relief from Order in the circuit court, pursuant to Florida Rule of Civil Procedure 1.540(b)(1). On September 22, 2006, the circuit court denied appellant’s motion, noting, “[t]he defendant may not appeal the court’s denial [of his habeas petition] on the merits, but must instead petition the appellate court for a writ of certiorari.”

Appellant argues that the circuit court erred in denying his motion on these grounds, because an order on a petition for writ of habeas corpus is subject to review through a direct appeal. We agree. Appellant’s habeas petition was an original action in the circuit court challenging appellant’s judgment and sentence, rather than an appeal from a quasi-judicial decision of an administrative tribunal. Accordingly, Florida law provides, “[a] final order of the circuit court granting or denying a petition for writ of habeas corpus is reviewable by appeal to the appropriate district court of appeal.” See Philip J. Padovano, Florida Appellate Practice § 28.6 (2002); see also Reniewicz v. State, 734 So.2d 1115, 1116 (Fla. 2d DCA 1999) (“The proper vehicle for review of a trial court’s ruling on a petition for habeas corpus in this circumstance is by appeal”).

Therefore, we reverse the circuit court’s order denying appellant’s Motion for Relief from Judgment, and remand the ease to the circuit court for further proceedings.

BROWNING, C.J., POLSTON, and HAWKES, JJ., concur.


author: HAWKES, J.

text:
    Pamela NEVIN, Petitioner, v. PALM BEACH COUNTY SCHOOL BOARD and F.A. Richard & Associates, Respondents.
    No. 1D06-4967.
    District Court of Appeal of Florida, First District.
    May 25, 2007.

      Bill McCabe, Tallahassee, for Petitioner.
    Hinda Klein, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer P.A., Hollywood, for Respondents.
   HAWKES, J.

Petitioner seeks certiorari review of the judge of compensation claims’ (JCC) order compelling her to make her expert, who is not expected to testify, available for deposition. Petitioner argues her expert’s opinions constitute non-discoverable work-product. We agree, and conclude the JCC’s order requiring the forced release of work-product constitutes a departure from the essential requirements of law. Accordingly, we grant the Petition and quash the order.

FACTS

Petitioner filed a Petition for Benefits (PFB) alleging her regular and ongoing exposure to mold, mildew, and other occupational irritants resulted in pulmonary and bronchial injuries. Allegedly, these injuries include shortness of breath, headaches, pressure in her ears, burning eyes, a metallic taste in her mouth, sinus pressure, eye pressure, and the presence of a thick green mucus. Respondent denied the claim.

Petitioner’s counsel requested all physical evidence pertaining to Petitioner’s place of employment, a school building, be preserved in its original condition. Specifically, counsel requested there be no tampering, remodeling, or alteration of the school building until after an appropriate inspection had been conducted. The parties agreed to have their respective experts inspect the school on May 24, 2003.

Through discovery, Respondent sought production of the report of Petitioner’s expert, Dr. Salazar; all correspondence to and from Dr. Salazar regarding the school building; all raw data, notes, memo-randa, correspondence, and documents generated by Dr. Salazar regarding the onsite inspection of the school building; and all test results relating to the onsite inspection of the school building. Petitioner responded by asserting work-product objections to each of Respondent’s requests. There is no evidence that Petitioner filed a privilege log in conjunction with its response. Respondent then moved to compel production of the documents, noticed Dr. Salazar for deposition, and subpoenaed Dr. Salazar duces tecum for his deposition.

The parties subsequently entered into a pre-trial stipulation, which indicated Petitioner sought compensability of, and various medical benefits for, the injuries outlined in her PFB. Pursuant to the stipulation, Respondent defended by asserting Petitioner’s condition was not compensable. A witness and exhibit list included in the stipulation did not include Dr. Salazar. The JCC approved the stipulation.

Petitioner then moved for a protective order to prevent Dr. Salazar’s scheduled deposition. As grounds, Petitioner argued Dr. Salazar’s “work and investigation” were undiscoverable work-product, because he was hired by her attorney to perform pretrial investigations and he was acting as an agent of the firm. The JCC issued an order granting the protective order in part, stating if Petitioner intended to “use” Dr. Salazar, Petitioner was required to provide Respondent with a generalized statement of his testimony and make him available for deposition.

Respondent filed another request to produce, essentially seeking the same items sought in the first request to produce. Petitioner responded by indicating “none” for some requests, and “objection work product” for other requests. Respondent moved to dismiss Petitioner’s PFB. The JCC denied the motion, but ordered Petitioner to produce a summary of Dr. Salazar’s opinion within ten days. The JCC further ordered that failure to comply with this order would result in Respondent being entitled to depose Dr. Salazar at Petitioner’s expense.

Petitioner timely filed a “Response to Court Order,” which informed the JCC that no final decision had been made regarding the identity of Petitioner’s expert, and the decision would be made following an interview with another expert. This interview was set to occur within the next two weeks. The response also reiterated that Dr. Salazar was employed by Petitioner through her attorneys, and was working as a private consultant — not an expert witness. Petitioner asserted that Dr. Salazar would provide no testimony at trial, and objected to taking Dr. Salazar’s deposition because he was not designated as Petitioner’s expert witness.

Respondent then propounded a third request to produce, again, seeking essentially the same items sought in the first request, and noticed another deposition date for Dr. Salazar. Respondent served Dr. Salazar with a subpoena duces tecum for this new date. Petitioner again filed a motion for protective order, seeking to prevent the deposition. Once again, the motion argued Dr. Salazar had been employed by Petitioner through her attorneys as a private consultant, not as an expert witness, that Dr. Salazar would not provide any testimony at trial, and that he could not be deposed unless he was designated as Petitioner’s expert witness.

Respondent filed a motion to compel production of the documents requested. Petitioner responded “None in possession” and “None” for some requests, and “Objection, privileged, work-product” for other requests. Following a hearing on Petitioner’s motion for a protective order, the JCC denied the motion and compelled Petitioner to make Dr. Salazar available for deposition within thirty days.

WORK-PRODUCT PRIVILEGE

This court has stated “[fjactual information or materials pertaining to the client’s case and prepared or gathered in connection with the client’s case, may qualify as protected attorney work-product.” Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003) (citations omitted). In clarifying what qualifies for work-product protection, Florida courts have held:

Information relating to a matter which is the subject of litigation, which is received by a party’s attorneys from investigators and adjusters in anticipation of or in connection with litigation, is protected by the work product privilege. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426 (Fla.1952); Federal Express Corp. v. Cantway, 778 So.2d 1052 (Fla. 4th DCA 2001).

Huet v. Tromp, 912 So.2d 336, 338 (Fla. 5th DCA 2005). Such material need not be gathered by the attorney to constitute work-product, but must merely be gathered in anticipation of litigation. See Small, 861 So.2d at 1250 (citations omitted).

“An investigator employed by a party may not be required to produce the work-product of his or her investigations, except in unusual circumstances constituting compelling necessity for the discovery in order to reach the merits of the cause.” Huet, 912 So.2d at 338 (citations omitted). Where an expert has been specially employed in anticipation of litigation but is not expected to be called as a witness at trial, the facts known or opinions held by the expert are deemed to be work-product and may be discovered only “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Fla. R. Civ. P. 1.280(b)(4)(B); Gilmor Trading Corp. v. Lind Elec., Inc., 555 So.2d 1258, 1259 (Fla. 3d DCA 1989); see also Small, 861 So.2d at 1250.

To demonstrate a “need,” sufficient to compel discovery of work-product materials, “a party must present testimony or evidence demonstrating that the material requested is critical to the theory of the requestor’s case, or to some significant aspect of the case.” Small, 861 So.2d at 1250. The trial court should then conduct an in camera review of the requested materials to determine whether the materials are needed, and how the materials could potentially help the requesting party’s case. See id. “During this review, the trial court can evaluate whether the contested materials provide the requisite evi-dentiary value alleged by the requesting party, and determine whether the requested materials are substantially similar to materials already available.” Id. This Court has specifically held that in most situations a desire to use the requested materials to resolve inconsistencies in other available evidence will not be sufficient to establish the requisite need. See id.

Here, Petitioner has not waived her right to assert work-product privilege, because Dr. Salazar is not listed as a witness in the pretrial stipulation. Moreover, at no point has Petitioner asserted Dr. Salazar would provide testimony in this matter. To the contrary, she has consistently averred the opposite. With the invariable persistence of a metronome, Petitioner has argued Dr. Salazar is a consulting expert hired in anticipation of litigation. Thus, barring waiver, Dr. Salazar’s findings and opinions are covered by work-product immunity.

Respondent has failed to overcome the prohibition on the discovery of protected work-product, because Respondent failed to demonstrate a “need” for access to the findings and/or opinions of Dr. Salazar. The record shows Respondent possesses the findings and opinions of its own expert, Ms. Karen Meyer. Ms. Meyer performed an on-site inspection of the school building on the same day as Dr. Salazar. Therefore, Respondent has ready access to the factual information underlying Dr. Salazar’s opinions, and is able of obtaining an expert opinion regarding the condition of the school without undue hardship. The most Respondent could hope to learn from review of Dr. Salazar’s findings and opinions is where they differ from the findings and opinions of its own expert. As this court has previously stated, mere inconsistency is not enough to establish the requisite need.

This case does not present the unusual circumstance where discovery must be compelled “in order to reach the merits of the cause.” Huet, 912 So.2d at 338. Nor can it be argued that Respondent “is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(3); see also Small, 861 So.2d at 1250. Consequently, Respondent is not entitled to discovery of Dr. Salazar’s work-product protected findings and opinions.

THE PRIVILEGE LOG

Respondent argues Petitioner waived her right to assert work-product privilege, because she failed to file a privilege log. We reject this argument for two reasons. First, Petitioner is not asserting a document specific work-product privilege. Second, under the facts of this case, provision of a privilege log is a futile act. For these reasons, as explained more thoroughly below, Petitioner’s failure to file a privilege log did not result in a waiver of her right to assert the work-product privilege.

Florida Rule of Civil Procedure 1.280(b)(5), requires submission of a privilege log regarding materials a party seeks to protect from production to enable other parties to assess the applicability of the privilege or protection. Florida courts have stated that “[although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, [rule 1.280(b)(5) ] is mandatory and a waiver can be found by failure to file a privilege log.” Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006) (emphasis added). The justification for this holding is that “information contained in the privilege log would be necessary to assess the applicability of the privilege or protection.” Id. at 296 n. 1.

Although waiver can be found by the failure to file a privilege log, the facts here do not dictate that it must be found. Waiver for failure to file a privilege log should not apply where assertion of the privilege is not document-specific, but category specific and the category itself is plainly protected. See Matlack v. Day, 907 So.2d 577 (Fla. 5th DCA 2005) (Griffin, J., specially concurring).

Here, the claimed privilege applies to all findings and opinions of an expert retained by counsel in anticipation of litigation and who is not going to testify at trial. This is clearly a categorical claim of privilege, and the category referenced is undeniably protected by work-product immunity. Petitioner has not claimed work-product privilege as to particular documents, reports, or statements of the expert. Rather, Petitioner correctly asserts all of the requested materials are work-product protected because of the very nature of the individual who prepared the findings, documents, reports, and opinions. Accordingly, Petitioner has not waived her work-product privilege by failing to file a privilege log.

The second reason Petitioner has not waived her challenge stems from the long standing principle of law recognizing that “the law does not require a futile or useless act.” Howard v. State, 616 So.2d 484, 485 (Fla. 1st DCA 1993). The purpose of the rule requiring the filing of a privilege log is “to identify materials which might be subject to a privilege or work product protection so that a court can rule on the ‘applicability of the privilege or protection’ prior to trial.’ ” Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1033 (Fla. 4th DCA 2002).

Here, there was no need to identify specific documents, because any document or statement within the purview of the request was clearly subsumed within the categorical privilege claimed by Petitioner. Moreover, the arguments Petitioner presented in her motions for protective orders and at the corresponding hearings where sufficient to permit the JCC to rule on the applicability of the privilege. Requiring Petitioner to file a perfunctory privilege log in this case would serve no legitimate purpose, and would simply elevate form over function.

“Attorney-client privilege and work-product immunity are important protections in the adversarial legal system, and any breach of these privileges can give one party an undue advantage over the other party. Florida’s courts generally recognize that an implicit waiver of an important privilege as a sanction for a discovery violation should not be favored, but resorted to only when the violation is serious.” Gosman, 937 So.2d at 296.

Here, Petitioner satisfied the purpose of the rule requiring the filing of a privilege log, and Respondent does not argue Petitioner’s failure to file the log was prejudicial. Consequently, Florida’s disfavor of the waiver of work-product protection compels us to conclude no waiver has occurred.

CONCLUSION

The JCC’s order compelling Petitioner to make Dr. Salazar available for deposition constituted a departure from the essential requirements of law. This error (the forced release of work product) would cause an injury that could not be remedied on appeal from the final order. The JCC’s order is QUASHED, and the matter is REMANDED for proceedings consistent with this opinion.

DAVIS and PADOVANO, JJ., concur.

      . We reject without comment Respondent's claims that Petitioner waived her arguments for appeal.

      . Dr. Salazar was hired by Petitioner through her attorneys.

        . Rule 60Q-6.114(2)(a) of the Workers’ Compensation Rules provides that depositions shall be governed in all respects by the Florida Rules of Civil Procedure. Rule 1.280(b)(4)(B) permits a party to depose an expert not listed as a witness only "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Because Respondent did not show exceptional circumstances, the deposition was not authorized by the applicable rules. This alone constitutes a departure from the essential requirements alone.


text:
    Thomas HINOTE; Angelo Moultrie; Nickolas Walker; and Donald Smith, Appellants, v. FORD MOTOR COMPANY; Ford Motor Company of Canada Limited; Magna International Incorporated; Magna Donnelly Corporation; Donnelly Corporation; and Magna Donnelly International, Inc., Appellees.
    No. 1D06-6657.
    District Court of Appeal of Florida, First District.
    May 25, 2007.

      Neil D. Overholtz and Douglass A. Kreis of Aylstock, Witkin & Sasser, Pensacola, for Appellants.
    David E. Canella of Carlton Fields, P.A., Orlando; Brian D. Boyle of O’Melveny & Myers, LLP, Washington, D.C.; Larry Hill of Moore Hill & Westmoreland, P.A., Pensacola; Wendy F. Lumish of Carlton Fields, P.A., Miami; and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Having considered the parties’ responses to this Court’s jurisdictional show cause order, issued on February 27, 2007, the appeal is hereby DISMISSED as premature.

The appellants brought this appeal from an order rendered on November 22, 2006, which ordered “that defendants’ motion for judgment on the pleadings be and the same is hereby GRANTED and this complaint is dismissed without prejudice.” Because it was unclear to the Court whether the “without prejudice” language was intended to allow the appellants to file a new complaint in a separate action or whether it was intended to allow the appellants to file an amended complaint in this action, it was not clear whether this order was a final appealable order. Compare Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991)(holding dismissal without prejudice to amend complaint in same action is not final), with Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993)(holding dismissal without prejudice to raise issues in a separate future action is final). Therefore, we directed the appellants to show cause why this appeal should not be dismissed as premature. Subsequently, on March 9, 2007, the appellees filed a motion for leave to respond to this jurisdictional show cause order, which motion is hereby granted.

The test of finality is whether the action is disposed of by the order and whether a question remains open for judicial determination. See, e.g., Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002); Carlton, 621 So.2d at 452. Additionally, “[t]o be appealable as a final order, an order must contain unequivocal language of finality.” Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002). An order that dismisses an action “without prejudice” may or may not be a final order depending on whether it unequivocally disposes of the case. However, generally when such language “is used in an order granting a motion to dismiss the complaint, it signifies that the order is not a final order.” See Philip J. Padovano, Florida Appellate Practice § 21.2 (2007 ed.2006). That is, the dismissal of the complaint is without prejudice to amend in the pending action. See, e.g., Augustin, 573 So.2d at 105.

Whether an order unequivocally brings an end to the case by dismissing the action without prejudice to bring another action may be determined by examining the context of the order. Id. The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint, Delgado v. J. Byrons, Inc., 877 So.2d 822 (Fla. 4th DCA

2004); or where there was a failure to serve the defendant, Carlton; or failure to exhaust administrative remedies, Hollingsworth v. Brown, 788 So.2d 1078 (Fla. 1st DCA 2001). In these cases the context of the order provides the additional indicia of finality for the order to be final. This Court has looked to the “statement of the evidence prepared pursuant to Florida Rule of Appellate Procedure 9.200,” to determine that an order was entered without prejudice to file a new action. Eagle v. Eagle, 632 So.2d 122, 123 (Fla. 1st DCA 1994). On the other hand, where it remains unclear whether the order is intended to be final or nonfinal, it is proper to dismiss the appeal as premature because the order does not contain sufficient language of finality to constitute a final order. See Bushweiler v. Levine, 476 So.2d 725 (Fla. 4th DCA 1985).

We recognize that the opinion in Carnival Corp. v. Sargeant, 690 So.2d 660 (Fla. 3d DCA 1997), addressed this issue of finality and reached a different conclusion. In Carnival Corp., the court held that an order of dismissal without prejudice was final where the order notably did not grant leave to amend. We agree that whether or not an order is entered on the merits, and therefore with prejudice, “although critical on the issue of res judicata, is not critical on the issue of appealability.” Gries Inv. Co. v. Chelton, 388 So.2d 1281, 1283 (Fla. 3d DCA 1980). However, an order that affirmatively states the dismissal of a complaint is “without prejudice” is sufficiently equivocal to require further analysis. Such language may render the order nonfinal even without stating the order is “with leave to amend,” unless it is clear in the context of the proceedings that any further proceedings must be brought in a separate action.

It is clear from the context of the proceedings below that the dismissal of the appellants’ complaint was without prejudice to their right to file an amended complaint that corrects the identified defects. Therefore, the order on appeal is not final and we are without jurisdiction to review it. The appellants’ “Motion for Leave of Court to Seek Amendment of Order Pursuant to Rule 1.540(a) of the Florida Rules of Civil Procedure,” filed on January 25, 2007, as well as the pending motions for extension of time to file the initial brief are hereby denied as moot.

BROWNING, C.J., VAN NORTWICK and HAWKES, JJ., concur.


text:
    CHALLENGER INVESTMENT GROUP, LC, Appellant, v. EBONY & IVORY, LLC as assignee of Wesley Johnson and Renell D. Jones, Appellee.
    No. 3D07-1113.
    District Court of Appeal of Florida, Third District.
    May 25, 2007.
    Scott Alan Orth and John L. Penson, for appellant.
    Elgidely Law Office Chartered and Robert F. Elgidely, Fort Lauderdale, for ap-pellee.

      Before COPE, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   Confession of Error

PER CURIAM.

This is an appeal of a summary final judgment of mortgage foreclosure. A confession of error has been filed by appellee Ebony & Ivory, LLC as assignee of Wesley Johnson. Accordingly the summary final judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: MAY, J.

text:
    Mondre Damion POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2785.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Rehearing Denied July 18, 2007.
    Carey Haughwout, Public Defender, and Lindsay Hanson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for possession of cocaine with intent to sell within 1000 feet of a school. After the denial of his motion to suppress, the defendant entered a no contest plea reserving his right to appeal. He argues the trial court erred in denying his motion to suppress. We disagree and affirm.

The owner of a convenience store contacted the City of West Palm Beach to participate in a program to control the social environment surrounding his store. The City provided the store owner with two “No Trespassing” signs and advised him where to place them. He was also told not to permit people to congregate on the corner of his property.

Pursuant to the City’s instructions, the store owner asked people not to congregate in the parking lot. He placed one of the “No Trespassing” signs on the side of his building, but did not post one in the back parking lot. That lot did not provide access to the business, but did provide access to an upstairs apartment.

On the night of the defendant’s arrest, the store owner held a cook-out in front of the store. He saw the defendant, who he recognized as an occasional patron, and asked him not to stand on the corner. He did not tell the defendant not to loiter in the back parking lot on that day.

Due to complaints of drug activity in the area, a West Palm Beach police officer sat in an unmarked car down the street from the convenience store. For forty-five minutes, he observed the defendant and another man loitering in the convenience store’s back parking lot. He then watched as the defendant approached the passenger side of a car that had stopped in the street next to the parking lot. He saw the defendant give a small object, which he believed to be drugs, to the car’s occupant in exchange for what appeared to be currency. After the transaction, the defendant returned to the back parking lot. The officer then contacted his back-up marked police unit.

Two officers responded to the call. One of them saw the defendant and another man in the back parking lot as described. He approached the defendant and asked him if he lived in the apartment, was visiting there, or had been shopping at the store. The defendant gave a negative response. The officer then asked the defendant if he had seen the “No Trespassing” sign posted on the side of the building, to which the defendant responded affirmatively.

The officer arrested the defendant for trespassing and searched him incident to that arrest. He found and seized two semi-clear baggies containing cocaine. The State charged the defendant with one count of possession of cocaine with intent to sell within 1000 feet of a school.

The defendant filed a motion to suppress and argued that law enforcement lacked probable cause for the trespass arrest. The trial court denied the motion in a written order concluding “the police had reasonable grounds to believe [the defendant] had sold drugs based on the facts and circumstances of this case. Moreover, there was probable cause based on the evidence to arrest Mr. Powell for trespass. At this motion the State does not have to win the case for trespass but simply establish a reasonable basis for a belief that the crime had been committed.” The defendant changed his plea and reserved his right to appeal the denial of his motion to suppress..

Orders on motions to suppress present this court with mixed questions of law and fact. Connor v. State, 803 So.2d 598, 605 (Fla.2001) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997)). This requires us to apply a two-tiered standard of review. Factual findings are clothed with a presumption of correctness and are accepted as true if supported by competent, substantial evidence. Id.; Porter v. State, 765 So.2d 76, 77 (Fla. 4th DCA 2000) (en banc). Legal issues are reviewed de novo. Connor, 803 So.2d at 605.

In this case, the defendant was arrested for trespass, a first degree misdemeanor. Law enforcement officers are authorized to make a warrantless arrest for a misdemeanor when it is committed in their presence. § 901.15(1), Fla. Stat. (2004).

The defendant argues that the State lacked probable cause to arrest him for trespass because it failed to show that he was advised that he could not enter or remain on the property. He relies on Smith v. State, 778 So.2d 329 (Fla. 2d DCA 2000), to support his position. The facts of that case, however, belie his argument.

In Smith, the defendant was a stranger to the convenience store. According to store policy, employees would ask loiterers to leave the area after ten minutes. If the person failed to leave, the employees would summon law enforcement. The store owner had authorized law enforcement to issue trespass warnings.

Law enforcement observed the defendant in the parking lot approaching individuals for ten minutes. Law enforcement arrested Smith for trespass. Drugs were discovered during a search incident to arrest. Smith argued the drugs should be suppressed because law enforcement lacked probable cause to arrest him for trespass because he was not advised that he could not remain on the property. The trial court denied Smith’s motion to suppress. The Second District reversed. The court held that Smith did not have notice of being at risk of arrest for trespass. Id. at 329-31.

Here, however, the facts are much different. The store owner “asked everybody in the back of the building to stay from back there.” On the evening of the defendant’s arrest, the store owner specifically told the defendant not to stand on the corner because law enforcement had asked the store owner to “maintain social control” of the property. And, the defendant admitted to having seen the “No Trespass” sign and was not on the property to use the store.

This defendant knew he was not permitted to be on the property by actual notice provided by the store owner and by the “No Trespass” sign. The defendant admitted knowledge of the sign. He had been observed on the premises for a significant period of time by law enforcement. In fact, one officer had observed the defendant participate in what appeared to be a drug transaction and then return to the back parking lot. These facts provided probable cause for law enforcement to arrest the defendant for trespass. The trial court properly denied the motion to suppress.

Affirmed.

FARMER and KLEIN, JJ., concur.

      . The store is 569 feet away from a public middle school.


text:
    I.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6323.
    District Court of Appeal of Florida, First District.
    May 31, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

I.M. was adjudicated delinquent for committing arson and burglary based upon evidence that he and friends set fire to a middle-school band room. On appeal, this court affirmed the adjudication of delinquency and affirmed a portion of the restitution order, but reversed and remanded the remaining amount, because it represented replacement value rather than fair market value. I.M. v. State, 917 So.2d 927, 934-35 (Fla. 1st DCA 2005).

At the evidentiary hearing on remand, the school’s Director of Facility Maintenance, Greg King, testified that he had contacted his vendors to determine the fair market value of the damaged or destroyed items, such as instruments, choir robes, risers, etc., yielding a total of $31,143. The court overruled I.M.’s objection that King’s testimony was based upon hearsay, which, by itself, was insufficient to establish the amount of restitution. This was error.

Although the victim/owner’s opinion regarding the fair market value is sufficient to establish value, the victim/owner must have personal knowledge of value, and may not base his or her opinion upon hearsay; Greg King did not have personal knowledge of the value of the ruined items, but relied upon the opinions of his vendors, who did not testify. On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested. See, e.g., B.L.N. v. State, 722 So.2d 860 (Fla. 1st DCA 1998); C.S. v. State, 617 So.2d 863 (Fla. 1st DCA 1993); Bonner v. State, 899 So.2d 1212 (Fla. 2d DCA 2005); Davis v. State, 707 So.2d 842 (Fla. 2d DCA 1998).

Also at the hearing below, the court deferred monthly payment of restitution until the child finishes school or turns 18. The court properly overruled LM.’s objection that restitution should not be imposed at all, because the child did not have the ability to pay. Under section 775.089(6), Florida Statutes (2005), the defendant’s ability to pay must be determined at the time the restitution order is being enforced, not when it is imposed. See Banks v. State, 732 So.2d 1065 (Fla.1999).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with this opinion.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


text:
    Marvin BACCHUS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5272.
    District Court of Appeal of Florida, First District.
    May 31, 2007.

      Marvin Bacchus, pro se, Petitioner.
    Bill McCollum, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the trial court’s denial of his motion for mitigation of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the Petitioner’s motion on the mistaken belief that it no longer had jurisdiction to rule. Because the motion was filed within 60 days of the date that mandate issued in the Petitioner’s direct appeal, the motion was timely. See Fla. R.Crim. P. 3.800(c). Therefore, the trial court had jurisdiction to consider petitioner’s motion, and its failure to do so is a departure from the essential requirements of the law. Atkins v. State, 851 So.2d 829 (Fla. 1st DCA 2003).

Accordingly, we grant the petition for writ of certiorari, vacate the order denying petitioner’s rule 3.800(c) motion for lack of jurisdiction, and remand with directions to consider petitioner’s motion on its merits.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


author: PALMER, J.

text:
    Russell J. OSBORNE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4224.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.

      Russell J. Osborne, Jr., Bristol, pro se.
    No Appearance for Appellee.
   PALMER, J.

Russell J. Osborne, Jr. (defendant) appeals the order entered by the trial court summarily denying his rule 3.850 motion for postconviction relief. Determining that the trial court erred in concluding that the defendant’s motion was untimely filed, we reverse.

In 1994, the defendant pled nolo conten-dere to committing four counts of lewd and lascivious acts upon his child, who was under 16 years of age. He was sentenced to a term of community control followed by a term of probation. No direct appeal was taken.

In 1997, the defendant was adjudicated guilty of violating his community control and was sentenced to a term of twelve years’ incarceration on each count. Again, no direct appeal was taken.

The defendant has now filed a rule 3.850 motion. The sole issue raised in the motion is the claim that the defendant’s trial counsel was ineffective for failing to advise the defendant of the contents of a private investigator’s report regarding the infidelity of the defendant’s wife. The defendant contends that this claim constitutes newly discovered evidence because he did not learn of the existence of the contents of said report until 2005, when his father told him about it.

In the motion, the defendant alleges that his wife fabricated allegations that the defendant sexually abused their child in order to remove the defendant from the home, so that she could openly engage in an affair with her paramour. The motion further alleges that the defendant told his trial counsel about his wife’s affair, but his attorney advised him that, since there was no proof of same, entering a plea would be in his best interest. The motion alleges that the private investigator’s report did in fact provide proof of his wife’s affair but his trial counsel failed to disclose its existence to him. The motion alleges that the defendant would not have entered his pleas if trial counsel had disclosed the private investigator’s report to him.

The trial court summarily denied the defendant’s motion, concluding that the information did not qualify as being newly discovered evidence because the defendant admitted that his trial counsel was aware of the existence of the report at the time of trial. In addition, the trial court held that the basis of the defendant’s claim was hearsay within hearsay within hearsay, which did not meet the criteria for admissibility. This appeal timely followed.

Rule 3.850(b) of the Florida Rules of Criminal Procedure provides that a motion filed pursuant to the rule shall not be considered if filed more than two years after the defendant’s judgment and sentence became final, unless the motion alleges that the facts upon which the claim is predicated were unknown and could not have been ascertained by the exercise of due diligence.

The trial court rejected the defendant’s newly discovered evidence claim on the basis that the defendant’s trial counsel commissioned the report and, therefore, was aware of the report at the time of trial. To support its ruling, the trial court cited to State v. Gunsby, 670 So.2d 920 (Fla.1996), wherein the Court explained that, generally, to qualify as newly discovered evidence, the evidence must have been unknown to the court, party, and counsel at the time of the trial. However, the basis of defendant’s motion is that, although his trial counsel had possession of this report at the time of the entry of the defendant’s plea, counsel was ineffective in not disclosing it to the defendant. Thus, counsel’s knowledge of the report cannot be used to defeat the defendant’s claim that he was unaware of this report during the time period normally available to file a motion for postconviction relief due to counsel’s ineffectiveness. The trial court should have conducted a hearing to determine when the defendant personally knew or reasonably should have known of the report. Accordingly, we reverse the trial court’s determination that the motion was not timely filed because of trial counsel’s knowledge of the report.

In addition, the trial court’s conclusion that the information supporting the defendant’s motion was hearsay within hearsay within hearsay is not a proper basis for the summary denial of the motion. If the allegations of the motion, on their face, would be sufficient to grant the motion if true, then the defendant is enti-tied to receive a hearing. In postconviction proceedings alleging newly discovered evidence, a defendant must show that withdrawal of the plea is necessary to correct a manifest injustice. Miller v. State, 814 So.2d 1131 (Fla. 5th DCA 2002). Ordinarily, that determination needs to be made by the trial court after conducting an evidentiary hearing. See e.g., Barrow v. State, 940 So.2d 1235 (Fla. 5th DCA 2006). Accordingly, the trial court is directed to set an evidentiary hearing on the defendant’s motion.

REVERSED and REMANDED.

MONACO and TORPY, JJ., concur.

      . See Fla. R.Crim. P. 3.850.


author: ORFINGER, J.

text:
    Tywan OBARA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3580.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    Rehearing Denied July 5, 2007.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Tywan Obara appeals his judgments and sentences for fleeing or attempting to elude a police officer, grand theft of a motor vehicle, driving while license suspended or revoked, and reckless driving. The issue we must resolve is whether the trial court violated Mr. Obara’s double jeopardy rights by recalling him after his sentencing hearing had concluded and re-sentencing him to a term greater than that earlier pronounced. We conclude a double jeopardy violation did occur, reverse Mr. Obara’s sentences and remand for resen-tencing consistent with the original plea agreement.

Pursuant to a written plea agreement with the State, Mr. Obara pled guilty to his charges with the understanding that he would be sentenced to twenty-two months in prison. The plea agreement contemplated that he would be released on his own recognizance pending sentencing, subject to the following conditions:

(1) I must appear at the probation office at 2853 Garden Street, Titusville, FL 32922 ... and schedule a presen-tence investigation interview no later than the first business day following the entry of my plea.
(2) I must obey the order of the Court requiring me to undergo drug or alcohol screening or for other evaluation if such an order has been made in my case.
(3) I must appear on time for all appointments with the assigned probation officer and not be under the influence of any illegal drugs or alcohol.
(4) I must appear in court on time for sentencing and not be under the influence of any illegal drugs or alcohol.
(5) I must have no contact with the victim (Direct or Indirect).
(6) I must not be arrested for a violation of any criminal law. If clear and convincing evidence is found to support my arrest, the arrest will constitute a violation of this plea agreement.

The plea agreement also provided:

I understand and agree that if I fail to comply with any of the conditions set forth above I will have breached my plea agreement. In that event I will not be allowed to withdraw my plea and the Court may sentence me to any sentence authorized by law for the offense(s) to which I have pled, including the statutory maximum penalty for each crime to which I have pled under this document.

(Emphasis added). During the plea hearing, the trial judge informed Mr. Obara that:

What this means is if you commit a new law offense, if you fail to appear at the time I’m going to set for your sentencing, if you violate any of the other conditions I’m going to put on here while you’re out, then you come back and I can sentence you up to that ten years and a hundred and twenty days that we talked about and you won’t have any way to complain about it.
And, of course, no drugs or — well, alcohol okay, but no drugs.

Mr. Obara acknowledged that he understood the conditions of the plea agreement and was released pending sentencing.

Some weeks later, Mr. Obara appeared as required for sentencing, and the trial court imposed the agreed upon twenty-two-month prison term. He was immediately taken into custody and removed from the courtroom to a nearby holding cell where he was searched. The search revealed two small baggies of marijuana hidden in his shoes. The discovery of the drugs was brought to the trial judge’s attention about ten minutes later. Mr. Obara was promptly recalled to the courtroom. Following a hearing, the trial judge concluded that he had violated the conditions of his plea agreement by possessing marijuana during his sentencing hearing. Thereafter, over defense counsel’s objection, the trial judge resentenced Mr. Obara to concurrent terms of five years in prison.

We find the instant case to be controlled by the supreme court’s holding in Ashley v. State, 850 So.2d 1265 (Fla.2003), that once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. See also Shepard v. State, 940 So.2d 545 (Fla. 5th DCA 2006). The State tried to distinguish Ashley, arguing that double jeopardy principles are not implicated because Mr. Obara had not begun to serve his sentence, as he had not yet been transferred from the court’s custody. We acknowledge that in Curtis v. State, 789 So.2d 394 (Fla. 4th DCA 2001), the fourth district court adopted the State’s view. However, Curtis overlooked the supreme court’s decision in Troupe v. Rowe, 283 So.2d 857 (Fla.1973). In Troupe, the trial court accepted the defendant’s plea, imposed sentence and concluded the sentencing proceedings. Later that day, the trial court changed its mind, declined to accept the plea and ordered the parties to proceed to trial. The Florida Supreme Court entered an order prohibiting the retrial of the defendant finding that a “final, conclusive judgment and sentence” had been pronounced by the trial judge. Troupe, 283 So.2d at 858. Accordingly, the supreme court found that jeopardy had attached, notwithstanding the short time period between the conclusion of the initial sentencing proceeding and the trial court’s decision to reject the previously accepted plea. Id. at 860. Our decisions in Colon v. State, 905 So.2d 1000 (Fla. 5th DCA 2005), and Comtois v. State, 891 So.2d 1130 (Fla. 5th DCA 2005), are consistent with Troupe,

Mr. Obara is also entitled to the benefit of his originally imposed sentence because his conduct, while unlawful, did not violate the express conditions of his written plea agreement. “A plea agreement is a contract and the rules of contract law are applicable to plea agreements.” Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998). “When a contract is clear and unambiguous, the court is not at liberty to give the contract ‘any meaning beyond that expressed.’ Further, when the language is clear and unambiguous, it must be construed to mean ‘just what the language therein implies and nothing more.’ ” Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995) (citations omitted). Because the terms of Mr. Obara’s plea agreement are clear and unambiguous, the agreement must be enforced. The State concedes that Mr. Obara was not under the influence of drugs at the time of his sentencing nor had he been arrested for a violation of the law. Hence, no violation of the express terms of the agreement occurred prior to sentencing. Had the drugs been discovered earlier, he could have been arrested and would have been in violation of his plea agreement, but since the discovery occurred after the sentencing hearing concluded, no violation of the express terms of the agreement occurred.

For these reasons, we reverse Mr. Obara’s sentences and remand for resen-tencing consistent with the original plea agreement. Should the State wish to pursue criminal charges against Mr. Obara for possession of drugs at the time of sentencing, it is, of course, free to do so.

REVERSED AND REMANDED FOR RESENTENCING.

PLEUS, C.J. and EVANDER, J., concur.

      . The record refers to the appellant as both Tywan Obara and Tywan O’Bara.

      . See also Williams v. United States, 422 F.2d 1318 (5th Cir.1970) (holding that when defendant has not been transferred from court’s custody to place of detention at the time his sentences are altered, service of sentences has not officially commenced, and defendant's rights are not impinged by trial court's timely alteration of his sentences).

      . Curtis is also distinguishable in that it dealt with an illegal sentence. See Curtis (calling defendant back to courtroom for resentencing was not error when the trial court mistakenly used the 1995 sentencing guidelines instead of the 1998 sentencing guidelines in the original sentence). Similarly, in Shepard, when reversing the trial court’s increased sentence, this Court noted that it was significant to our analysis that "the trial judge’s originally pronounced sentence was neither ambiguous nor illegal.” Shepard, 940 So.2d at 547 (citing Comtois). In Mr. Obara's case, the originally pronounced sentence was neither illegal nor ambiguous.


text:
    M.W.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1527.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.

      James S. Purdy, Public Defender, and Susan A. Fagan, 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.

The State filed a petition alleging that M.W.H. had committed the delinquent act of possession of cocaine. After the denial of his motion to suppress, M.W.H. entered a nolo contendere plea, reserving his right to appeal. The trial court withheld adjudication of delinquency, but placed M.W.H. on probation. We affirm the order of disposition.

The evidence, as found by the trial court, established that M.W.H. and his friend, a Mr. Rodriguez, were in a pawn shop. Law enforcement officers were dispatched to the pawn shop to arrest Rodriguez on an out-of-state warrant. Rodriguez and M.W.H. were still in the pawn shop when the officers arrived. Officer Murphy arrested Rodriguez and searched him. During the search, the officer found cannabis on Rodriguez. While escorting Rodriguez to his patrol car, the officer was approached by a pawn shop employee.

The pawn shop employee advised the officer that he had observed M.W.H. go to a secluded place in the shop, remove an item from his wallet, and place that item under a shelf. Officer Murphy then advised M.W.H. of this information and asked him “what’s up?” M.W.H. initially denied any knowledge of hiding an item in the store. Officer Murphy then advised M.W.H. that there was video camera surveillance in the shop. M.W.H. immediately became cooperative and took the officer to the shelf where he had hidden a bag of cocaine. M.W.H. also admitted that he was the owner of the cocaine.

On appeal, M.W.H. raises two issues. First, M.W.H. contends the officer did not have reasonable suspicion to initially detain him. We reject this argument. In Golphin v. State, 945 So.2d 1174 (Fla.2006), petition for cert. filed, 75 U.S.L.W. 3512 (U.S. Mar. 09, 2007) (NO. 06-1251), the Florida Supreme Court recognized that there are three levels of police-citizen encounters. The first level is defined as “consensual encounters,” which involve minima.! police contact and do not invoke constitutional safeguards. During a consensual encounter, a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. The second level of police-citizen encounters is referred to as “investigatory stops.” An officer may conduct an investigatory stop and detain a citizen temporarily if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. The third level of police-citizen encounters is an arrest. An arrest must be supported by probable cause that a crime has been or is being committed. Id. at 1180.

In the present case, the totality of the circumstances would support a finding that the initial contact between the officer and M.W.H. was a consensual encounter. There was substantial competent evidence which would support a finding that M.W.H. was free to ignore the officer’s request to discuss his actions in the pawn shop.

Even if we were to accept MW.H.’s argument that the officer’s initial contact with M.W.H. constituted an investigatory stop, the result would be the same. The information provided by the pawn shop employee gave Officer Murphy reasonable suspicion that M.W.H. was engaged in criminal activity. State v. Hunter, 615 So.2d 727 (Fla. 5th DCA), rev. denied, 626 So.2d 205 (Fla.1993).

M.W.H. next contends that Officer Murphy was required to advise M.W.H. of his Miranda rights prior to any questioning. We also reject this argument. Miranda warnings are only required during a custodial interrogation. State v. Scott, 786 So.2d 606 (Fla. 5th DCA), rev. denied, 805 So.2d 809 (Fla.2001). Custody, for purposes of Miranda, encompasses not only formal arrest, but any restraint on freedom of movement to the degree associated with formal arrest. Arbelaez v. State, 626 So.2d 169, 175 (Fla.1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). A police officer’s questioning of a suspect does not, by itself, convert an otherwise consensual encounter into a custodial interrogation. Scott, 786 So.2d at 610. Here, Officer Murphy approached M.W.H. in public, advised him of the information received from the pawn shop employee, and asked him “what’s up?” This encounter between M.W.H. and the officer clearly was not the functional equivalent of a formal arrest.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

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


text:
    David A. LINDSEY, Appellant, v. Marilyn B. LINDSEY, Appellee.
    Nos. 5D06-1960, 5D06-2017.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    David A. Lindsey, Orlando, pro se.
    Marilyn Byrd Lindsey, Orlando, pro se.
   EVANDER, J.

The former husband appeals from a final judgment of dissolution of marriage. The parties were married on August 10, 2003. There were no children born of the marriage.

The former wife contended the parties had entered into a written property settlement agreement on May 7, 2005 (the Agreement). She filed her petition for dissolution of marriage on June 13, 2005, and sought to have the Agreement incorporated into the final judgment. The former husband challenged the validity of the Agreement. The trial court found the Agreement was reasonable and had been entered into freely and voluntarily. We find no error in the trial court’s decision to enforce the Agreement and incorporate it into the final judgment, as the trial court’s findings were clearly supported by the record.

The former husband raises one other issue that merits discussion. He contends that the trial court erred in sua sponte removing Donald Tobkin as his attorney. Tobkin was the former wife’s first husband, and he and the former wife had engaged in extensive and on-going litigation regarding their three children.

We find it unnecessary to determine if the trial court erred in sua sponte disqualifying Tobkin. Tobkin had filed a limited notice of appearance, which specifically reflected he was only representing the former husband in his domestic violence action against the former wife. Tobkin was not counsel of record in the dissolution of marriage case. The former husband has not appealed any order arising from the domestic violence injunction case.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


text:
    Oscar FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2237.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    Oscar Flores, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Oscar Flores appeals from an order which granted his “motion for clarification,” but denied the relief which Flores sought. Flores requested an order vacating his sentence as illegal, arguing that the sole charge on which he was sentenced had been nolle prossed before his sentencing. Citing to the general rule that any action taken subsequent to the filing of the nolle prosequi is a nullity, Flores claims that he was sentenced illegally. We disagree, and affirm.

On February 6, 2003, Flores was charged in a four-count information with lewd or lascivious battery (count 1); lewd or lascivious molestation (count 2); lewd or lascivious exhibition (count 3); and lewd or lascivious conduct (count 4). All counts related to sexual activity between Flores, then a thirty-one year old male, and his thirteen year old niece. Pursuant to a plea agreement with the State, Flores entered a plea to count 2. The agreement provided that the State would nolle pros all remaining counts, and that Flores would be sentenced to fifty-one months in prison, followed by five years of sex offender probation. The judge conducted a thorough plea colloquy, accepted Flores’ plea, and set sentencing for three days later so that the victim could be present.

At sentencing, the State filed its nolle pros form before the judge imposed the agreed sentence. The form, however, erroneously purported to nolle pros counts 2, 3 and 4, instead of counts 1, 3 and 4. Apparently, no one noticed the error, and the judge simply imposed the agreed sentence on count 2, the charge to which Flores had pled three days earlier. In response to Flores’ motion below, the trial judge entered an order simply clarifying that the nolle pros was intended to apply to count 1, not count 2, and that Flores was properly sentenced on count 2.

Flores is correct in his recitation of the “general rule” that “any action taken subsequent to the filing of the nolle prosequi is a nullity.” Sadler v. State, 949 So.2d 303, 304 (Fla. 5th DCA 2007) (citations omitted). However, the State has no power to nolle pros a charge after jeopardy has attached. E.g., State v. Sokol, 208 So.2d 156 (Fla. 3d DCA 1968). Therefore, the State has no authority to nolle pros a charge after a jury is sworn, id., or after a judge accepts a plea to the charge. E.g., State v. R.J., 763 So.2d 370 (Fla. 4th DCA 1998); Cabrera v. State, 415 So.2d 898 (Fla. 3d DCA 1982). Because the judge had already accepted Flores’ plea to the charge in count 2, the State had no authority to nolle pros count 2 prior to sentencing. Therefore, the purported nolle pros of count 2 was itself a nullity, and the sentence entered on count 2 was legally imposed. The trial court properly denied Flores’ request to vacate his sentence as illegal and properly clarified that the nolle pros should have applied to count 1.

AFFIRMED.

THOMPSON and PALMER, JJ., concur.


text:
    Robert D. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3178.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    Robert D. Lewis, Raiford, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Robert D. Lewis appeals from the denial of his petition for writ of mandamus directed to the State Attorney. Through his petition, Lewis seeks copies of two deposition transcripts of witnesses deposed in preparation for his criminal trial on the charge of capital sexual battery. Following Lewis’ conviction on the charge, the State used at least one of these transcripts to refresh the recollection of witnesses who testified during an evidentiary hearing on Lewis’ motion for postconviction relief. We find that Lewis is entitled to copies of the transcripts, and reverse the trial court’s order.

In general, section 119.01, Florida Statutes (2006), requires all state agencies to open their public records for inspection and copying. The State Attorney’s Office is an “agency” as defined by section 119.011, Florida Statutes. See State v. Kokal, 562 So.2d 324 (Fla.1990). And, the transcripts fit within the broad definition of “public records” found in section 119.011(11), Florida Statutes. Moreover, the State has not pointed to any statutory exemption from the public records law that would apply to these transcripts after Lewis’ convictions became final. The only basis cited for denying Lewis’ public records request was the holding in Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987).

In Burk, the Florida Supreme Court held that the media did not have a right to pre-trial access to unfiled depositions taken in a criminal case. The court grounded this holding on its finding that “such access would severely undermine our adversarial system.” Id. at 384. The court reasoned: “Providing access to unfiled depositions under the guise of chapter 119 ... would not only present serious constitutional concerns for both the accused and innocent third parties, it would also undermine effective advocacy, as counsel may be inhibited from asking certain questions fearing that damaging or prejudicial information may be published before trial.”

Given the. reasoning that lead to the ruling in Burk, we believe that case to be distinguishable. Burk applies to the media’s request for unfiled depositions made during an ongoing, active criminal prosecution. We see no reason to extend Burk to a request from a defendant for material related to his prosecution, after the case becomes final. See also, Kokal, 562 So.2d at 325 (noting the state attorney’s admission that a convicted criminal defendant who filed a proper public records request was entitled to inspect and copy certain records relating to the state’s case against him, “including ... depositions.”). Therefore, we reverse the order on appeal and remand with directions that the court grant Lewis’ petition. The State Attorney shall be required to provide the transcripts, in accordance with the procedures outlined in chapter 119, Florida Statutes (2006).

REVERSED and REMANDED.

THOMPSON and PALMER, JJ., concur.


author: PLEUS, C.J.

text:
    Douglas A. BITZER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3358.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    Rehearing Denied June 29, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

The defendant appeals from the revocation of his probation. We have carefully considered his claims and affirm, save for one aspect. Both the defendant and State agree that the written order of revocation contains a scrivener’s error. The trial court verbally pronounced only that the defendant had violated condition (3) of his probation but the written order of revocation recites violations of conditions (3), (9) and (45). It is well settled that where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. Knight v. State, 954 So.2d 1266 (Fla. 5th DCA 2007); McNeil v. State, 908 So.2d 556 (Fla. 2d DCA 2005).

The cause is remanded solely for the purpose of enabling the trial court to enter a written order of revocation of probation, nunc pro tunc, in accordance with its oral pronouncement. The defendant need not be present for this correction. Knight.

AFFIRMED, REMANDED for correction of scrivener’s error.

GRIFFIN and LAWSON, JJ., concur.