text:
    DVDPLAY, INC., etc., Appellant, v. DVD 123 LLC, etc., Appellee.
    No. 3D06-101.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.

      Lauri Waldman Ross, Miami; MeLus-key McDonald, for appellant.
    Zarco Einhorn Salkowski & Brito and Robert M. Einhorn, Miami, and Owei Z. Belleh, Coconut Grove, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

DVDPlay, Inc. (“DVDPlay”) appeals a non-final order denying its motion to dismiss for improper venue. As the agreement between the parties contains a forum selection clause which mandates that any dispute be litigated in California, and we conclude that the forum selection clause survives either party’s failure to perform under the agreement, we reverse.

DVDPlay, a Delaware corporation with its principal place of business in California, entered into a franchise agreement with DVD 123 LLC (“DVD 123”), a Florida limited liability company, for the operation of kiosks that rent and sell DVDs. DVDPlay was the franchisor and DVD 123 was the franchisee. The franchise agreement contains a mediation clause requiring all claims arising out of or related to the franchise agreement to first be subject to non-binding mediation. The agreement also contains a forum selection clause requiring that any legal action brought in court under the agreement, be brought in the judicial district of DVDPlay’s principal place of business.

A dispute arose between the parties, and each asserted that the other was in breach of the franchise agreement for various reasons. On August 19, 2004, DVD 123 sent DVDPlay a letter stating that DVDPlay was in breach of the agreement and requesting mediation. In response, on September 5, 2004, DVDPlay sent a letter to DVD 123, denying that it was in breach of the agreement, alleging that DVD 123 was in breach of the development schedule of the agreement, and requesting that DVD 123 cure the breach by October 10, 2004. The letter also requested that the alleged breach of the development schedule be added to the mediation, and that DVD 123 contact DVDPlay immediately to schedule the mediation. On October 11, 2004, DVDPlay sent a letter to DVD 123 stating that it did not receive a response to its September 5, 2004 letter, and that it was terminating the agreement. Also, on October 11, 2004, DVD 123 sent its response to the September 5, 2004 letter, denying that it breached the agreement and agreeing to add the development schedule issue to the mediation. DVD 123 continued to request mediation, but DVDPlay refused to mediate, stating that there was nothing to mediate because the agreement was terminated. On August 31, 2005, DVD 123 filed a complaint for damages against DVDPlay in the Miami-Dade County circuit court.

DVDPlay filed a motion to dismiss for improper venue, relying on the forum selection clause of the agreement, which provides that legal action must be brought in DVDPlay’s principal place of business, which is in California. The trial court denied the motion to dismiss, finding that, since DVDPlay had repudiated the agreement, it could not enforce the forum selection clause. DVDPlay appeals that ruling.

As the order denying DVDPlay’s motion to dismiss is based on the interpretation of a forum selection clause, our review is de novo. Am. Boxing & Athletic Ass’n, Inc. v. Young, 911 So.2d 862, 864 (Fla. 2d DCA 2005); Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231, 1233-34 (Fla. 5th DCA 2004); Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1081 (Fla. 5th DCA 2003).

DVD 123 argues that participating in mediation is a condition precedent under the franchise agreement. Thus, when DVDPlay refused to mediate, it waived its right, under the forum selection clause, to litigate the dispute in California. In support of this position, DVD 123 relies on the fact that, when DVDPlay refused to mediate, DVDPlay claimed it was under no duty to do so because the agreement had been terminated. DVDPlay, however, argues that the forum selection clause survives its termination of the agreement, and that the forum selection clause is enforceable despite its refusal to mediate.

We agree that, in the instant case, the forum selection clause survives the termination of the franchise agreement and that the forum selection clause is enforceable even though the parties did not first mediate. The clause in the instant case is a mandatory forum selection clause, as it requires that a particular forum be the exclusive jurisdiction for litigation concerning the contract. See World Vacation Travel, S.A. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001). It is reversible error for the trial court to fail to enforce that contractual obligation, unless the court determines that enforcement of the clause would be unjust, as the result of unequal bargaining power, or unreasonable. Ware Else, Inc., 856 So.2d at 1081-82. Moreover, DVD 123 did not argue that the mandatory forum selection clause was unreasonable or unjust, but instead argued that DVDPlay repudiated the contract and that the clause did not survive such repudiation. The trial court agreed with DVD 123’s argument.

In concluding that DVDPlay repudiated the contract and that the forum selection clause did not survive that repudiation, the trial court relied upon Aberdeen Golf & Country Club v. Bliss Construction, Inc., 30 Fla. L. Weekly D2123, — So.2d-, 2005 WL 2138798 (Fla. 4th DCA Sept.7, 2005). Aberdeen involved a contract for the construction of a new facility at a private club. The contract contained an arbitration provision. During construction, the general contractor discovered mold in part of the old clubhouse being rebuilt. Pursuant to the contract, the general contractor gave notice to the architect of the presence of the mold, asserting that the schedule for the completion of the clubhouse should be changed and that the contract price should be increased due to the presence of the mold. The architect agreed. Rather than taking the steps required under the contract to dispute the architect’s decision, the owner declared a termination of the contract and fired the general contractor. The general contractor commenced litigation, the owner moved to compel arbitration, and the trial court denied the motion.

On appeal, the Fourth District Court of Appeal examined the purpose of the particular arbitration clause contained in the contract. It determined that the purpose of the arbitration clause was to allow the parties to continue working on the project in the event of a dispute over any individual part of the construction plan. Because the Fourth District concluded that the arbitration provision was meant to function during the performance of the contract, and not meant to survive termination of the contract before completion of the project, it found that the owner’s unequivocal termination of the entire agreement empowered the general contractor to forego its own performance of the contract’s provisions, including the arbitration provision. In reaching this conclusion, the court emphasized that the arbitration provision in the contract did not contain a survival clause, and without a survival clause, the provision “went down with the whole.”

We find Aberdeen inapplicable to the instant case and clearly distinguishable. In Aberdeen, the Fourth District determined that the owner’s termination of the contract was a breach by anticipatory repudiation which released the general contractor from its obligations under the contract, including the obligation to arbitrate.. In the instant case, however, it is not clear that DVDPlay’s termination of the contract was a breach by anticipatory repudiation because the termination was based on DVD 123’s alleged failure to cure its own breach within thirty days of receiving notice of the breach, thus allowing DVDPlay, under the terms of the agreement itself, to properly terminate the agreement. Thus, DVDPlay’s termination of the agreement, unlike the termination in Aberdeen, was not clearly a breach by anticipatory repudiation, and therefore did not release DVD 123 from its contractual obligation to bring the action in a California court.

More importantly, Aberdeen is distinguishable, as it is clear that the arbitration provision in Aberdeen was not intended to survive the termination of the contract. The forum selection clause in the instant case, however, clearly was intended to survive the termination of the contract. While the purpose of the arbitration provision in Aberdeen was to allow the parties to continue to work on the project during a dispute, the forum selection clause in the instant case provides for an agreed-upon forum where the parties are to litigate their disputes. While the arbitration provision in Aberdeen did not contain a survival clause, and the Fourth District determined that without such a clause, the arbitration provision “went down with the whole,” in the instant case, the agreement between the parties clearly reflects that the forum selection clause was to survive the termination of the agreement. Section 24.5 provides that:

All provisions of this agreement, which by their terms or intent, are designed to survive the expiration or termination of this agreement, shall so survive the expiration and/or termination of this Agreement, including Section 10, 17, 18, 25.

As section 25 of the agreement contains the forum selection clause, it is clear that it was intended to survive the termination of the agreement and therefore did not “go down with the whole” as the arbitration provision in Aberdeen did. See Exprezit Convenience Stores, LLC v. Transaction Tracking Techs., 2005 WL 2704891 (N.D.Fla.2005)(holding that a choice-of-forum clause is not rendered invalid by the termination of a contract that does not explicitly or implicitly indicate that termination should result in its invalidation); Allied Sound, Inc. v. Dukane Corp., 934 F.Supp. 272, 275 (M.D.Tenn.1996)(stating that “a choice of forum clause does not necessarily expire upon the termination of the agreement from which it derives,” and thus is not voided unless the contract expressly or implicitly indicates such a result); Advent Elecs., Inc. v. Samsung Semiconductor, Inc., 709 F.Supp. 843, 846 (N.D.Ill.1989)(stating that “[i]n the absence of contractual language expressly or implicitly indicating the contrary, a forum selection clause survives termination of the contract,” and that the intent of the parties controls as to the continued applicability of a forum selection clause after such termination).

Because the language of the franchise agreement in the instant case clearly indicates that the parties intended the forum selection clause to survive the termination of the franchise agreement, we reverse the order on appeal and remand for the entry of a dismissal for improper venue.

Reversed and remanded.

      . The agreement provides that DVDPlay may terminate the agreement if DVD 123 does not cure a breach within thirty days of DVDPlay notifying it of the breach.

      . Section 25 of the agreement in the instant case also contains the mediation clause. Therefore, despite DVDPlay's assertion to the contrary, the mediation clause also survived the termination of the contract. However, although DVD 123 originally requested that DVDPlay mediate the claims, it never sought to judicially compel mediation, and instead it filed a lawsuit against DVDPlay. It, therefore, waived mediation. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)(explaming that a party’s contractual right to arbitrate may be waived by actually participating in a lawsuit).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    S.E., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-2342.
    District Court of Appeal of Florida, Third District.
    May 31, 2006.
    Albert W. Guffanti, Miami, for appellant.
    Hillary S. Kambour; Caliane P. Lantz, for appellee.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See M.M. v. Dep’t of Children & Family Servs., 867 So.2d 573 (Fla. 3d DCA 2004).


text:
    STATE of Florida, Appellant, v. Ross E. MORGAN, Appellee.
    No. 4D05-2714.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order granting the motion to suppress statements made by ap-pellee, Ross Morgan. In granting the motion, the trial court relied upon our panel opinion in Canete v. State, 30 Fla. L. Weekly D1387 (Fla. 4th DCA June 30, 2005). After the trial court’s ruling, this court considered Cañete en banc, and issued an opinion contrary to the original panel decision. See Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006) (en banc).

Here, the Miranda warnings given to Morgan were almost identical to the warnings held to be sufficient in Cañete. Therefore, we reverse the order granting the motion to suppress and remand to the trial court for further proceedings.

WARNER, GROSS and HAZOURI, JJ., concur.


author: ORFINGER, J.

text:
    Eduardo I. FILOMENO, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-704.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

ON MOTIONS FOR REHEARING

We grant the motions for rehearing, withdraw our previous opinion dated March 24, 2006, and substitute the following in its place.

Eduardo I. Filomeno appeals his convictions of second degree murder with a firearm and shooting into an occupied vehicle. While none of the claimed errors merit reversal, one deserves discussion.

At trial, Filomeno admitted shooting the victim, Sergio Watson, but claimed that he acted in self-defense. The police found five bullet holes in Watson’s car. Apparently, one of the bullets ricocheted into the car, piercing Watson’s lungs and killing him. According to Filomeno, Watson had stalked him, repeatedly made threats that he “was coming for” Filomeno and gestured with his hand as though pointing a gun at Filomeno. Filomeno’s response to Watson’s threats was to tell him to “bring it on.” Describing the circumstances of the shooting, Filomeno testified that Watson utilized a vehicle to box in his vehicle in a parking lot so that each time Filomeno pulled forward, Watson did the same, thereby, preventing Filomeno from leaving the parking lot. Filomeno testified that he thought Watson had a gun and was reaching for it when Filomeno began shooting, allegedly in self-defense. Two witnesses described Filomeno as shooting only after Watson had driven ten or fifteen feet away, while a third witness testified that Filomeno shot before Watson began leaving the parking area. Not realizing that his shots had killed Watson, Filomeno went home to reload his gun, believing that Watson would “show up at any time.”

The defense had a psychologist examine Filomeno prior to trial. When the psychologist’s testimony was proffered at trial, defense counsel explained to the court that the witness was to describe the “fight or flight” response to the jury. According to defense counsel, the psychologist was prepared to testify that in some highly stressful situations, an individual’s perception of danger may impel them to “fight,” when they perceive that they are being prevented from “flight.” Additionally, the psychologist was prepared to testify that given Filomeno’s situation, his perceptions of danger were both logical and reasonable. Sustaining the State’s objection to the proffered testimony, the trial court concluded that the psychologist’s testimony attempted to put forth the defense of diminished mental capacity, a defense not recognized in Florida. See Chestnut v. State, 538 So.2d 820, 825 (Fla.1989) (holding that evidence of an impaired mental condition, that does not rise to Florida’s definition of insanity, is not admissible).

The admissibility of evidence is within the sound discretion of the trial court, and the trial court’s ruling will not be reversed unless there has been a clear abuse of that discretion. Ray v. State, 755 So.2d 604, 610 (Fla.2000). While the State correctly argues that Florida rejects the defense of diminished mental capacity, we think that the State and the trial court miseharacterized at least some of the proffered evidence as diminished capacity evidence. We view the psychologist’s explanation as to the “fight or flight” response as state-of-mind evidence, analogous to battered spouse syndrome testimony that has been approved many times. See, e.g., State v. Mizell, 773 So.2d 618, 620 (Fla. 1st DCA 2000).

Contrary to the State’s argument, Filo-meno’s theory of self-defense was not that of diminished capacity. Filomeno never contented that his acts were involuntary, or that he could not form the requisite intent to commit the crime charged. Rather, he contended that the proffered evidence was relevant to help the jury understand his state-of-mind, a relevant inquiry on the question of self-defense. The standard jury instruction for self-defense recognizes that a defendant’s perceptions of the surrounding events are relevant when assessing the reasonableness of the use of force in self-defense. See Fla. Std. Jury Instr. (Crim.) Justifiable Use of Deadly Force (stating that “[pjersons are justified in using force likely to cause death or great bodily harm if they reasonably believe that such force is necessary to prevent ... imminent death or great bodily harm to themselves or another cf. Mizell; State v. Nazario, 726 So.2d 349 (Fla. 3d DCA 1999). We conclude that the psychologist could have been permitted to testify about the characteristics of the “fight or flight” response if the trial court concluded that such testimony would have aided the jury in understanding the reasonableness of Filomeno’s belief that he was in mortal danger.

Although we conclude that the trial court erred in stating its reason for excluding the psychologist’s testimony about the “fight or flight” response, we are convinced, after a thorough review of the record, that the error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We reach that conclusion because the jury was fully instructed on the elements of self-defense and Filomeno testified at length why he felt that he could not flee, but was forced to shoot Watson. The jury instruction recognized the existence of a choice between fighting or fleeing. We do not believe that additional testimony about the mental process involved in making that choice would have helped the jury in deciding this issue. The trial court essentially reached this same conclusion when it expressed concerns about whether the expert testimony would aid the jury’s understanding of the issues, after hearing a full proffer of the prepared testimony. Under these circumstances, the exclusion of the expert’s testimony was a proper exercise of discretion. See Jones v. State, 748 So.2d 1012, 1025 (Fla.1999) (explaining that expert testimony should not be admitted unless the subject is beyond the common understanding of the average layman and the testimony will probably aid the trier of fact in its search for truth). The jury had the opportunity to find that Filomeno acted in self-defense, but chose not to do so.

AFFIRMED.

TORPY and LAWSON, JJ., concur.

      . §§ 782.04(2), 775.087(1) & (2), Fla. Stat. (2002).

      . § 790.19, Fla. Stat (2002).

      . It seems doubtful to us that the psychologist would have been permitted to testify that Filo-meno’s actions were reasonable.


text:
    Victor GARVIN, Husband, Appellant, v. Martha GARVIN, Wife, Appellee.
    No. 1D05-4444.
    District Court of Appeal of Florida, First District.
    June 2, 2006.
    Jeanine B. Sasser, Jacksonville, for appellant.
    Janet A. Carver, Fernandina Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983); Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004).

WOLF, WEBSTER, and BROWNING, JJ., Concur.


text:
    TALLAHASSEE PRIMARY CARE ASSOCIATES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D05-4671.
    District Court of Appeal of Florida, First District.
    June 6, 2006.

      L. Michael Billmeier, Jr., of Volpe, Baja-lia, Wiekes, Rogerson, Galloway & Wachs, Tallahassee, Attorneys for Appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, Attorney for Appellee.
   PER CURIAM.

Tallahassee Primary Care Associates (“Employer”) appeals a final order of the Unemployment Appeals Commission (“UAC”) affirming a decision awarding Claimant unemployment benefits. Because we find that the UAC’s decision is not clearly erroneous, we affirm.

Claimant began working for' Employer in February 2004 and was discharged on March 31, 2005, for excessive tardiness and absences. At a hearing to determine Claimant’s eligibility for unemployment benefits, the appeals referee found that Claimant received three written warnings during her employment, with the latest warning being issued on January 18, 2005. Two of Claimant’s warnings were issued for being tardy three times within a 90-day period, and her third warning was issued for tardiness after an appointment which Claimant had informed Employer was running late. Claimant was also absent in February because her child was sick and was absent March 27 through March 31, 2005, also due to her child’s pulmonary illness.

Claimant signed an attendance policy when she began working for Employer. Claimant also signed each written warning that she received, which stated that further incidents of inappropriate behavior could lead to termination; however, Claimant testified that her supervisor told her she could ignore these written warnings. Claimant testified that she did not receive any additional verbal warnings even though she was absent from work after receiving the written warnings.

Claimant’s supervisor testified at the hearing that he conducted verbal coaching sessions with Claimant and that he also verbally warned her regarding her absences. Claimant’s supervisor also provided a document showing that Claimant used more than her allotted sick time. Her supervisor acknowledged that Claimant called in to work during her final absence, but he was unclear whether this final absence was excused or unexcused. The appeals referee concluded that Claimant was using sick leave and other leave to cover her absences.

The appeals referee found Claimant’s testimony to be more credible than Employer’s testimony and concluded that Claimant’s absences did not constitute misconduct connected with work under section 443.036(29), Florida Statutes (2005). Credibility determinations are within the purview of the appeals referee. Andrus v. Fla. Dep’t of Labor & Employment Sec., Div. of Employment Sec., 379 So.2d 468, 470 (Fla. 4th DCA 1980). The appeals referee stated that while Employer made a valid business decision in discharging Claimant, Claimant was not disqualified from receiving unemployment benefits. The UAC affirmed the appeals referee’s decision.

On appellate review, the UAC’s decision is entitled to a presumption of correctness. Morrow v. Alert Non-Emergency Transport, 725 So.2d 418, 419 (Fla. 2d DCA 1999). This court reviews the UAC’s decision to determine whether it is clearly erroneous and whether it is supported by competent, substantial evidence. Smith v. Unemployment Appeals Comm’n, 698 So.2d 1344, 1345 (Fla. 5th DCA 1997).

Courts recognize that excessive, unauthorized absences can constitute misconduct because the absences “presumptively hampers the operation of a business and [are] inherently detrimental to an employer.” Tallahassee Housing Auth. v. Fla. Unemployment Appeals Comm’n, 483 So.2d 413, 414 (Fla.1986). However, “Absences that are properly reported to the employer and are for compelling reasons, such as illness, do not constitute misconduct connected with work.” Franklin v. Unemployment Appeals Comm’n, 841 So.2d 682, 685 (Fla. 2d DCA 2003) (citing Cargill v. Hill, 503 So.2d 1340, 1342 (Fla. 1st DCA 1987)). “In determining whether misconduct has occurred which would disqualify a claimant from receiving unemployment compensation benefits, the statute should be liberally construed in favor of the claimant.” Langley v. Unemployment Appeals Comm’n, 444 So.2d 518, 520 (Fla. 1st DCA 1984).

When an employer attempts to prove that an employee was discharged for misconduct connected with work, the employer must present competent, substantial evidence proving that the absences were both excessive and unauthorized. Mason v. Load King Mfg. Co., 758 So.2d 649, 654-55 (Fla.2000). “Unauthorized” means that the absences were unexcused and without the permission of the employer. Id. After the employer has proven that the employee’s absences were excessive and unauthorized, the burden shifts to the employee to rebut the presumption that the absences constituted misconduct. Id. at 654.

Here, Employer proved that Claimant’s absences were both excessive and unauthorized with the introduction of Claimant’s sick leave and vacation records. The appeals referee’s conclusion of law that Claimant was using sick leave and other leave to cover her absences is not supported by competent and substantial evidence. While Claimant may have used leave to cover many of her absences, she did not have enough leave time available to cover all absences.

Claimant rebutted the presumption that her absences were misconduct connected with work, testifying that Employer told her she could ignore the written warnings she received; therefore, in finding Claimant’s testimony more credible than Employer’s, those absences did not count against Claimant. In addition, none of Claimant’s other documented or admitted absences constitute misconduct which would disqualify her from receiving unemployment benefits: Claimant testified that her absence in February was due to her sick child, and her final week of absences was also due to her sick child; therefore, these absences were not misconduct connected with work. See Gilbert v. Dep’t of Corrections, 696 So.2d 416, 417-18 (Fla. 1st DCA 1997) (holding that the claimant rebutted the presumption that her 23 unscheduled absences were misconduct because of a showing that these absences were caused by domestic violence).

While Employer persuasively argues that the holding in Mason controls, we find the situation here distinguishable. In Mason, the supreme court held that unemployment benefits were properly denied when the employer clearly demonstrated the basis for discharge was the claimant’s substantial and excessive unexcused absenteeism, regardless of whether the last incident resulting in discharge was excused. 758 So.2d at 651. Here, not only is Claimant’s last absence not misconduct, neither is her February absence, nor some of the absences for which she received written warnings because the appeals referee found that Employer was aware of one of these tardies. Additionally, in Mason, the claimant was suspended for two days after accumulating a specified number of absences and was warned that the next absence would result in termination. Here, Claimant was told she could ignore Employer’s written warnings. Further, although Claimant was absent in February, she did not receive any warnings after January 18, 2005. Claimant never suffered any serious consequences for her absences or tardiness until her termination.

We are sympathetic to Employer’s argument that an adverse ruling may discourage employers from working with employees on excessive absences and tardiness and may encourage early termination of employees. We find it admirable that Employer said that it worked with Claimant and that it was sympathetic to her situation; however, based on the appeals referee’s finding that Claimant’s testimony was more credible than Employer’s testimony, we are bound to accept Claimant’s testimony that the written warnings she received were not serious.

We find that because Claimant’s accumulated absences were due to a family emergency and occurred after she was told to ignore Employer’s written warnings, they do not constitute misconduct connected with work which would disqualify Claimant from receipt of unemployment benefits. Because the UAC’s decision is not clearly erroneous and is supported by competent and substantial evidence, we affirm.

AFFIRMED.

BARFIELD, BROWNING, and THOMAS, JJ., concur.


author: MAY, J.

text:
    Benjamin COTTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3568.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, were withdrawn after filing brief. Benjamin Cottrell, Avon Park, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

Voir dire — the method of ensuring a defendant’s constitutional right to trial by an impartial jury — creates the issue in this appeal. The defendant appeals his conviction and sentence for robbery. He argues the trial court erred in denying his challenge for cause to a prospective juror. We agree and reverse.

The Information alleged the defendant knowingly took merchandise away from two store employees with the use of force. During voir dire, defense counsel questioned a prospective juror concerning the defendant’s right to remain silent.

DEFENSE COUNSEL: Now, the Judge had already said [the defendant] and I could sit here and not do a thing. The State could put on all of their evidence, have all of their witnesses come in and testify, we don’t have to do anything. Do you think that’s fair?
PROSPECTIVE JUROR: No, I don’t think its fair.
DEFENSE COUNSEL: Why?
PROSPECTIVE JUROR: You have to say something. It should be both.
DEFENSE COUNSEL: Okay. So, lets say we just do that. That’s what we do, we just sit there. How’s that going to effect [sic] your judgment if selected as a juror?
PROSPECTIVE JUROR: Well, it will effect [sic] my judgment because I[sic] only hearing on one side not on both sides.

Defense counsel moved to strike the prospective juror for cause. The trial court denied the motion.

THE COURT: “Okay. Well, I — she did not say she couldn’t follow the instruction. She didn’t say she’d hold it against you [defense counsel]. She said she’d only hear one side and she wouldn’t think that would be fair cause people like to hear two sides of every story. And, if they’re only presented with one, most people say well, that’s not fair if I only hear one side of the story and I think that’s what she was talking about not whether or not she would follow that instruction. She didn’t in anyway indicate she wouldn’t follow the instruction. And, that’s the reason I didn’t make a note on her during the voir dire. I made a note on every other cause challenge that you all — that either one of you have.

Defense counsel requested an additional peremptory challenge, which the court denied. Counsel exhausted his peremptory challenges and then identified the juror that would have been stricken had the additional peremptory challenge been allowed. The jury found the defendant guilty. The trial court sentenced him to a five-year term of imprisonment.

The defendant argues the trial court abused its discretion when it failed to strike the prospective juror for cause. He suggests the prospective juror’s responses during voir dire created “reasonable doubt” as to the juror’s ability to render an impartial verdict. The State argues the trial court did not abuse its discretion because the prospective juror never said she could not follow the instructions and did not indicate she would hold it against the defendant if he did not present a defense.

“It is,within a trial court’s province to determine whether a challenge for cause is proper, and the trial court’s determination of juror competency will not be overturned absent manifest error.” Fernandez v. State, 730 So.2d 277, 281 (Fla. 1999). Notwithstanding the trial court’s discretion, manifest error occurs when a court retains “a juror who has stated that he would require a defendant to present some evidence of innocence.” Williams v. State, 755 So.2d 714, 716 (Fla. 4th DCA 1999).

This court addressed the same issue in Kramer v. State, 747 So.2d 1046 (Fla. 4th DCA 2000), a case involving similar facts. There, defense counsel asked a prospective juror “if it would be sufficient for him to put on no evidence and to just argue that the state had not proved its case, or would he need more?” Id. at 1047. The prospective juror indicated he would want more. Defense counsel requested the juror be stricken for cause. The court denied the request.' Defense counsel exercised one of his peremptory challenges, exhausted his remaining challenges, and properly preserved the issue. This court reiterated, “that it is ‘manifest error’ to retain a juror who believes that a defendant should have to present some evidence of innocence, even where the juror has been ‘rehabilitated.’” Id. at 1047 (citing Williams).

Here, the prospective juror indicated that it wasn’t fair for only the State to have to produce evidence and that she thought the defendant’s failure to put on a case would affect her judgment. This is the same expression of misunderstanding the burden of proof in a criminal trial found unacceptable in Kramer and Williams. The trial court must excuse a prospective juror for cause if there is any reasonable doubt that the juror possesses the requisite impartial state of mind. Singer v. State, 109 So.2d 7, 23-24 (Fla.1959). And, “close cases should be resolved in favor of excusing the juror rather than leaving doubt.” Huber v. State, 669 So.2d 1079, 1081 (Fla. 4th DCA 1996). The defendant does not have an obligation to rehabilitate a juror who admits some form of bias. See Bryant v. State, 601 So.2d 529 (Fla.1992). We therefore reverse the defendant’s conviction and remand the case for a new trial.

Reversed and Remanded.

STONE and FARMER, JJ., concur.


text:
    Nicholas IACONO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1360.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      John H. Lipinski of The Law Offices of J.H. Lipinski, Esquire, Pembroke Pines, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Nicholas Iacono appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Iacono raised several claims of ineffective assistance of counsel. We affirm the summary denial of all the claims but write to address one issue which we find merits discussion.

Iacono entered guilty pleas to robbery charges in three cases. In his motion, he alleged that he was under the influence of psychotropic medication at the time of his pleas and that, as a result, his pleas were not knowingly and voluntarily entered. Iacono signed a plea form wherein he swore that he was not under the influence of any drugs or alcohol at the time of the plea and that he fully understood the judge’s instructions. During the plea colloquy, Iacono explained to the judge that he had taken Buspar, an anxiety medication allegedly prescribed for severe depression, the night before. Iacono stated under oath that he was feeling “okay” and that nothing prevented him from making a knowing and intelligent decision regarding his plea. Iacono answered all questions during the colloquy appropriately and did not appear to have any difficulty understanding the proceeding.

In his postconviction motion, Iacono alleged that he was “too messed up” to understand the plea form and that he told the judge that the medication was not affecting him because counsel told him to answer in this way. In essence, Iacono has alleged that counsel told him to lie during the plea colloquy. We hold that, under the circumstances of this case, Iaco-no’s claim is legally insufficient to warrant an evidentiary hearing and conclusively refuted by the record. If Iacono had truly been told to lie during the colloquy, even though he was under oath and promised to tell the truth, then Iacono had a duty to inform the judge immediately about counsel’s instruction to commit perjury.

Allowing a defendant to ignore the oath and lie to the court only to later claim that he did so at counsel’s instruction is against public policy as it condones perjury. See § 837.02, Fla. Stat. (describing the third-degree felony of perjury in an official proceeding). The waiver of rights form used when taking a plea, the oath to tell the truth, and the plea colloquy conducted by the court would be rendered meaningless if a defendant could later claim that he was purposefully lying to the court because counsel advised him to do so. A defendant is not entitled to rely on an attorney’s advice to commit perjury above the solemn oath that the defendant makes to the court to tell the truth.

Accordingly, we hold that the signed waiver of rights form and appellant’s sworn statements to the court during the plea colloquy conclusively refute the post-conviction claim that he was “too messed up” to understand the plea. The court asked Iacono specifically about the drugs he was taking and how he was feeling. This is not a case like Rivera v. State, 746 So.2d 542 (Fla. 2d DCA 1999), where the trial court made only a generic inquiry and the defendant merely answered yes or no to standard questions. Rivera was not asked specifically about his medication although he was taking several psychotropic drugs and experiencing “auditory hallucinations the entire time he was in detention.” Id.

We acknowledge that a written plea form and answers to general questions during a plea colloquy may not be sufficient to refute certain claims in some cases. See State v. Leroux, 689 So.2d 235 (Fla.1996). In this case, however, the court’s inquiry and appellant’s response regarding the medication he was taking and its effects on him were specific. Appellant had taken the medication the night before, and he denied that it was affecting his judgment or ability to understand the proceeding. Appellant answered all questions during the colloquy appropriately. We are confident that the trial court would have ordered a competency evaluation if appellant had shown outward signs that he was not mentally competent to enter a plea at the time. See Fla. R.Crim. P. 3.210(b). We encourage trial judges to inquire into matters such as a defendant’s mental illness or medication when deciding whether to accept pleas. Defense attorneys and prosecutors are also encouraged to raise any issues concerning the defendant’s mental state or medication at the time of the plea so that an adequate record is made for review.

The allegation that Iacono’s sworn statements were falsely made because counsel instructed him to lie is legally insufficient to warrant an evidentiary hearing in this case. If a defendant is instructed by counsel to ignore a court’s instructions and the oath to tell the truth, then the defendant must speak up and immediately inform the court. We cannot condone perjury and squander judicial resources by requiring evidentiary hearings on all claims ■ of this kind. As the fifth district recently held in Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006):

This motion presents the all too common occurrence where defendants, in an attempt to invalidate their pleas, contend they committed perjury when they sought to have their pleas accepted. Defendants are bound by the statements made by them under oath; they are not entitled to have their plea set aside by later claiming the plea was involuntary based on their allegedly perjured testimony.

Defendants have a duty to uphold the solemn oath they take to tell the truth. They are bound by their sworn answers during the colloquy. They cannot disregard the oath and later claim it was done at counsel’s direction. Allowing this type of claim would undermine the purposes behind the oath to tell the truth, the plea forms, and the plea colloquy’s determination of voluntariness. See Fla. R.Crim. P. 3.172(c). We align ourselves with the fifth district’s holding in Henry and hold that this claim was insufficient, otherwise refuted by the record, and properly denied.

GUNTHER, WARNER and HAZOURI, JJ., concur.

      . We in no way mean to infer that Iacono’s lawyer in fact instructed him to make false statements.


text:
    Herbert HATHCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1741.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Herbert Hathcock, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the circuit court’s orders without prejudice for appellant to file a legally sufficient rule 3.800(a) motion or a rule 3.850 motion if the resolution of this case would require an evidentiary hearing. See Williams v. State, 899 So.2d 451 (Fla. 4th DCA 2005); Boatwright v. State, 859 So.2d 539 (Fla. 4th DCA 2003); Milne v. State, 807 So.2d 725 (Fla. 4th DCA 2002).

FARMER, SHAHOOD and MAY, JJ., concur.


text:
    James D. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1639.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    James D. Brooks, Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order summarily denying appellant’s rule 3.850 motion for post-conviction relief without prejudice to appellant filing a timely petition for belated appeal due to counsel’s alleged failure to file a notice of appeal. Fla. R.App. P. 9.141(c); McIntyre v. State, 789 So.2d 478 (Fla. 4th DCA 2001).

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


author: WARNER, J.

text:
    COASTAL INVESTMENT PROPERTIES, LTD., a Florida limited partnership; PVP, Inc., a Florida corporation, and Purvin Pujara, Appellants, v. WEBER HOLDINGS, LLC, a Florida limited liability company, Appellee.
    Nos. 4D05-1085, 4D05-2735.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    William S. Isenberg and Jason Scott Coupal of William S. Isenberg & Associates, P.A., Fort Lauderdale, for appellant.
    Steven A. Lessne of Blank Rome LLP, Boca Raton, for appellee.
   On Motion for Partial Reconsideration

WARNER, J.

We grant the motion for partial reconsideration, withdraw our previously issued opinion, and substitute the following in its place.

The appellants, Coastal Investment Properties, Ltd., PVP, Inc., and Purvin Pujara, challenge a final judgment against them based upon a summary judgment in favor of appellee, Weber Holdings, LLC, on its counterclaim for fraud, negligent misrepresentation, breach of warranty, and indemnification, in connection with the appellants’ sale of real property to the appellee. In particular, the court granted summary judgment on the fraud count, finding that the evidence was sufficient to prove that the appellants committed fraud as a matter of law. The trial court’s order granting summary judgment also concluded that even absent fraudulent intent, the appellants made negligent misrepresentations. We reverse because there were material issues of fact remaining.

“In fraud cases, summary judgment is rarely proper as the issue so frequently turns on the axis of the circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge.” Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 991 (Fla. 4th DCA 2003); see also Robinson v. Kalmanson, 882 So.2d 1086 (Fla. 5th DCA 2004). In this case, the gravamen of the appellee’s counterclaim was that the appellants made representations that they had no knowledge of fire code violations on the property, when, in fact, they knew of the violations. While one view of the facts and circumstances may indicate that the appellants were fraudulent in them representations regarding the property, another way of looking at those same facts would show that the appellants did not intentionally mislead the appellee at all. Indeed, in Mr. Pujara’s deposition testimony, he never admitted that he had knowledge of fire code violations on the property. Thus, the appellee did not conclusively prove its entitlement to summary judgment. This case is not that extraordinarily rare fraud case where summary judgment is appropriate. With respect to the appellee’s claims other than fraud, we' conclude that there are genuine issues of material fact as to whether the appellants should have known of the fire code violations and whether the appellee justifiably relied on any of the appellants’ statements. As we are reversing for a new trial, we also reverse the award of attorney’s fees.

The final judgment is reversed and remanded for a trial on the merits.

GROSS and HAZOURI, JJ., concur.


text:
    Little Willie HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-408.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Little Willie Harper, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand prom the Supreme Court op Florida

PER CURIAM.

This court previously entered an opinion in Harper v. State, 874 So.2d 673 (Fla. 4th DCA 2004), reversing the trial court’s dismissal of Harper’s rule 3.800(a) motion challenging the trial court’s retention over one-third of his sentence without entering written findings. We certified conflict with the second district’s opinion in Wright v. State, 684. So.2d 1153 (Fla. 2d DCA 2003). The Florida Supreme Court affirmed the second district’s holding in Wright v. State, 911 So.2d 81 (Fla.2005), determining that this type of challenge is not a cognizable claim in a 3.800(a) motion. The supreme court granted review of Harper, quashed this court’s earlier opinion, and remanded the case to this court for reconsideration of the issue in light of its decision in Wright. See State v. Harper, 928 So.2d 1177 (Fla.2006).

We withdraw our previous opinion, and affirm the trial court’s dismissal of Harper’s rule 8.800(a) motion, in accordance with the supreme court’s decision in Wright v. State, 911 So.2d 81 (Fla.2005).

POLEN, GROSS and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    James L. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4876.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    James L. Brooks, Immokalee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

This is an appeal from an order on a motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). Applying the “could-have-been-imposed” harmless error standard, we affirm.

Appellant contends that a scoresheet prepared for a violation of probation sentencing erroneously scored his primary conviction as armed carjacking, instead of carjacking without a firearm. This error resulted in the scoring of the primary offense as a level nine instead of a level seven, which added 36 extra points to the scoresheet. Under the original scoresheet, the lowest permissible sentence was 66.3 months; with a proper, lower score, the lowest permissible sentence would have been 39.3 months. For the violation of probation, appellant received a ten-year prison sentence, concurrent with other sentences.

The second district has held that a trial court must grant relief under rule 3.800(a) where the record reflects a scoresheet error, unless the “record establishes that the sentence ‘would have’ been the same under a corrected scoresheet.” Wilson v. State, 913 So.2d 1277, 1279 (Fla. 2d DCA 2005) (citation omitted).

Although the “would-have-been-imposed” harmless error test is proper for rule 3.850 motions, State v. Anderson, 905 So.2d 111 (Fla.2005), and rule 3.800(b)(2) motions, Jones v. State, 901 So.2d 255 (Fla. 4th DCA 2005), we do not believe the test should apply to rule 3.800(a) motions.

Rule 3.800(a) entitles a defendant to relief when “court records demonstrate on their face an entitlement to that relief.” If entitlement to relief turns on an inquiry into what a court would have done under a corrected scoresheet, then such entitlement does not appear on the “face” of the record within the meaning of the rule.

Our reading of rule 3.800(a) is that it allows relief in a narrower class of cases than rule 3.850. There is no time limit for 3.800(a) motions and “[ajfter the time for filing 3.850 motions has passed, the State’s interests in finality are more compelling.” Anderson, 905 So.2d at 118. Application of a “would have been imposed” test many years after a sentencing hearing presents practical problems — judges die and retire and memories fade. Id. Where relief appears on the face of the record such practical difficulties do not exist.

The court could have sentenced appellant to 30 years in prison; it sentenced him to only 10 years. Applying the “could-have-been-imposed” standard for harmless error, we affirm and certify conflict with Wilson v. State, 913 So.2d 1277 (Fla. 2d DCA 2005).

We recede from Brotons v. State, 889 So.2d 174 (Fla. 4th DCA 2004), which applied the “would have been imposed” test to an appeal concerning a rule 3.800(a) motion.

STEVENSON, C.J., GUNTHER, STONE, WARNER, POLEN, FARMER, KLEIN, SHAHOOD, TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Gary Miranda WARNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1794.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Gary Miranda Warner, Avon Park, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of the defendant’s rule 3.800(a) motion to correct illegal sentence. The defendant challenges the Department of Corrections’ interpretation of his sentence. Our affirmance is without prejudice to the defendant pursuing his administrative remedies against the Department, after which, he can file a petition for writ of mandamus in the appropriate circuit court. See Smith v. State, 785 So.2d 1237 (Fla. 4th DCA 2001).

STONE, FARMER and MAY, JJ., concur.


author: STRINGER, Judge.

text:
    In re COMMITMENT OF Allen RIDDICK. Allen Riddick, Appellant, v. State of Florida, Appellee.
    No. 2D04-5110.
    District Court of Appeal of Florida, Second District.
    June 9, 2006.
    James Marion Moorman, Public Defender, and Jeanine Cohen, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

For the reasons expressed in Allen v. State, 927 So.2d 1070 (Fla. 2d DCA 2006), we affirm the trial court’s order continuing Riddick’s commitment based on his 2004 annual review. However, based on the procedural issues discussed in Allen, if Riddick’s 2006 annual review has already occurred or is not expected for more than a few months, Riddick should be given a new annual review hearing at which he may present such evidence as- he feels appropriate. Id. at 1074 n. 5.

Affirmed.

ALTENBERND and VILLANTI, JJ., Concur.


author: FULMER, Chief Judge.

text:
    James O. MAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4879.
    District Court of Appeal of Florida, Second District.
    June 9, 2006.
    James O. May, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

James O. May appeals the denial of his motion for postconviction relief in which he raised five grounds of ineffective assistance of counsel. We affirm the trial court’s denial of grounds one, two, three, and five without discussion. However, we reverse the summary denial of ground four and remand for further proceedings.

In ground four, May asserted that trial counsel was ineffective for failing to properly interview, during the voir dire, three prospective jurors who had relatives involved in law enforcement. The trial court summarily denied this claim based on a finding that “this record does not establish any identifiable deficiencies in trial Counsel’s voir dire examination.” Unfortunately, the trial court failed to attach any portions of the record upon which it relied to deny this claim, as it was required to do. See Odom v. State, 770 So.2d 195 (Fla. 2d DCA 2000). We, therefore, reverse and remand for the trial court to either attach those portions of the record that conclusively refute the claim or conduct an evi-dentiary hearing on this issue.

Affirmed in part, reversed in part, and remanded for further proceedings.

DAVIS, J. and FUENTE, WILLIAM, Associate Judge, Concur.


author: FARMER, J.

text:
    Eugene DOUSE, Jr., Petitioner, v. STATE of Florida, and Ric L. Bradshaw, Sheriff of Palm Beach County, Respondents.
    No. 4D06-2067.
    District Court of Appeal of Florida, Fourth District.
    June 12, 2006.
    Carey Haughwout, Public Defender, and Daniel Cohen and Jennifer Marshall, Assistant Public Defenders, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for respondents.
   FARMER, J.

We grant the petition and direct the trial judge to hold an immediate hearing to determine whether release conditions should be modified or, instead, whether this incompetent defendant should be committed to the Department of Children and Family Services.

Defendant was arrested and charged with burglary of a dwelling and grand theft. He was granted conditional pretrial release. Later the trial court entered an order finding him incompetent to proceed and placing him on conditional release to reside with his guardian. More recently he was arrested and charged with another burglary of an occupied dwelling. The state then moved to revoke his pretrial release.

At the hearing on revocation, the State presented evidence of an extensive criminal history as well as the new charge. Defense counsel offered the order finding him incompetent as well as evidence that he had not been receiving medication for his schizophrenia. Counsel argued that under section 916.17, the court has but two options: (1) modify conditions of pretrial release, or (2) commit defendant to DCFS for involuntary treatment. The State countered that defendant is a danger to the community and that the commission of a new offense while at large on pretrial release authorizes the court to revoke his release entirely and remand him to the custody of the Sheriff.

The trial court noted the reports of two doctors, one stating that “the client is not competent to proceed with trial at present and is a candidate for involuntary hospitalization,” and asked the parties to address Parker v. State, 843 So.2d 871 (Fla. 2003), which upheld the power of trial courts to revoke pretrial release upon probable cause to believe that a released defendant has committed a new offense. In response the State argued that “regardless of chapter 916” the court had the authority under section 903.0471 to revoke an incompetent defendant’s release upon the commission of a new offense. The trial court said: “Just because he’s under [chapter] 916 and has been released pursuant to that doesn’t mean that it’s ... sort of a get out of jail card free for any subsequent crimes.” The defense responded that with the finding that he is incompetent, the trial court has but two options: either impose modified conditions of release or involuntarily commit defendant for treatment. The trial court agreed with the State’s analysis:

“the court finds that just because he was found incompetent to proceed under chapter 916 doesn’t mean that no matter what ... crimes he commits thereafter, that somehow falls within the — some protective umbrella that precludes subsequent incarceration. The court finds that ... under [section] 903.0471 that he has violated these conditions of release and that he will be held without bond in both cases.”

It is from that order that defendant seeks our relief.

We must disagree with the trial judge and the State. The finding of incompetency places this defendant into a different statutory category. For competent defendants, section 903.0471 does indeed authorize revocation of release and the imposition of pretrial detention upon the commission of a new offense while on pretrial release from a pending charge. But where, as here, a defendant has been found incompetent to proceed and is then released upon conditions and commits a new offense, section 916.17(2) leaves the trial judge with only two options: modify the conditions of release or involuntarily commit the defendant to DCFS for treatment.

This is obviously a consequence of being incompetent. The principle here is that is a violation of essential fairness to detain an accused in a jail indefinitely when he is incompetent to proceed. While so detained he cannot be tried precisely because he is incompetent to proceed, yet jailhouse treatment for his incompetency is unlikely. It is illogical to hold that an incompetent defendant who commits a new offense thereby loses the protection afforded to those who are incapable of defending themselves. If that were the case, such persons could be detained indefinitely without any finding of guilt. When they become a danger to the community, as here, and the State establishes that no conditions can be fashioned to protect the community, section 916.17(2) provides the option of involuntary commitment to a facility where he will receive treatment.

We therefore grant the writ to the extent of requiring an immediate hearing for the trial judge to select the appropriate section 916.17(2) option. While it may be advisable to have defendant evaluated once again for competency under section 916.12(2), the previous evaluating doctors both opined that this defendant was in need of treatment available only through commitment. We leave it up to the trial judge to decide whether to proceed on the current record or to order new evaluations.

Petition granted.

SHAHOOD and GROSS, JJ., concur.

      . See § 916.106(9), Fla. Stat. (2005) (" 'Incompetent to proceed’ means unable to proceed at any material stage of a criminal proceeding, which shall include trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea ... sentencing....”).

      . There was evidence that defendant has an IQ of 59 and suffers from schizophrenia. The order of incompetency found that he meets the definition of "retardation” in section 916.106(12).

      . He had served 14 years for robbery with a firearm, kidnapping, two unarmed robberies, burglary of a dwelling and attempted burglary. He also had past convictions for felony possession of a firearm, burglary and grand theft.


author: SCHWARTZ, Senior Judge.

text:
    Stephen RANDALL a/k/a Steven Randall, Appellant, v. Kristina RANDALL, Appellee.
    No. 3D04-2932.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Kendra Faulkner Shaw and Daniel Kap-lan, Aventura, for appellant.
    Patterson & Sweeny and John H. Patterson, Jr., Miami, for appellee.

      Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In a prior unsuccessful appeal by the appellant-former husband, Randall v. Randall, 875 So.2d 667 (Fla. 3d DCA 2004) (table), this Court granted the appellee-wife’s motion for attorney’s fees and costs and “remanded to the trial court to fix amount.” Contrary to his primary contention on the present appeal from the resulting order below, we agree with the lower court that it was required to assess a reasonable fee for all the services rendered on appeal by the wife’s counsel without regard to the parties’ respective financial ability and need or any of the other factors stated in Rosen v. Rosen, 696 So.2d 697 (Fla.1997). See Young v. Hector, 884 So.2d 1025, 1026 (Fla. 3d DCA 2004) (“[T]his Court granted the former husband’s motion for attorney’s fees, and remanded to the trial court to fix the amount of the fees.”); Bass v. State Farm Life Ins. Co., 649 So.2d 924, 925 (Fla. 3d DCA 1995) (“This court’s mandate remanded the action to the trial court for the sole purpose of fixing the amount of Bass’ appellate attorneys fees. As such, the trial court followed this court’s mandate by only fixing the amount of appellate attorneys fees.”); Barbara Green, Cracking the Code: Interpreting and Enforcing the Appellate Court’s Decision and Mandate, 32 Stetson L.Rev. 393 (2003).

When the Court determines otherwise, its order says so. See Fischer v. Fischer, 882 So.2d 435, 435 (Fla. 3d DCA 2004) (“[Former husband]’s motion for attorney’s fees and costs on appeal is remanded to the trial court. If the movant establishes his entitlement pursuant to section 61.16, Florida Statutes, and Rosen ..., the trial court is authorized to award the movant all or a portion of the reasonable appellate attorney’s fees.”); Reznik v. Reznik, 865 So.2d 507 (Fla. 3d DCA 2003) (order granting appellate fees) (“Respondent’s motion for appellate attorneys’ fees is provisionally granted and remanded to the trial court to fix amount conditioned on a finding of the wife’s need and the husband’s ability to pay.”); Young v. Hector, 833 So.2d 793, 795 (Fla. 3d DCA 2002) (“As to [the former husband’s] motion for appellate attorney’s fees, we remanded to the trial court. If [he] establishes his entitlement pursuant to section 61.16, Florida Statutes, and Rosen ..., the trial court is authorized to award him all or a portion of the reasonable appellate attorney’s fees. This court concludes that the appeal by [the former husband] lacked merit, and therefore the trial court should give great weight to the factors set forth in Rosen.”); Solernou v. Solernou, 556 So.2d 1144, 1144 (Fla. 3d DCA 1989) (“[W]e provisionally grant an award of costs to the wife, subject to the trial court’s conducting an evidentia-ry hearing to verify the ex-wife’s need and ex-husband’s ability to pay.”), cause dismissed, 564 So.2d 488 (Fla.1990).

We also find no error or abuse of discretion in the amount of the fees and costs assessed below.

Affirmed.


text:
    Stephen CLOUTIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3156.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.

      Maury Halperin, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and WELLS, JJ.
   PER CURIAM.

Stephen Cloutier (“Cloutier”), appeals his conviction and sentence for felony battery. We affirm the conviction, but reverse Cloutier’s sentence.

The trial judge erred in sentencing Cloutier without first obtaining and considering a presentence investigation report. As a first-time felony offender, Cloutier is entitled to a presentence investigation report before sentencing. See Fla. R.Crim. P. 3.710; see also Gibson v. State, 817 So.2d 1084 (Fla. 1st DCA 2002). Therefore, we remand for resentencing and direct the trial court to order and consider a presentence investigation report.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


author: RAMIREZ, J.

text:
    BOBY EXPRESS CO., et al., Petitioners, v. Michele GUERIN, et al., Respondents.
    No. 3D05-2922.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.

      Larry R. Fleurantin & Assoc., North Miami Beach, and Raynold Fleurantin, for petitioners.
    Weiss, Handler, Angelos & Cornwell, P.A., and Carol A. Kartagener, Boca Ra-ton, for respondents.
    Before FLETCHER, RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

Boby Express Co. and Boby Realty, Inc. petition this Court for a writ of certiorari seeking to quash a contempt order of December 9, 2005. We grant certiorari review because the court’s order constitutes a departure from the essential requirements of the law, the departure results in irreparable harm to the petitioners, and the harm cannot be corrected on direct appeal. '

The court ordered the petitioners, non-party witnesses in the underlying dissolution of marriage case, to appear for deposition and produce documents that were listed in a subpoena duces tecum. The court imposed a fine of one-thousand dollars against each of the petitioners for each day until the day on which the petitioners produced all of the documentation enumerated in the subpoena duces tecum.

Civil contempt orders are properly reviewed by certiorari. See Knorr v. Knorr, 751 So.2d 64 (Fla. 2d DCA 1999). The applicable standard of review is whether the challenged order (1) constitutes a departure from the essential requirements of the law; (2) causes material injury throughout the remainder of the proceedings below; and (3) causes injury that is irreparable, as it effectively leaves no adequate remedy at law. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983).

The court’s order departs from the essential requirements of the law on several grounds. First, certiorari review is the only vehicle available to the petitioners to redress any trial court errors. As non-party witnesses, the petitioners are unable to seek review of the trial court’s final order under rule 9.130, Florida Rules of Appellate Procedure. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)(stating that “a non-final order for which no appeal is provided by rule 9.130 is reviewable by certiorari review”).

Second, to sustain a civil contempt fine, the order imposing the fine must include a purge provision. See Politz v. Booth, 910 So.2d 397, 398 (Fla. 4th DCA 2005). Furthermore, the civil sanction imposed cannot be punitive in nature because “the purpose of a criminal contempt fine is to punish, [and] fines for civil contempt are considered coercive or compensatory.” See Parisi v. Broward County, 769 So.2d 359, 363 (Fla.2000). Although the order imposing a fíne here includes a purge amount of one-thousand dollars a day, it is not reflective of a civil sanction. The magnitude of the sanction imposed instead represents an indirect criminal contempt fine and is thus inappropriate.

Additionally, the imposition of sanctions must have some bearing upon the harm suffered by the injured party. See South Dade Farms, Inc. v. Peters, 88 So.2d 891, 899 (Fla.1956). The court below failed to make any finding as to the respondent wife’s actual loss. The court’s imposition of the daily sanction amount is thus not justified. Id. See also Fredericks v. Sturgis, 598 So.2d 94, 97 (Fla. 5th DCA 1992)(stating that “[i]f compensation is intended, the fine must be based on evidence of the injured party’s actual loss”).

Therefore, we grant the petition for cer-tiorari and quash the contempt order.

Certiorari granted; order of contempt quashed.


author: FLETCHER, Judge.

text:
    Garty Alvin WILLIAMS, Appellant, v. INSURANCE NETWORK, INC., and Ocean Harbor Casualty Company, Appellees.
    No. 3D05-2928.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Jay M. Levy, Miami, for appellant.
    No appearance for appellees.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   FLETCHER, Judge.

Insurance Network, Inc. [Network] sold an auto insurance policy to Garty Alvin Williams from Ocean Harbor Casualty Insurance Company [Ocean Harbor]. Williams received an insurance binder evidencing that Williams had paid in full for the one-year coverage from Ocean Harbor. Within one year, Williams was in an auto accident while driving his car. He notified Network of the accident, and Network indicated that Williams did not have coverage and attempted to refund his premium payments. The State of Florida then suspended Williams’ license because he was uninsured.

Williams sued Network for negligence, and Ocean Harbor as the principal in an agency relationship with Network. Williams moved for entry of defaults against both defendants, which were entered by the clerk. Williams then filed a notice for jury trial because the damages were unliquidated. The trial was noticed to all parties, but neither Network nor Ocean Harbor appeared at the trial. Final judgment was entered upon jury verdict in favor of Williams for $85,000, and was served on Network and Ocean Harbor.

More than one year after the judgment had been rendered, Ocean Harbor filed a motion to vacate the judgment claiming that it was never served with process, that it demonstrated excusable neglect, and had a meritorious defense. Network also, more than one year later, filed a similar motion to vacate claiming that it had believed the claims were against its co-defendant Ocean Harbor and thus had believed that it did not have to respond or defend, and that the final judgment was void.

Despite the documentary evidence and testimony that Williams served every paper on both companies’ statutory agents for service of process both before and after defaults had been entered., and that both defendants’ motions to vacate were untimely filed more than one year after entry of judgment, the trial court inexplicably granted the motions of Network and Ocean Harbor and ordered the default judgments vacated. Williams has appealed and we reverse.

Florida Rule of Civil Procedure 1.540 provides that a party has one year from the entry of judgment to file a motion for relief from that judgment, unless the judgment is void for, among other things, lack of service of process or the judgment has been satisfied. Neither Network nor Ocean Harbor has demonstrated on the record governance by the exceptions to the rule’s filing deadline. We therefore reverse the order of the trial court vacating the default final judgments against Insurance Network, Inc. and Ocean Harbor Casualty Insurance Company, and remand for further proceedings consistent herewith and with directions to the trial court to reinstate the final judgment in favor of Williams.

Reversed and remanded, with directions.

      . Insurance Network, Inc. and Ocean Harbor were precluded from filing an answer brief and from presenting an oral argument to this Court in this cause for their failure to adhere to the Florida Rules of Appellate Procedure and a prior order of this Court.

      .
      "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.” [e.s.]
      Fla. R. Civ. P. 1.540(b).


text:
    Benjamin A. McCARTY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Samsonite Co. Stores, Inc., Appellees.
    No. 3D06-181.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Benjamin A. McCarty, in proper person.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

No error has been demonstrated in the ruling of the appeals referee as affirmed by the Florida Unemployment Appeals Commission, that the appellant was disqualified from benefits because of misconduct for repeated absences and tardiness. See Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla.2000); Sanchez v. Dep’t of Labor & Employment Sec., 411 So.2d 313 (Fla. 3d DCA 1982).

Affirmed.


text:
    Paul BRANDRETH, Petitioner, v. Charles McRAY, Director, Miami-Dade County Corrections and Rehabilitation Department; and The State of Florida, Respondents.
    No. 3D06-1076.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.

      Jordan M. Lewin, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for respondents.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Paul Brandreth seeks habeas corpus relief stemming from an indictment for one count of first degree murder, one count of conspiracy to commit first degree murder, and two counts of grand theft. We grant the petition because the trial court improperly denied Brandreth’s request for an Arthur hearing.

Brandreth is incarcerated serving a 235-month sentence in the custody of the United States Federal Bureau of Prisons. The State obtained temporary custody of Brandreth to obtain a final disposition of the pending State case. Pursuant to rule 3.131, Florida Rules of Criminal Procedure, Brandreth requested an Arthur hearing. The State argued that Bran-dreth was not entitled to a bond hearing, and that a bond hearing would be a futile act because a condition of temporary detention prohibited Brandreth’s release on bond, and would be a waste of judicial resources. The State further argued that Brandreth knew of the conditions of the temporary detention, and he waived the right to request the imposition of a bond pursuant to rule 3.131. The trial court denied Brandreth’s request for an Arthur hearing. We find this was error.

Florida law provides that every person is entitled to pre-trial release on reasonable conditions, unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption great. See State v. Paul, 783 So.2d 1042, 1045 (Fla.2001). “[Ejven when a defendant [is] charged with a capital or life imprisonment offense, the trial court still [has] the discretion to grant bail.” Id. The Florida Supreme Court does not recognize any exceptions to these principles. Furthermore, the State’s temporary custody agreement with the federal government cannot extinguish Brandreth’s entitlement to an Arthur hearing. Although it is true that Brandreth cannot now be released from state custody as a result of the federal custody hold, he only seeks a bail amount determination. Setting the Arthur hearing is thus not a useless act. Additionally, there is no evidence in this record that Brandreth waived his right to bail.

We therefore grant the petition and direct the trial court to hold an Arthur hearing.

Petition granted.

      . State v. Arthur, 390 So.2d 717 (Fla.1980).


author: DAVIS, Judge.

text:
    Amber ALEXANDER, Petitioner, v. Grady JUDD, Sheriff of Polk County, Respondent.
    No. 2D06-1651.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.

      James Marion Moorman, Public Defender, and Robert Connolly, Assistant Public Defender, Bartow, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Amber Alexander filed a petition for writ of habeas corpus challenging her no bond status in relation to two pending trial court cases in Polk County. In a previous order dated April 26, 2006, this court denied Alexander’s petition as it relates to circuit court case number CF06-000735-XX and granted, with opinion to follow, the petition as it relates to circuit court case number CF06-001943-XX. The order required that a bond hearing be held pursuant to Florida Rule of Criminal Procedure 3.131. Subsequent to this court’s order, the trial court notified this court that Alexander entered pleas in both cases, making the requirement of a bond hearing moot. Despite Alexander’s plea agreement, this court, in accordance with our previously entered order, issues the following opinion regarding the basis for our grant of the instant petition.

Alexander was arrested on March 14, 2006, in case number CF06-001943-XX for possession of methamphetamine and possession of drug paraphernalia. At the time of her arrest, Alexander was on pretrial release for pending charges in case number CF06-000735-XX. At Alexander’s first appearance hearing in case number CF06-001943-XX, the trial court, citing Parker v. State, 843 So.2d 871 (Fla. 2003), ordered that Alexander be held in the Polk County Jail on “no bond hold” status in both case number CF06-001943-XX and case number CF06-000735-XX. Because the trial court exceeded its authority under Parker by holding Alexander without bond in case number CF06-001943-XX, we granted the petition for writ of habeas corpus as to that case.

In Parker, the trial court revoked the bond of a defendant who, while out on bond for pending charges, was arrested on new charges. The Florida Supreme Court held that section 903.0471, Florida Statutes, which allows a trial court to sua sponte revoke pretrial release when there is probable cause to believe a defendant committed a new crime while on pretrial release, is neither a violation of due process considerations nor of article I, section 14 of the Florida Constitution. Section 903.047(l)(a), Florida Statutes (2005), specifically requires that a defendant who is on any form of pretrial release “refrain from criminal activity of any kind.” Section 903.047 is immediately followed by section 903.0471, which is the subject of Parker and states that “[njotwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.”

Alexander was on a form of pretrial release in case number CF06-000735-XX when she was arrested for new charges in case number CF06-001943-XX. These new charges were clearly a violation of Alexander’s conditions of pretrial release in case number CF06-000735-XX. Accordingly, when the trial court relied on Parker to sua sponte revoke the pretrial release in case number CF06-000735-XX, it was properly proceeding under section 903.0471.

However, the trial court not only revoked the pretrial release that was already in effect in case number CF06-000735-XX, but also used Parker to impose a “no bond hold” as to Alexander’s new charges in case number CF06-001943-XX. Because Alexander had never been on any form of pretrial release as to those charges, the trial court could not rely on section 903.0471 to revoke pretrial release that had not yet been imposed. Neither Parker nor section 903.0471 addresses the court’s authority to hold a defendant with no bond on new charges that form the basis of a revocation of pretrial release as to old charges. Therefore, we write solely to clarify that Parker alone cannot be used as .a basis to hold a defendant without bond as to any charges for which the defendant was not already on a form of pretrial release.

Petition previously granted.

CANADY and WALLACE, JJ., Concur.


text:
    Vernal CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3455.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Chief Judge.

Vernal Curry appeals from his convictions for three counts of sexual battery on a child less than twelve and one count of sexual battery on a child between twelve and eighteen by a person in familial authority. Because the trial court erred in improperly limiting the time allowed for defense counsel’s closing argument, we reverse.

Curry first argues that the trial court violated the prohibition against double jeopardy when the court allowed the State to amend counts one and two to conform to the evidence after the court had orally granted a motion for judgment of acquittal on those counts. We recognize that generally when a trial court grants a motion for judgment of acquittal, the court cannot reinstate the charges without violating double jeopardy principles. See Caldwell v. State, 803 So.2d 839, 841 (Fla. 2d DCA 2001); Kelly v. State, 334 So.2d 128, 128 (Fla. 2d DCA 1976); Boone v. State, 805 So.2d 1040, 1040-41 (Fla. 4th DCA 2002); Watson v. State, 410 So.2d 207, 208-09 (Fla. 1st DCA 1982). However, we agree with the State’s assertion that there was no double jeopardy violation here because the trial court reversed itself with respect to the motion for judgment of acquittal within a short time after its initial oral ruling and before the bench conference had concluded. See Simmons v. State, 790 So.2d 1177, 1181-82 (Fla. 3d DCA 2001); Francis v. State, 736 So.2d 97, 99 (Fla. 4th DCA 1999).

Curry next argues that the trial court abused its discretion when it limited his closing argument to twenty minutes. The State asserts that Curry was not unfairly prejudiced by the time limitation.

We agree with Curry that the twenty-minute limitation was error, given the serious nature of the charges and the number of witnesses involved in the case. See Stockton v. State, 544 So.2d 1006, 1008-09 (Fla.1989); Munez v. State, 643 So.2d 82, 82-83 (Fla. 3d DCA 1994). As for the issue of prejudice, we find it relevant that the discussion regarding the time allowed for closing argument took place in front of the jury, and the trial court did not permit defense counsel to approach the bench when he asked to make argument. See Terrazas v. State, 696 So.2d 1309, 1310 n. 1 (Fla. 2d DCA 1997) (commenting on the trial court’s refusal to allow an attorney to approach the bench for argument). The trial court’s refusal to allow defense counsel an opportunity to present his argument at the bench hinders this court’s review on the issue of prejudice. Thus, we are compelled to reverse for a new trial.

Reversed and remanded.

SALCINES and STRINGER, JJ., Concur.

      . Four witnesses testified for the State and five witnesses testified for Curry. Upon conviction, the trial court sentenced Curry to three concurrent terms of life in prison and a fourth concurrent term of thirty years in prison.


author: WHATLEY, Judge.

text:
    Latonya WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2707.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

This is an appeal briefed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), of Williams’ conviction of attempted robbery. We affirm the conviction but remand for correction of a scrivener’s error.

Williams entered into a negotiated plea of guilty whereby the State agreed to reduce her charge from robbery to attempted robbery and to a sentence of five years as a prison releasee reoffender (PRR) if she appeared for sentencing as scheduled. However, if she failed to appear, her sentence would be ten years as a habitual offender with a five-year minimum as a PRR. Williams failed to appear. Consequently, at her rescheduled sentencing hearing, the trial court announced that it was going to abide by the original agreement. The court set forth Williams’ prior record, which it found satisfied the requirements for both habitual offender and PRR sentencing. However, while Williams’ sentence reflects that she received five years as a PRR, it does not reflect that the ten years she received was as a habitual offender. Accordingly, we remand for correction of this scrivener’s error. Because this is a ministerial act, Williams need not be present.

Affirmed; remanded with directions.

ALTENBERND and CASANUEYA, JJ., Concur.


text:
    Raymond YOUNGBLOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3934.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.
   PER CURIAM.

Raymond Youngblood appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He was sentenced on a violation of probation in June 2003 stemming from convictions for crimes that occurred in 1995. Although his argument is not well-crafted, Youngblood seeks to withdraw his guilty plea because the length of his prison term was misrepresented to him at sentencing. The postconviction court summarily denied the motion as untimely, finding that Florida Rule of Criminal Procedure 3.170(Z) allows a defendant who pleaded guilty without expressly reserving the right to appeal a legally dispositive issue to file a motion to withdraw that plea within thirty days after rendition of the sentence. We reverse and remand.

The failure to file a timely rule 3.170(¿) motion does not prevent an involuntary plea claim from being raised in a rule 3.850 motion. See Murray v. State, 909 So.2d 998 (Fla. 2d DCA 2005). Moreover, the record attached to the postconviction court’s order suggests that Youngblood is entitled to relief because the State and defense counsel advised him that he would be transported to the Department of Corrections (DOC) only as a formality and would not have to actually serve a prison sentence due to his previously earned prison credit. See Williamson v. State, 841 So.2d 694 (Fla. 2d DCA 2003) (holding when DOC’s cancellation of credits conflicts with the intent of the plea agreement, the defendant is entitled to be sentenced in such a way that the intent of the negotiated plea is followed or to withdraw his plea).

We therefore reverse the postconviction court’s summary denial of Youngblood’s rule 3.850 motion as untimely and remand for an evidentiary hearing. We caution Youngblood that if he ultimately withdraws his plea and voids the plea agreement, the State will be released from the plea agreement as well. See Smith v. State, 907 So.2d 630 (Fla. 2d DCA 2005).

Reversed and remanded.

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


text:
    Peggy S. CISKO, Appellant, v. PHOENIX MEDICAL PRODUCTS, INC., Appellee.
    No. 2D05-5640.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.
    Douglas L. Wilson of The Wilson Law Firm, Naples, for Appellant.
    Cathy S. Reiman of Roetzel & Andress, L.P.A., Naples, for Appellee.
   WHATLEY, Judge.

We reverse the order dismissing Cisko’s complaint for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e) because there was, on the face of the record, activity within the one-year period, i.e., an interrogatory served by Cisko. See Wilson v. Salamon, 923 So.2d 363 (Fla.2005).

Reversed and remanded; Cisko’s complaint reinstated.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    James Meredith CLIFTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-692.
    District Court of Appeal of Florida, Second District.
    June 14, 2006.
   PER CURIAM.

James Meredith Clifton appeals the posteonviction court’s order on his motion for posteonviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. In his motion, Clifton alleged two claims for relief. In its order, the posteon-viction court granted the relief Clifton requested in claim one of his motion but failed to address Clifton’s second claim. Therefore, we reverse and remand for the posteonviction court to reconsider Clifton’s motion. On remand, if the posteonviction court summarily denies Clifton’s second claim, it must set forth its reasoning and attach any portions of the record that conclusively refute Clifton’s claim. See Carroll v. State, 914 So.2d 1014 (Fla. 2d DCA 2005); O’Neill v. State, 861 So.2d 1234 (Fla. 2d DCA 2003).

Affirmed in part, reversed in part, and remanded for further proceedings.

STRINGER, SILBERMAN, and WALLACE, JJ„ Concur.


text:
    Jamarius POLLARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-527.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Jamarius Pollard appeals the revocation of his community control, contending that the evidence was insufficient to establish that he had willfully and substantially violated the terms of his community control. We affirm the revocation of Pollard’s community control based on the trial court’s finding that Pollard willfully and substantially violated conditions 12 and 32. However, we remand for the- trial court to strike the finding of a violation of condition 27 because there was insufficient evidence to establish a willful and substantial violation of this condition.

In April 2003, Pollard pleaded guilty to a charge of being a principal to an attempted robbery with a firearm. He was sentenced to six years of youthful offender probation. In June 2004, after the court found that Pollard had violated his probation, Pollard was resentenced to two years of youthful offender community control. In November 2004, the Department of Corrections filed an affidavit of violation of community control contending, among other things, that Pollard had violated condition 27 of his community control. Condition 27 required Pollard to complete 100 hours of community service at the rate of five hours per month during the term of his community control.

At the revocation hearing, Pollard’s probation officer testified that Pollard had failed to complete any community service hours in either September or October 2004. However, she admitted that Pollard had already completed seventy-five hours and had only twenty-five-hours left to complete during the remaining twenty-two months of his community control. Despite this, the trial court found that Pollard had willfully and substantially violated condition 27 by failing to complete his required community service hours.

In Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005), this court held that the State cannot prove a willful and substantial violation of a condition to complete, community service hours, even when the order contains a per-month rate of completion, when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate.

“[T]he omission” from a probation order “of a specified date by which [a probationer] was required to complete [a particular] task” combined with “the fact that [the probationer] was not at the end of his probationary period” results in “the State’s inability to prove a willful and substantial violation.”

Id. (quoting Oates v. State, 872 So.2d 351, 352 (Fla. 2d DCA 2004)).

In this case, Pollard’s community control order did not contain a specified date by which Pollard was to complete his community service hours, and he was not at the end of his period of community control. Pollard had more than sufficient time to complete his remaining twenty-five hours of community service during his community control period. The State presented no evidence that Pollard had refused to complete the remaining hours or was actively avoiding this requirement. Thus, the State failed to prove a willful and substantial violation of condition 27.

Despite the fact that the State failed to prove a violation of condition 27, we affirm the revocation of Pollard’s community control because it is clear from the record that the trial court would have revoked Pollard’s community control based solely on the violations of conditions 12 and 32. However, we remand for the trial court to strike the finding concerning the violation of condition 27 and enter a corrected revocation order.

Affirmed and remanded with instructions.

FULMER, C.J., and WHATLEY, J., Concur.


author: LaROSE, Judge.

text:
    Norman Lee IGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-691.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.
   LaROSE, Judge.

Norman Lee Igo appeals the partial denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order as to circuit court cases 03-18021 and 04-19531; we reverse and remand for further proceedings as to circuit court cases 04-20905 and 04-20917.

In his motion, Mr. Igo alleged that the trial court awarded him 185 days’ jail credit in cases 04-20905 and 04-20917 for time spent in county jail from October 5, 2004, to April 7, 2005. Allegedly, however, the Department of Corrections (DOC) is crediting him with only 141 days’ jail credit in case 04-20905 and 153 days’ jail credit in case 04-20917. Mr. Igo claims entitlement to additional jail credit. He also claims that the court records on their face demonstrate his entitlement to relief. See Whitt v. State, 807 So.2d 788, 788 (Fla. 2d DCA 2002) (finding that defendant presented a facially sufficient claim by alleging that the claim could be determined from the trial court records and the county jail records).

With respect to case 04-20905, the post-conviction court concluded that Mr. Igo was in county jail from November 15, 2004, to April 7, 2005, and, therefore, entitled to 144 days’ credit. Further, the postconviction court concluded that, because the judgment and sentence reflected that he only received 141 days’ jail credit in case 04-20905, Mr. Igo was entitled to an additional 3 days’ credit. Similarly, in case 04-20917, because the postconviction court concluded that Mr. Igo was in county jail from November 5, 2004, to April 7, 2005, he was entitled to 154 days’ credit. The judgment and sentence reflected that Mr. Igo received only 153 days’ jail credit in case 04-20917. Consequently, the post-conviction court granted Mr. Igo one additional day of jail credit in case 04-20917.

The postconviction court’s order refers to criminal report affidavits, judgments and sentences, and a general surety appearance bond to support its finding that Mr. Igo was in county jail from November 15, 2004, to April 7, 2005, in case 04-20905 and from November 5, 2004, to April 7, 2005, in case 04-20917. Unfortunately, the postconviction court did not attach to its order any criminal report affidavits or general surety appearance bonds for these two cases. Consequently, the documents attached to the postconviction court’s order do not support its findings. Moreover, the postconviction court failed to refute conclusively Mr. Igo’s claim that the trial court orally awarded him 185 days’ jail credit in each case.

Accordingly, we reverse with directions for the postconviction court to reconsider Mr. Igo’s claims for additional jail credit in cases 04-20905 and 04-20917. See Bailey v. State, 925 So.2d 382 (Fla. 2d DCA 2006). If the postconviction court, again, denies relief, it shall attach to its order those portions of the record that conclusively refute Mr. Igo’s claims. Id.

Affirmed in part, reversed in part, and remanded.

STRINGER and SILBERMAN, JJ., Concur.