author: LAWSON, J.

text:
    Luis PEREZ-ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1383.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.

      Ira W. Still, III, Coral Springs, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Luis Perez-Ortiz appeals his conviction and life sentence on the charge of first degree (premeditated) murder, for killing his wife. He argues that the trial court erred in denying the motion to suppress his confession, and that the State’s evidence at trial was insufficient to create a jury question on the issue of premeditation. We affirm.

Nilda Corsino was last seen by neighbors arriving at her apartment on the evening of March 31, 2004. When she did not show up for work the next day, family members contacted police, who ultimately discovered her dead body lying face-down in an inch of water in a tub inside her apartment. Corsino was fully clothed and had a bruise on her jaw, as well as readily-apparent marks around her neck. An autopsy later confirmed that Corsino died from manual strangulation with a contributing factor of immersion in scalding hot water.

Corsino’s body was discovered at around 10:00 p.m. on April 1, 2004. At the time of her death, she had been separated from the Defendant. He was residing with his mother. By the time the investigating officers determined where Defendant was residing, it was early on the morning of April 2. So, at approximately 4:00 a.m., on April 2, detectives Santos and Lee, from the Orange County Sheriffs Office, arrived at the home of Defendant’s mother to notify Defendant of the death of his wife. Upon their arrival, Santos and Lee found Defendant dressed in street clothes, with a turtle-neck shirt pulled up on his neck as high as possible. Visible above the shirt’s neckline, however, they could see fresh scratches on Defendant’s neck and face. Although the scratches were suspicious, and the detectives considered Defendant to be a suspect, they had no other evidence linking Defendant to Corsino’s death, and clearly did not have any basis to detain or arrest him.

Therefore, they asked Defendant if he would voluntarily meet them for questioning. He agreed, and drove himself to the nearby Oviedo police station. Both before and during the video-taped interview, the detectives confirmed to Defendant that he was at the station voluntarily, and could leave if he chose to do so. The interview began in a friendly tone, and the detectives’ friendly demeanor never changed. However, the detectives’ questions did become accusatory as their interrogation proceeded. Basically, they said or implied that they knew Defendant was involved in Corsino’s killing, and used various emotional pleas to secure his confession (repeatedly calling upon him to “do the right thing” in the name of truth, virtue, religion, his upbringing, and for the sake of his son).

Defendant initially denied even being at the apartment when Corsino was killed. Then, he began to sit silently as the detectives speculated about what happened on the night of Corsino’s death, and pressured him to confess (again, using only the psychological tool of moral persuasion). Shortly before admitting his guilt, Defendant asked if he could “talk to a lawyer, please?” Immediately, detective Lee told Defendant that this would “end the communication between us,” but again told him that: “You’re free to go, you don’t have to talk to us. You know, you’re not under arrest. That is your option.” Defendant responded by simply saying: “I didn’t do it. We had a bad fight, but I didn’t do it.” Shortly thereafter, Defendant again asked if he could talk to a lawyer, and Lee once again clearly asked Defendant if he wanted to leave. When Defendant didn’t indicate a desire to leave or terminate the interrogation, Lee responded with: “Can I ask you something? What’s keeping you from trusting us enough to tell us the truth tonight?” The interview continued, and the Defendant ultimately confessed to killing his wife.

Motion To Suppress Confession

Prior to trial, Defendant filed a motion to suppress his confession, claiming that the detectives violated his Fifth Amendment right to counsel, as outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by failing to discontinue the interview immediately upon his request for a lawyer. In making this argument, Defendant inaccurately represents that the Fifth Amendment requires a law enforcement officer to immediately cease any questioning of a suspect in response to a clear request for an attorney, in any setting. Contrary to Defendant’s argument, the Fifth Amendment “right to counsel” is a procedural safeguard created by Miranda to secure the Fifth Amendment’s right against compelled self-incrimination during custodial interrogations. Id. at 444, 86 S.Ct. 1602. The Miranda right-to-counsel safeguard simply does not apply outside the context of a custodial interrogation. Id.; Sapp v. State, 690 So.2d 581, 585 (Fla.1997).

We have carefully considered the factors outlined in Ramirez v. State, 739 So.2d 568, 574 (Fla.1999), and agree with the trial court’s conclusion that the Defendant was not in custody at any time during the interrogation. Most significantly, the Defendant voluntarily agreed to drive himself to the police station, and was repeatedly told that he was not under arrest and free to leave at any time. Given the totality of the circumstances, we find that a reasonable person placed in the same position could not have believed that his or her freedom of action was curtailed to a degree associated with actual arrest. Therefore, we conclude that Defendant was never in custody, see Ramirez, 739 So.2d at 573, and that the Miranda safeguards, including the right to counsel, did not apply. Sapp, 690 So.2d at 585.

Sufficiency of Circumstantial Evidence To Prove Premeditation

Defendant also argues that the trial court erred in denying his timely motion for judgment of acquittal as to the charge of first degree murder because the State’s evidence was insufficient to prove premeditation. Premeditation is a fully-formed conscious purpose to kill, which exists in the mind for a sufficient length of time to permit reflection. Johnston v. State, 863 So.2d 271, 285 (Fla.2003), cert. denied, 541 U.S. 946, 124 S.Ct. 1676, 158 L.Ed.2d 372 (2004). When there is no direct evidence of premeditation, the evidence relied upon by the state to prove premeditation must be inconsistent with any reasonable inference other than that the accused killed his or her victim pursuant to a conscious purpose, formed with sufficient time for reflection. Id.

Because of the time necessary to kill another human by manual strangulation, the circumstance of killing by strangulation alone is deemed sufficient to create a jury question on the issue of premeditation in at least a few jurisdictions. See, e.g., Hounshell v. State, 61 Md.App. 364, 486 A.2d 789, (“Whether the time required to produce death by strangulation is sufficient for the assailant to reflect upon his actions before death ensues is a matter for the jury to determine.”) cert. denied, 303 Md. 42, 491 A.2d 1197 (1985); Houck v. State, 563 P.2d 665, 668 (Okla.Crim.App.1977) (finding the fact that strangulation took several minutes to cause the victim’s death sufficient to raise an inference of premeditation); cf. State v. Sturdivan, 497 S.W.2d 139, 142 (Mo.1973) (“Premeditation may be reasonably inferred from the bare hand strangulation of defendant’s victim and the subsequent application of the towel for two or three minutes longer to make sure he was dead.”); but see State v. Bingham, 105 Wash.2d 820, 719 P.2d 109, 113 (1986) (rejecting rule that strangulation alone is sufficient to create a jury question on premeditation, reasoning that having “the opportunity to deliberate is not evidence the defendant did deliberate, which is necessary for a finding of premeditation”).

Although our Supreme Court has not expressly addressed this issue, its rulings in several cases lead to the inescapable conclusion that, in Florida, the length of time necessary to produce death by strangulation, standing alone, is not a sufficient basis to submit the issue of premeditation to a jury. See, e.g., Randall v. State, 760 So.2d 892 (Fla.2000) (finding insufficient evidence of premeditation to uphold conviction for first degree murder in manual strangulation case); Green v. State, 715 So.2d 940 (Fla.1998) (same).

Ms. Corsino, however, did not simply die from strangulation. After being strangled, but while still breathing, she was drowned in an inch of water, in her tub. The only reasonable inference to be drawn from this evidence is that Defendant, after strangling Ms. Corsino, either held her face into the water, or placed her face-down in the water while she was unconscious. Given the time and forethought that would have been required to prepare the water, or even move the victim into it, after strangling her, we find the evidence sufficient to support a conviction for first degree murder.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

      . When the interview was over, Defendant also drove himself back to his mother's house. The detectives arrested him later in the day, after securing an arrest warrant.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Joshua HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-896.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.

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

Hams was convicted, after a jury trial, of one count of trafficking in 28 grams or more of cocaine and one count of possession of cannabis with intent to sell or deliver. He appeals the trial court’s denial of his motion for judgment of acquittal as to the trafficking count. We reverse.

The evidence reflects that the Osceola County Sheriffs Office obtained a search warrant for a residence owned by Cedric Caster after receiving information that Caster was selling cocaine from that residence. Several officers participated in the execution of the search warrant. When the officers entered the residence, they found Harris sitting on a sofa and Caster sitting on a nearby loveseat. There was a brown bag (the size of a lunch bag) located on the floor between Caster and Harris. The bag was within three feet of both the sofa and the loveseat. One of the officers testified the bag was open, enabling him to look inside the bag. The bag contained 28 grams of cocaine and over 100 grams of cannabis.

After arresting Harris and Caster, the officers found 2.7 grams of cocaine and over 20 baggies of cannabis in Harris’ front pocket.

Harris did not reside at Caster’s residence. Furthermore, one of the officers testified that they had no expectation that Harris would be at Caster’s residence when they executed the search warrant.

At the close of the State’s evidence, Harris unsuccessfully moved for a judgment of acquittal on the trafficking charge. He contended there was insufficient evidence to establish he possessed the contraband found in the brown bag.

After the denial of his motion for judgment of acquittal, Harris testified that he went to Caster’s house to purchase cocaine and cannabis. He placed the cocaine and cannabis that he bought from Caster in his front pocket. Harris denied he owned or ever touched the bag of drugs found on Caster’s floor.

At the close of the evidence, Harris renewed his motion for judgment of acquittal. The trial court again denied the motion.

The purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence presented by the state. State v. Lalor, 842 So.2d 217 (Fla. 5th DCA 2003). A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. Boyd v. State, 910 So.2d 167, 180 (Fla.2005).

In the present case, the State contends there was sufficient evidence to establish Harris had actual or constructive possession of the brown bag containing 28 grams of cocaine. We disagree. We will first address the State’s constructive possession argument.

Constructive possession exists where a defendant does not have actual, physical possession of the controlled substance, but knows of its presence on or about the premises, and has the ability to exercise and maintain control over the contraband. Green v. State, 754 So.2d 168 (Fla. 5th DCA 2000). Mere proximity to contraband is not sufficient, by itself, to establish control. However, control over contraband may be inferred from the ability to exercise control over the premises where the contraband is found. State v. Reese, 774 So.2d 948 (Fla. 5th DCA 2001). Here, it was undisputed that Harris was a mere visitor to Caster’s residence. He was neither an owner nor an occupant of the premises. Accordingly, the trier of fact could not infer that Harris had the ability to control the contraband found in the brown bag, simply because it was in plain view and situated near him. J.S.M. v. State, 944 So.2d 1143 (Fla. 2d DCA 2006). See also Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975) (holding that circumstantial evidence of guilt emanating from the defendant’s proximity to illicit drugs in plain view was equally susceptible to the reasonable hypothesis that the defendant was a mere visitor and that the drugs were in the possession and control of the owner or other occupant of the premises).

In this ease, the State was obligated to establish the control element by independent proof. J.S.M., 944 So.2d at 1144; see also Wade v. State, 558 So.2d 107 (Fla. 1st DCA 1990). We conclude the State failed to produce independent proof that Harris, as opposed to Caster, controlled the contraband located in the brown bag. Furthermore, the fact that Harris was in possession of a small amount of cocaine on his person was insufficient to establish that he had dominion and control of the cocaine found in the brown bag. Allen v. State, 622 So.2d 526 (Fla. 2d DCA 1993).

The State’s alternative argument that it produced sufficient evidence to establish actual possession also fails. Actual possession means that (a) the item is in the hand of or on the person; or (b) the item is in a container in the hand of or on the person; or (c) the item is so close that it is within “ready reach” of the person and the item is under the control of the person. Finklea v. State, 920 So.2d 156 (Fla. 1st DCA 2006). There was no evidence Harris ever had the 28 grams of cocaine (or the brown bag) in his hand or on his person. Although there was evidence the 28 grams of cocaine was within Harris’ “ready reach,” the evidence was, as discussed above, insufficient to establish the control element. We therefore reverse the trafficking conviction.

It is undisputed that Harris was in possession of the cocaine found on his person. Accordingly, on remand, the trial court is directed to adjudicate Harris guilty of the lesser-included offense of possession of cocaine. See § 924.34, Fla. Stat.; Crain v. State, 894 So.2d 59, 76 (Fla.2004). Harris’ conviction for possession of cannabis with intent to sell or deliver was not appealed. We affirm that conviction and remand to the trial court for resentencing in light of our reversal of the trafficking offense.

AFFIRMED in part; REVERSED m part; and REMANDED with Directions.

TORPY and LAWSON, JJ., concur.

      . § 893.135(l)(b)l.a., Fla. Stat. (2005).

      . § 893.13(l)(a)(2), Fla. Stat. (2005).

      . Section 924.34, Florida Statutes (2005), provides:
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense, (emphasis added)


author: PER CURIAM.

text:
    Shane MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1159.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    James S. Purdy, Public Defender and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Shane Mitchell, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Shane Mitchell appeals the judgment and sentence imposed following the return of the jury verdict finding him guilty of four counts of the lesser included offense of battery, one count of the lesser included offense of felony battery, and one count of false imprisonment. He argues that: (1) the trial court erred in instructing the jury on the four lesser included battery offenses; (2) the trial court erred in assessing restitution for the speculative losses of unearned and undeterminable tips and bonuses; and (3) the trial court erred in denying, in part, his motion to correct a sentencing error. We affirm as to the first two issues.

Regarding the third issue, we agree with Mitchell that the trial court erred in failing to delete Special Condition F of Mitchell’s probation, which delegated to the probation officer the authority to order alcohol and drug testing in order for the probation officer to determine whether any substance abuse treatment was necessary. We also agree that because section 939.185(l)(a), Florida Statutes, was not in effect at the time Mitchell committed his offenses, the amount of $65.00, which was imposed as an additional court facility fee, must be stricken. See Griffin v. State, 946 So.2d 610 (Fla. 2d DCA 2007). We therefore strike Special Condition F and the $65.00 fee. In all other respects, we affirm the judgment of conviction and sentence imposed on Mitchell.

AFFIRMED in part; REVERSED in part.

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


text:
    Ricardo BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3288.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We agree that the trial court improperly sustained certain hearsay objections. However, such errors were harmless because the witness was later able to testify to those matters which had initially been wrongfully excluded. Wallace v. State, 766 So.2d 364, 371-72 (Fla. 3d DCA 2000); see also Turner v. State, 809 So.2d 59, 62 (Fla. 5th DCA 2002).

AFFIRMED.

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


text:
    Roland WILLIAMS and Dorothy Williams, Appellants, v. PALM COAST BLUE WATER INTERNATIONAL CORPORATION, Appellee.
    No. 5D06-1266.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    Dennis K. Bayer and Matthew C. Ma-guire, Flagler Beach, for Appellant.
    Richard E. Berman, Richard A. Sachs and Bret L. Lusskin, Jr., of Berman, Kean & Riguera, P.A., Fort Lauderdale, for Ap-pellee.
   PER CURIAM.

We affirm the trial court’s dismissal with prejudice of Counts II and III of appellants’ second amended complaint. However, for the reasons set forth below, we reverse the trial court’s dismissal with prejudice of Count I.

Count I would have adequately alleged a cause of action but for appellants’ careless incorporation by reference of all of the 23 paragraphs immediately preceding this count. (It was improper to incorporate into Count I those paragraphs referencing appellee’s alleged consent to an assignment of the purchase contract. Those paragraphs related to Count II.)

Furthermore, appellants were not required to attach a “written notice of closing” to the complaint because it was not a document “upon which action may be brought.” Fla. R. Civ. P. 1.130(a).

We have previously held that a second amended complaint should not be dismissed with prejudice where a cause of action can be gleaned from the pleading and the only remaining defect is an improper incorporation by reference of prior paragraphs. Gerentine v. Coastal Sec. Systems, 529 So.2d 1191, 1194 (Fla. 5th DCA 1988).

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY, LAWSON and EVANDER, JJ., concur.


author: MONACO, J.

text:
    Charles HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1749.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Charles Hayes appeals from the judgment and sentence rendered by the trial court after his conviction of sexual battery by a person over 18 upon a person less than 12 years of age in violation of section 794.011(2), Florida Statutes (2006), and lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2006). He raises as the sole issue on this appeal whether the trial court erred in denying his motion to strike the venire. We affirm on two bases.

First, we find no error on the merits with respect to the trial court’s decision not to strike the entire venire. A venire member’s expression of an opinion stated during a voir dire examination, without more, is ordinarily not considered sufficient to taint the remainder of the panel. See Johnson v. State, 903 So.2d 888, 897 (Fla.), cert. denied, — U.S.—, 126 S.Ct. 802, 163 L.Ed.2d 632 (2005); Brower v. State, 727 So.2d 1026, 1027 (Fla. 4th DCA), review denied, 744 So.2d 452 (Fla.1999). With the exception of one ve-nire person who did not sit on the jury, the remainder of the venire said that the questioned comments of the venire person would not affect their perception of Mr. Hayes.

Second, we conclude that Mr. Hayes failed to preserve this issue for review. Although Mr. Hayes did not formally accept the jury panel, he failed to renew his objection or motion to strike the panel prior to the jury being sworn in. We held in Martin v. State, 816 So.2d 187, 188 (Fla. 5th DCA 2002), that jury selection issues are “deemed to be waived after acceptance of the jury, unless the objection is renewed, or the jury is accepted subject to an earlier objection.” See also Joiner v. State, 618 So.2d 174, 176 (Fla.1993).

Here, after the jury was selected the court recessed for the night. When asked on the following morning prior to the jury being sworn whether there was anything else that either the State or the defense wished to say, the defense responded, “No.” The jury was then sworn. The case law teaches that even if a litigant makes no statement affirmatively accepting a jury, the requirement remains that objections to the panel must be renewed. See Lavin v. State, 754 So.2d 784, 786 (Fla. 3d DCA 2000); Milstein v. Mutual Sec. Life Ins. Co., 705 So.2d 639, 641 (Fla. 3d DCA 1998). In our judgment the issue was waived when the objection was not renewed prior to the swearing of the jury.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.


text:
    Eric Cornelius KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3263.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Both Knight and the State agree that the two written orders of revocation appear to contain a scriveners’ error. Specifically, the trial court verbally pronounced that Knight had violated Conditions (1) and (8) of his probation, but had not violated Condition (3). However, the written orders of revocation provide that Knight had violated Conditions (1), (3) and (8). It is well-established that, where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. Brown v. State, 786 So.2d 1257 (Fla. 5th DCA 2001).

We remand this cause solely for the purpose of enabling the trial court to enter written orders of revocation, nunc pro tunc, in accordance with its oral pronouncement. Knight does not need to be present. Mosco v. State, 640 So.2d 1219 (Fla. 5th DCA 1994).

REMANDED for Correction of Scriveners’ Errors.

ORFINGER, MONACO and EYANDER, JJ., concur.


text:
    Terence Lee JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4475.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    Terence L. Jackson, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Terence Lee Jackson appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to allow credit for county jail time. Because the trial judge did not attach portions of the record supporting his conclusion that Jackson was not entitled to relief, we must reverse. See, e.g., Frederick v. State, 899 So.2d 1281 (Fla. 5th DCA 2005). Consequently, we remand this case to the trial court for attachment of portions of the record that conclusively refute Jackson’s claim, or to award the proper credit, if warranted. Id.

REVERSED AND REMANDED.

GRIFFIN, LAWSON and EYANDER, JJ., concur.

      . The State properly conceded error.


text:
    Damon HIGHTOWER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-401.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2007.
    Damon Hightower, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The instant appeal is dismissed for lack of jurisdiction. This dismissal is without prejudice to Hightower filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

DISMISSED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Johnny Lee JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2901.
    District Court of Appeal of Florida, Second District.
    April 27, 2007.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Johnny Jacobs appeals the reclassification of his felony conviction for aggravated battery with a firearm. Under section 784.045, Florida Statutes (2003), the offense is a second-degree felony punishable by a prison term not to exceed fifteen years. However, in this case the trial court reclassified the felony to one of the first-degree pursuant to section 775.087(1), Florida Statutes (2003), and sentenced Jacobs to thirty years. The reclassification of the felony was error and must be reversed. Jacobs was also convicted of shooting into an occupied vehicle and sentenced to fifteen years in prison. We affirm that conviction and sentence without discussion.

Section 784.045 provides that aggravated battery is a second-degree felony and is committed by (1) causing great bodily harm or (2) using a deadly weapon. Section 775.087(1) requires the reclassification of felonies to the next higher degree when a weapon or firearm is used in committing the felony, “except a felony in which the use of a weapon or firearm is an essential element.” Subsection (2)(a)(3) provides that if the conviction is for certain listed crimes, including aggravated battery

regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” ... and, as a result of the discharge, death or great bodily harm was inflicted ... the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life.

The proof at trial showed that Jacobs fired into an automobile driven by the victim and that the bullet struck and wounded the victim.

The trial court instructed the jury that Jacobs “has been accused of ... aggravated battery with a firearm.” In the verdict form, the jury found that Jacobs was “guilty of aggravated battery with a firearm,” that he “actually possessed a firearm during the commission of the aggravated battery,” that he “discharged a firearm during the commission of the aggravated battery,” and that he thereby “caused great bodily harm.” The trial court reclassified the second-degree felony to a first-degree felony pursuant to section 775.087(1) and sentenced Jacobs to thirty years in prison. The trial court also imposed a minimum term of twenty-five years pursuant to section 775.087(2)(a)(3) because the jury specially found that “during the commission of the felony,” Jacobs had discharged the firearm and thereby caused “great bodily harm.”

The trial court erred by reclassifying the second-degree felony of aggravated battery to a first-degree felony. Aggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime. Lareau v. State, 573 So.2d 813, 815 (Fla.1991); Dozier v. State, 677 So.2d 1352, 1353 (Fla. 2d DCA 1996). However, because the jury made special findings that Jacobs had discharged a firearm during the commission of the aggravated battery and caused great bodily harm, we hold that the trial court properly imposed a minimum sentence pursuant to section 775.087(2)(a)(3). Even though the aggravated battery conviction must properly be classified as a second-degree felony, subsection (2)(a)(3) directs that “the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” See Inmon v. State, 932 So.2d 518, 520 (Fla. 4th DCA 2006) (holding that even if the minimum mandatory exceeds the statutory maximum, the court must impose the minimum mandatory).

Accordingly we reverse in part, affirm in part, and remand for proceedings consistent with this opinion.

STRINGER and CANADY, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Kimberly M. HALL, Appellant, v. Roberto R. MAAL, Appellee.
    No. 1D07-0556.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    John L. Myrick, Pensacola, for Appellant.
    Stephen T. Holman, Pensacola, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 14, 2007, the Court has determined that the order on appeal does not determine the right to immediate monetary relief or child custody in a family law matter. Therefore the order is not reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. The appellant’s Motion Requesting the Award of Appellate Attorney’s Fees and Taxable Costs, filed on February 2, 2007, and the appellee’s Motion Requesting the Award of Appellate Attorney’s Fees and Taxable Costs, filed on February 12, 2007, are denied.

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    MOTHER, K.P. of A. F., S. F., H. F., M. F., M. F., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D06-4573.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Patricia L. Parker of Parker & Du-Fresne, P.A., Jacksonville, for Appellant.
    Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, and Susan W. Fox of Fox & Loquasto, P.A., Tampa; Debbie Jones Stafford and David F. Elder of Department of Children & Familes, Jacksonville; and Mercedes Scopetta, Guardian ad Litem Program, Orlando, for Appellee.
   PER CURIAM.

The appellant in this child dependency action challenges an order by which the goal of her case plan was amended from reunification to adoption with respect to five of her nine dependent children. Contrary to the requirements of Florida Rule of Juvenile Procedure S.415(f)(10), as then in effect, the trial court did not include in its order, sufficient findings concerning whether the appellant failed to substantially comply with her case plan to the degree that further reunification efforts with these children would be without merit. Consequently, we are unable to conduct an intelligent review on appeal. The challenged order is accordingly REVERSED and this case is REMANDED for further proceedings.

ALLEN, WEBSTER and ROBERTS, JJ., concur.


text:
    Bernard WILLIAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-4666.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Bernard Williams, pro se, Petitioner.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Bernard Williams seeks certiorari review of the denial of a petition for writ of mandamus which challenged the decision of the Florida Parole Commission, respondent, revoking his conditional release supervision. Because (i) the evidence of a willful violation on the part of the petitioner is tenuous at best, (ii) the hearing officer recommended reinstatement, and (iii) neither the parole examiner’s report nor the Parole Commission’s order contain a finding the petitioner’s violation of his conditional release constituted a willful violation of a substantial condition of the conditional release order, under this court’s recent decisions in Williams v. Florida Parole Commission, 949 So.2d 1180 (Fla. 1st DCA 2006) and Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006), we grant the petition, quash the circuit court’s order, and remand with instructions that the trial court quash the order of the Parole Commission and remand for further proceedings consistent with these opinions. Further, the circuit court’s order imposing a lien is quashed. Crosby v. Fla. Parole Comm’n, 949 So.2d 1181 (Fla. 1st DCA 2007).

REMANDED for further proceedings consistent with this opinion.

BARFIELD, WOLF, AND VAN NORTWICK, JJ., concur.


text:
    Luke Anthony MONASMITH, Former Husband, Appellant, v. Michelle Lynn MONASMITH, Former Wife, Appellee.
    No. 1D06-6409.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    An appeal from the Circuit Court for Clay County. McCarthy Crenshaw, Jr., Judge.
    Ned I. Price and Beth M. Terry of the Law Offices of Ned I. Price, P.A., Jacksonville, for Appellant.

      Todd W. Henry, Orange Park, for Ap-pellee.
   PER CURIAM.

Appellant challenges the trial court’s order allowing Appellee to temporarily relocate out-of-state with the minor children during the dissolution proceedings. We affirm.

We find that Appellant’s argument regarding section 61.13001, Florida Statutes (2006), was not preserved for our review. See Graves v. State, 548 So.2d 801 (Fla. 1st DCA 1989)(holding that appellate review is limited to the specific grounds raised below); Parlier v. Eagle-Picher Indus., Inc., 622 So.2d 479, 481 (Fla. 5th DCA 1993)(holding that as a general rule of appellate procedure, based on practical necessity and fairness to the opposing party and the trial judge, issues that are not timely raised will not be considered on appeal). Appellant made no mention of section 61.13001, Florida Statutes (2006), or its procedural requirements during any proceeding below, or in his motion to stay the trial court’s order in this court. Accordingly, we decline to address the merits of Appellant’s claim on this ground, and affirm the trial court’s order.

Appellant’s request to review the factual basis for the trial court’s decision was properly preserved. We affirm without comment.

AFFIRMED.

WOLF, DAVIS and THOMAS, JJ., concur.


text:
    Robert T. HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3717.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Nancy A. Daniels, Public Defender and John B. Kelly, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Robert Hudson, appeals an order revoking his probation. We reverse the trial court’s finding that the appellant committed multiple violations of conditions (5) and (8) of the order of probation, based upon the state’s concession of error and the evidence in the record showing that Hudson was in New Jersey and did not have constructive possession of the mobile home where the contraband was seized.

The trial court also erroneously found two violations that it had previously dismissed for lack of evidence, regarding a positive urinalysis on September 9, 2005, and we direct the court to strike those violations.

We affirm the court’s determination that Hudson violated condition (1) by failing to timely report to his probation officer, and (10) by failing to comply with the officer’s instructions, because Hudson left the state without following proper procedure, of which he was fully informed. We remand, however, to permit the trial court to consider whether to revoke probation solely upon the violations connected with the move, and whether to impose the same sentence. See Taylor v. State, 734 So.2d 1171 (Fla. 1st DCA 1999).

REVERSED and REMANDED.

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


text:
    Neftali CAMACHO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-519.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2007.
    Neftalí Camacho, Cross City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Sanders v. State, 621 So.2d 723 (Fla. 5th DCA), review denied, 629 So.2d 135 (1993).

THOMPSON, MONACO and LAWSON, JJ., concur.


text:
    Robert T. WHITE, Petitioner, v. Robert B. LAMBERT, et al., Respondents.
    No. 1D07-1630.
    District Court of Appeal of Florida, First District.
    May 2, 2007.
    Daniel Stewart of Dan Stewart, P.A., Pace, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Malone v. Costin, 410 So.2d 569 (Fla. 1st DCA 1982).

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


author: DAVIS, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Greg WILEY, Appellee/Cross-Appellant.
    No. 2D05-3403.
    District Court of Appeal of Florida, Second District.
    May 2, 2007.

      Sidney M. Crawford of Sidney M. Crawford, P.A., Lakeland, for Appellant/Cross-Appellee.
    Nancy A. Lauten and George A. Vaka of Vaka, Larson <& Johnson, P.L., Tampa, for Appellee/Cross-Appellant.
   DAVIS, Judge.

Allstate Insurance Company (“Allstate”) challenges the final judgment entered in favor of Greg Wiley following a jury trial on Wiley’s uninsured motorist claim and the trial court’s denial of Allstate’s motion for a new trial. Wiley cross-appeals the final judgment, alleging that the trial court erred by ordering remittitur on the jury’s award. We affirm the trial court’s denial of Allstate’s motion for a new trial but reverse the final judgment because the trial court improperly reduced the jury’s verdict.

Wiley was injured in an automobile accident and brought suit against the tortfea-sor and his uninsured motorist carrier, Allstate. After obtaining a default judgment against the tortfeasor, who could not be located, Wiley proceeded to trial against Allstate. Allstate stipulated to the negligence of the tortfeasor, and the parties proceeded to trial to determine damages. The jury awarded Wiley $91,000 in past and future medical expenses.

Allstate then moved for a new trial, claiming that upon posttrial review, it discovered that two jurors had failed to properly respond to the juror questionnaires that they had completed prior to trial and that Allstate had relied upon at trial. Specifically, Allstate alleged that one juror denied having previously been a party to a lawsuit when, in fact, she had been a defendant in a small claims action and had also gone through a divorce. Another juror had identified himself as a financial planner but had failed to disclose that he had been sued recently in small claims court over a credit card debt. Although he had reported on his questionnaire that he had been a party to a claims court action in another county some years earlier, he had not reported the more recent, local claim.

Allstate also moved for remittitur, arguing that $65,000 was the maximum the jury could award given the closing argument of Wiley’s attorney, who had calculated his client’s past and future medical damages in the range of $55,000 to $65,000. The trial court granted the motion for remittitur and reduced the award by $25,000 but denied the motion for new trial. The final judgment entered pursuant to these rulings is the subject of this appeal.

We review the denial of a motion for new trial for an abuse of discretion. See Glover Distrib. Co. v. F.T.D.K., Inc., 816 So.2d 1207, 1212 (Fla. 5th DCA 2002) (“The standard of review of a ruling on a motion to grant a new trial based on a juror’s non-disclosure during voir dire of prior litigation history is abuse of discretion.”). Our review of this record does not disclose such an abuse. One juror’s prior legal experience occurred almost seventeen years before the instant case. The other juror did disclose a prior claims court involvement, although he did not disclose the more recent lawsuit. Furthermore, although Allstate claims that this juror’s credibility as a financial planner was compromised by his apparent failure to timely pay his credit card obligations, we are not persuaded that the trial judge was unreasonable in denying Allstate’s motion for new trial on this basis. “If reasonable people could differ as to the propriety of the court’s ruling, then the abuse of discretion standard has not been met.” Vanderbilt Inn on the Gulf v. Pfenninger, 834 So.2d 202, 203 (Fla. 2d DCA 2002). Accordingly, we affirm the trial court’s denial of the motion for new trial.

However, the trial court did abuse its discretion in reducing the jury’s award of damages. See Winn-Dixie Stores, Inc. v. Robinson, 472 So.2d 722, 725 (Fla.1985) (stating that upon review of an order of remittitur, the appropriate standard is whether there has been a clear abuse of discretion). The undisputed testimony at trial was that Wiley had incurred approximately $11,000 in prior medical expenses, leaving the remaining $80,000 in medical expenses apparently attributable to future medical expenses. According to the evidence, Wiley had a life expectancy of about forty years; an expert witness testified that Wiley’s future chiropractic care would cost between $1500 and $2000 per year. Based on this testimony, the jury’s apparent award of $80,000 in future medical expenses was supported by the record.

Contrary to Allstate’s argument, the jury was not limited by Wiley’s attorney’s closing argument in determining the amount of the damage award. See Rudy’s Glass Constr. Co. v. Robins, 427 So.2d 1051, 1053 (Fla. 3d DCA 1983) (“Furthermore, a jury may properly award damages equal to or in excess of those requested by counsel in closing argument.”). Accordingly, we conclude that the trial court’s order of remittitur was an abuse of discretion and that the final judgment must be reversed. On remand, the trial court is directed to reinstate the jury’s original award of damages.

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

WHATLEY and VILLANTI, JJ., Concur.


text:
    Jason GERRISH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4280.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Jeremy J. Kroll of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jason Gerrish (Defendant) appeals the denial of his rule 3.850 motion, after an evidentiary hearing on two grounds and the summary denial of the seven other grounds. We reverse solely as to ground seven, which was summarily denied, and otherwise affirm, certifying conflict as to one of the other grounds.

Defendant entered a substantial assistance agreement and open guilty plea with respect to three different cases. In one of them, he was charged with both trafficking in MDMA and conspiracy to traffic in the same amount of MDMA. In ground one of the motion, he claimed he entered his plea involuntarily because he was relying on misadvice by the state, uncorrected by defense counsel, that he faced a six-year mandatory minimum if convicted, three years for the trafficking and three years for the conspiracy, which he erroneously was told could be run consecutively. He claimed he could not constitutionally receive consecutive minimum mandatory terms, citing, e.g., Johnson v. State, 695 So.2d 861 (Fla. 2d DCA 1997).

The state argued that there was no deficiency because in fact the mandatory minimums could have been stacked, as the record showed the conspiracy and the trafficking occurred at different times. Brothers v. State, 577 So.2d 701 (Fla. 4th DCA) (holding that the trial court permissibly stacked defendant’s consecutive minimum mandatory sentences because he arranged the drug transactions at times different from when he executed them), dismissed, 582 So.2d 622 (Fla.1991). In its order summarily denying this ground, the trial court found that even though the conspiracy and trafficking occurred on the same date, stacking of the minimum mandato-ries was permissible because the undisputed facts showed that they took place at a different time and place citing Brothers and Boom v. State, 538 So.2d 476 (Fla. 2d DCA 1989) (rejecting challenge to stacking of minimum mandatory sentences on the ground that defendant’s participation in the conspiracy and trafficking constituted one uninterrupted transaction, where the offenses were sufficiently separate in time and place to warrant the imposition of separate sentences).

We agree with Defendant that nothing in the record showed that any conspiring by Defendant took place at any time or place other than when and where the trafficking transaction occurred. The probable cause affidavit on which the state relied did not allege Defendant did anything other than drive a car, with another co-defendant as passenger, to the place where other co-defendants had arranged for the transaction to occur, and sell the drugs to the officer. Theoretically, he could have driven there at the co-defendant’s direction, without conspiring to conduct the transaction until he arrived at the destination. However, we affirm the summary denial of this ground based on Kelly v. State, 924 So.2d 69 (Fla. 4th DCA) (holding that defendant did not show he had been denied effective assistance of counsel based on advice that court could stack mandatory minimum sentences for crimes of conspiracy to traffic cocaine and actual trafficking of same cocaine, as trial court could have ordered consecutive mandatory minimum sentences for his crimes), rev. granted, 937 So.2d 122 (Fla.2006). As in Kelly, we certify conflict with Johnson, Frazier v. State, 630 So.2d 1237 (Fla. 2d DCA 1994), rev. denied, 639 So.2d 978 (Fla.1994), and Vickery v. State, 515 So.2d 396 (Fla. 1st DCA 1987).

We reverse the trial court’s summary denial of Defendant’s seventh ground for relief, in which he claimed ineffective assistance of counsel at the sentencing hearing in failing to investigate his lack of prior felony convictions to counter the erroneous prior felony information, which was provided by the state and included on his scoresheet. State v. Anderson, 905 So.2d 111 (Fla.2005); Graham v. State, 950 So.2d 526 (Fla. 4th DCA 2007); Frazier v. State, 912 So.2d 54 (Fla. 4th DCA 2005), receded from on other grounds by Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006). We reject the state’s argument on appeal that the sentencing transcript conclusively demonstrates that the trial court would have imposed the same sentence anyway, and remand for the attachment of portions of the record, if any exist, which do conclusively so demonstrate, or for Defendant to be resentenced with a corrected score-sheet.

In all other respects, we affirm without discussion.

Affirmed in part, Reversed in part, and Remanded.

SHAHOOD, GROSS and TAYLOR, JJ., concur.


author: WELLS, Judge.

text:
    KEY LARGO WATERSPORTS, INC., a Florida Corporation, Appellant, v. WHITEHURST FAMILY PARTNERSHIP, Appellee.
    No. 3D07-220.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    John A. Jabro (Tavernier), for appellant.
    Hershoff, Lupino Yagel, and Russell A. Yagel (Tavernier), for appellee.
    Before WELLS, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Tenant, Key Largo Watersports, Inc. appeals an Order of Default for Immediate Possession entered in favor of landlord, Whitehurst Family Partnership. We agree with the Second District’s analysis in 214 Main Street Corp. v. Tanksley, 947 So.2d 490 (Fla. 2d DCA 2006) rev. denied No. SC07-272, 956 So.2d 457 (Fla. Apr. 17, 2007), and conclude that section 83.232(5) of the Florida Statutes governs the instant circumstances and mandates affirmance. Additionally, we find that no good cause was demonstrated to support any other result.

Affirmed.


text:
    Robert Lee ROWLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2622.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We conclude that the preserved issues raised in this appeal are controlled by this court’s prior decisions in State v. Ducharme, 892 So.2d 1133 (Fla. 5th DCA 2004), and Moore v. State, 909 So.2d 500 (Fla. 5th DCA 2005), and, accordingly, we affirm.

AFFIRMED.

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Jimmy Eugene COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1841.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Cochran contends the trial court erred by conducting his trial without holding a competency hearing after having invoked the procedure for determining competency under Florida Rule of Criminal Procedure 3.210. The State properly concedes error. Cochran v. State, 925 So.2d 370 (Fla. 5th DCA 2006). We vacate Cochran’s convictions and sentence. We remand for a competency determination and retrial if Cochran is found competent to proceed. Tingle v. State, 536 So.2d 202 (Fla.1988).

REVERSED and REMANDED.

ORFINGER, MONACO and EVANDER, JJ., concur.


author: SAWAYA, J.

text:
    Roger E. SONNENFELD, Appellant, v. Tina SONNENFELD, Appellee.
    Nos. 5D05-3558, 5D05-4162.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    Joan Stefanec Briggs of Adams, Briggs and Briggs, Daytona Beach, for Appellant.
    Horace Smith, Jr. of Horace Smith, Jr., P.A.; Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane and Brock, P.A., Daytona Beach, for Appellee.
   SAWAYA, J.

We reverse that part of the final judgment awarding attorney’s fees to the former wife in this dissolution of marriage proceeding. We do so because it is clear from the record that “[t]he trial court abused its discretion in this regard after making an equal distribution of marital assets and equalizing incomes through the alimony award.” Naugle v. Naugle, 632 So.2d 1146, 1147 (Fla. 5th DCA 1994). Otherwise, the Final Judgment of Dissolution of Marriage is affirmed.

AFFIRMED in part; REVERSED in part.

TORPY, J. and MUNYON, L.T., Associate Judge, concur.


author: PALMER, J.

text:
    B.J.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1976.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PALMER, J.

The Supreme Court quashed our earlier decision reported at B.J.H. v. State, 910 So.2d 945 (Fla. 5th DCA 2005), and remanded the matter to our court for reconsideration under V.K.E. v. State, 934 So.2d 1276 (Fla.2006). See B.J.H. v. State, 950 So.2d 399, 32 Fla. L. Weekly S87 (Fla. Feb. 08, 2007). Based upon the Supreme Court’s holding in V.K.E., we conclude that the trial court erred in ordering B.J.H. to pay costs as set forth in sections 938.08 and 938.085 of the Florida Statutes (2004). As such, we strike those portions of the disposition orders that impose costs of $201.00 and $151.00 pursuant to sections 938.08 and 938.085 of the Florida Statutes (2004). In all other respects, the disposition orders are affirmed.

AFFIRMED. COSTS STRICKEN.

ORFINGER and MONACO, JJ., concur.


text:
    S.J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1648.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall and Kristen L. Davenport, Assistant Attorney Generals, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PALMER, J.

The Supreme Court quashed our earlier decision reported at S.J.H. v. State, 909 So.2d 411 (Fla. 5th DCA 2005), and remanded the matter to our court for reconsideration under V.K.E. v. State, 934 So.2d 1276 (Fla.2006). See S.J.H. v. State, 950 So.2d 396, 32 Fla. L. Weekly S84 (Fla. Feb. 08, 2007). Based upon the Supreme Court’s holding in V.K.E., we conclude that the trial court erred in ordering S.J.H. to pay costs as set forth in sections 938.08 and 938.085 of the Florida Statutes (2004). As such, we strike those portions of the disposition orders that impose costs of $201.00 and $151.00 pursuant to sections 938.08 and 938.085 of the Florida Statutes (2004). In all other respects, the disposition orders are affirmed.

AFFIRMED. COSTS STRICKEN.

GRIFFIN and EYANDER, JJ., concur.


text:
    T.J.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-794.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PALMER, J.

The Supreme Court quashed our earlier decision reported at T.J.M. v. State, 907 So.2d 618 (Fla. 5th DCA 2005), and remanded the matter to our court for reconsideration under V.K.E. v. State, 934 So.2d 1276 (Fla.2006). See T.J.M. v. State, 950 So.2d 405 (Fla.2007). Based upon the Supreme Court’s holding in V.KE., we conclude that the trial court erred in ordering T.J.M. to pay costs as set forth in sections 938.08 and 938.085 of the Florida Statutes (2005). As such, we strike those portions of the disposition orders that impose costs of $201.00 and $151.00 pursuant to sections 938.08 and 938.085 of the Florida Statutes (2005). In all other respects, the disposition orders are affirmed.

AFFIRMED. COSTS STRICKEN.

GRIFFIN and EYANDER, JJ., concur.


text:
    B.W.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1974.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PALMER, J.

The Supreme Court quashed our earlier decision reported at B.W.H, v. State, 904 So.2d 659 (Fla. 5th DCA 2005), and remanded the matter to our court for reconsideration under V.K.E. v. State, 934 So.2d 1276 (Fla.2006). See B.W.H. v. State, 950 So.2d 403 (Fla.2007). Based upon the Supreme Court’s holding in V.K.E., we conclude that the trial court erred in ordering B.W.H. to pay costs as set forth in sections 938.08 and 938.085 of the Florida Statutes (2005). As such, we strike those portions of the disposition orders that impose costs of $201.00 and $151.00 pursuant to sections 938.08 and 938.085 of the Florida Statutes (2005). In all other respects, the disposition orders are affirmed.

AFFIRMED. COSTS STRICKEN.

GRIFFIN and EVANDER, JJ., concur.


text:
    D.J., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5235.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency appeal, the appellant challenges an order committing him to a high-risk residential placement. We agree with the appellant that the trial court erred in sentencing him to a more restrictive level of commitment than the minimum-risk non-residential program recommended by the Department of Juvenile Justice (Department). The trial court failed to reference the restrictiveness level vis-a-vis the needs of the appellant or explain why it came to a different conclusion than that of the Department. See A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999).

REVERSED and REMANDED.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Ronald James MICHAEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5205.
    District Court of Appeal of Florida, First District.
    May 4, 2007.

      Ronald James Michael, pro se, Petitioner.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Ronald James Michael is hereby afforded a belated appeal from judgment and sentence in Alachua County case numbers 2004-CF-233A and 2004-CF-1398A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). The trial court shall appoint counsel to represent petitioner in the appeal if he qualifies for such an appointment.

WOLF, DAVIS, and THOMAS, JJ„ concur.


text:
    Jeffrey COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4711.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Jeffrey Collins, pro se, Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his “Motion to Allow Jail Time Credit” filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute the appellant’s claim, we reverse.

Appellant stated a facially sufficient claim for jail time credit under rule 3.800 where he provides the dates for which he is seeking credit, provides the date of his sentence, and alleges that his booking records, arrest report, judgment and sentence would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). However, the trial court summarily denied the appellant’s motion without providing any record attachments refuting his claim.

We therefore reverse the trial court’s summary denial of the appellant’s motion for jail time credit and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to award jail time credit as the record dictates.

REVERSED AND REMANDED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., Concur.


text:
    Jimmy TUGGERSON, Petitioner, v. J. WITT, Warden, Mayo Correctional Institution and James R. McDonough, Secretary, Florida Department of Corrections, Respondents.
    No. 1D06-1842.
    District Court of Appeal of Florida, First District.
    May 4, 2007.

      .Timmy Tuggerson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The State concedes the lien for circuit court costs and fees placed on Jimmy Tug-gerson’s inmate account should be removed, and it is so ordered. The petition for writ of certiorari is otherwise denied.

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


text:
    D’Andre COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3811.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We find that the trial court erroneously instructed the jury on the forcible felony exception to self-defense contrary to this court’s opinion in Williams v. State, 937 So.2d 771 (Fla. 1st DCA 2006). We, therefore, reverse appellant’s convictions and remand for a new trial.

WOLF, DAVIS, and THOMAS, JJ., concur.


author: CANADY, Judge.

text:
    Daniel TRUELOVE, John Truelove, and Norman Truelove, d/b/a Truelove Farms, and Randy L. Vester, Appellants, v. Stephen BLOUNT and Phyllis Blount, husband and wife, Appellees.
    No. 2D05-5611.
    District Court of Appeal of Florida, Second District.
    May 9, 2007.

      Susan S. Oosting and Michael Fox Orr of Marshall, Dennehey, Warner, Coleman & Goggin, Jacksonville, for Appellants.
    Lon Worth Crow IV of Lon Worth Crow IV, Sebring, for Appellees.
   CANADY, Judge.

The defendants in a personal injury action, Daniel Truelove, John Truelove, and Norman Truelove — all doing business as Truelove Farms — and Randy L. Vester, appeal a judgment based on a jury verdict and award of damages entered in favor of the plaintiffs, Stephen and Phyllis Blount. We affirm the award of damages relating to Mr. Blount’s front-end loader -without comment. We reverse the jury’s award of future damages and remand for further proceedings.

I. Background,

Stephen Blount was driving a truck towing a front-end loader when he was involved in an accident with another truck belonging to Truelove Farms and driven by Mr. Vester, an employee of Truelove Farms. As a result of the accident, Mr. Blount suffered debilitating physical injury to his neck and upper back and sought treatment from a chiropractor, an orthopedic surgeon, and a neurologist. Mr. Blount’s front-end loader, which he used for his tree business, was damaged as a result of the accident.

The Blounts filed a personal injury action against the appellants based on negligence, seeking damages for bodily injury and property damage. The case proceeded to trial, and the jury found that Mr. Vester was 100% negligent and that his negligence caused Mr. Blount’s losses and injuries. The jury awarded damages to the Blounts in the amount of $407,873. That amount included $220,000 for “the amount of any future damages for medical expenses and lost earning ability to be sustained in future years.” The jury found that nineteen years was “the number of years over which those future damages are intended to provide compensation.” The verdict also included $70,000 for damages to the front-end loader.

The appellants filed a motion for remitti-tur pursuant to section 768.043, Florida Statutes (2003), asking the trial court “for a remittitur of the award for future medical expenses and future lost earnings to zero and to remit the award for cost of repair to the [ljoader to zero.”

The trial court granted the motion for remittitur as to the damage to the front-end loader, finding that “[t]he total loss suffered by the plaintiff for the loader and its repair is $35,000.00.” The trial court denied the motion as to all other awards, finding that “[tjhere is sufficient evidence in the record to support all other awards made by the jury.”

II. Argument on Appeal

The appellants argue that the trial court erred in denying their motion for remitti-tur as to the $220,000 in future damages (for both medical expenses and lost future earnings) awarded by the jury. The appellants assert that the evidence did not support the award. The appellants contend (1) that Mr. Blount’s chiropractor, Dr. Waldron, testified that Mr. Blount could perform hard labor, (2) that Mrs. Blount testified that her husband was working as hard as he had before the accident, and (3) that the Blounts’ income tax returns showed that the Blounts’ income and profit improved substantially after the accident.

The appellants aver that because the evidence does not indicate that Mr. Blount has lost future earning ability, the entire $220,000 must be supported by evidence of future medical expenses. The appellants claim that the evidence only supports an award for future medical treatment of $9690. The appellants base that amount on six chiropractic visits a year at $85 per visit, equaling $510 per year for nineteen years.

The Blounts claim that there was sufficient evidence before the jury to support the finding that Mr. Blount had a diminished ability to earn money in the future. The Blounts assert the jury could have determined, based on Mr. Blount’s 2001 tax return, that his diminished earning capacity was $151,905 ($7995 cost of hired labor per year for nineteen years). The Blounts also contend that the jury could have awarded $45,030 for future medical treatment. This amount was based on Mr. Blount’s being treated six times a year at $395 per treatment for nineteen years. The Blounts claim that the trial court did not abuse its discretion in denying the appellants’ motion for remittitur on these damages.

III. Analysis

When a jury award of damages is clearly excessive or inadequate in actions arising out of the operation of motor vehicles, the trial court shall, upon proper motion, order a remittitur or additur of the jury’s award. § 768.043(1). In considering whether the award is clearly excessive or inadequate, the trial court shall consider:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.043(2)(a)-(e). “A trial court’s ruling on a motion for remittitur is reviewed under an abuse of discretion standard.” McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003). “A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial.” Id.

Here, the trial court awarded $220,000 in future damages, including “the amount of any future damages for medical expenses and lost earning ability to be sustained in the future.” “Given that the verdict form combines future medical expenses with loss of future earning capacity, it is impossible to tell what portion of this award was attributable to each item of future damages.” Eagle Atl. Corp. v. Maglio, 704 So.2d 1104, 1105 (Fla. 4th DCA 1997).

In a personal injury action in which the plaintiff seeks damages for future medical expenses, “only medical expenses which are reasonably certain to be incurred in the future are recoverable.” Loftin v. Wilson, 67 So.2d 185, 188 (Fla.1953). There must be “evidence in the record from which the jury could, with reasonable certainty, determine the amount of medical expense [the plaintiff] would be likely to incur in the future.” DeAlmeida v. Graham, 524 So.2d 666, 668 (Fla. 4th DCA 1987); see also Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1159 (Fla. 5th DCA 1994) (“As stated in Loftin v. Wilson, 67 So.2d 185 (Fla.1953), only medical expenses which are reasonably certain to be incurred in the future are recoverable. There must also be an evi-dentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses.”).

Dr. Waldron testified that Mr. Blount sought treatment with him immediately after the accident in 2000. Mr. Blount visited Dr. Waldron again in 2003 after not visiting him for three years. Dr. Waldron testified that Mr. Blount “returned with some of the same complaints and some of the same chronic symptoms he had been having” after the accident. In August 2003, Dr. Waldron treated Mr. Blount six times for a total cost of $395. Dr. Wal-dron testified that it would not be uncommon for Mr. Blount to go a month or two without treatment and then return to him with a flare-up. Dr. Waldron also stated that within a reasonable degree of medical probability, Mr. Blount would continue to need periodic treatment in the future.

Based on the above evidence, it would have been reasonable for a jury to conclude that Mr. Blount could have a flareup every other month and that each flareup would require six visits, costing $395. If Mr. Blount had six flare-ups a year, Mr. Blount’s expenses would be $2370. For nineteen years, his medical expenses would be approximately $45,030. While the evidence shows that this is the amount that might be incurred by Mr. Blount for future medical expenses, there is no evidence showing that he is reasonably certain to incur these expenses. Dr. Waldron did not testify “with reasonable certainty,” DeAlmeida, 524 So.2d at 668, as to how often Mr. Blount would need treatment in the future, and the orthopedic surgeon and neurologist offered no testimony regarding Mr. Blount’s need for future treatment.

We next consider whether the evidence of lost earning capacity supports the jury’s award for future damages. “Florida law does not recognize a claim for future loss of earnings” but does recognize a claim for “damages for loss of earning capacity.” W.R. Grace & Co.-Conn. v. Pyke, 661 So.2d 1301, 1303-04 (Fla. 3d DCA 1995). “The purpose of a jury’s award of damages for loss of any future earning capacity is to compensate a plaintiff for loss of capacity to earn income as opposed to actual loss of future earnings.” Id. at 1302. “[T]he appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty.” Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla.1995). “A plaintiff must demonstrate not only reasonable certainty of injury, but must present evidence which will allow a jury to reasonably calculate lost earning capacity.” W.R. Grace & Co.Conn., 661 So.2d at 1302; see also Allstate Ins. Co. v. Shilling, 374 So.2d 611, 613 (Fla. 4th DCA 1979) (holding that evidence of “some degree of permanent injury is sufficient” but that there also must exist “some basis upon which the jury can reasonably assess damages”).

When a plaintiff is earning as much as or more than he was earning prior to the injury, it is more difficult for him to show that he suffered an economic loss. W.R. Grace & Co.-Conn., 661 So.2d at 1303; Long v. Publix Super Markets, Inc., 458 So.2d 393, 394 (Fla. 1st DCA 1984). However, if the injured party is earning more after the injury, he is not precluded from recovering damages for loss of future earning capacity. Hatfield v. Wells Bros., Inc., 378 So.2d 33, 34 (Fla. 2d DCA 1979); Shilling, 374 So.2d at 613. “Such facts are merely evidence to be weighed by the jury in determining whether or not the injured party’s earning capacity has been impaired.” Shilling, 374 So.2d at 613.

Despite the appellants’ assertions, there was some evidence of Mr. Blount’s diminished earning capacity due to the injury. Mr. Blount’s occupation requires him to be able to participate in physical labor. Mr. Blount testified:

I love working outside. And I mean, I could lift anything. In my shop I could lift engine blocks, or anything. I didn’t need cherry pickers, stuff like that.... And I can’t do that stuff anymore. When I do, I pay for it.
And like my trees, when I first got in digging my cabbage trees or my palm trees there, I did my own trimming with chain saws, and all this. I can’t do that anymore. I have to hire it all done. I’m [sic] just can’t do anything above chest high or my shoulder just kills me.

Mr. Blount testified that he has modified his life and his work style due to his injury. Dr. Waldron testified that Mr. Blount’s injury limits his physical ability by ten percent. Dr. Waldron also testified that “Mr. Blount may be able to get up and continue life on ... a day to day basis and do his job, but it may be with limitations. The research indicates that it is more likely that he will accelerate as far as degeneration goes.” Dr. Waldron testified that Mr. Blount’s functions will not be as good as they once were. Therefore, there is sufficient evidence from which a jury could conclude with reasonable certainty that Mr. Blount has suffered and is suffering permanent injury.

However, there is no basis upon which the jury can reasonably assess future economic damages due to this permanent injury. At the beginning of trial, both parties stipulated to the introduction of several exhibits into evidence. One of these exhibits, plaintiffs exhibit # 1 — a 2001 tax return, indicates that Mr. Blount paid $7995 for hired labor in 2001, after his accident. If this is labor that Mr. Blount could have performed but for the accident, this is money that Mr. Blount would have had the ability to earn as income if there had been no accident. But there is no evidence — other than Mr. Blount’s general statement above that he had to hire people to do his job — that this amount was paid to employees solely due to Mr. Blount’s inability to perform the work himself or that Mr. Blount was reasonably certain to spend this amount on hired labor every year in the future. In addition, even if there was evidence that Mr. Blount was reasonably certain to spend this amount every year, the total amount for nineteen years would only be $151,905. While it was reasonable to conclude that Mr. Blount might suffer a loss of earning capacity based on his injury, there was no basis on which the jury could assess or calculate damages that are reasonably certain to occur.

In sum, the evidence shows that Mr. Blount might incur $45,030 for medical expenses in the future and that Mr. Blount might have suffered $151,905 in damages for loss of earning capacity. This amounts to $196,935 in damages that might occur. This is insufficient to support the jury’s award of $220,000 in future damages. Under section 768.043, the trial court should have granted the motion for remittitur. In the absence of supporting evidence, it appears that the “trier of fact ... arrived at the amount of damages by speculation or conjecture.” § 768.043(2)(c). In addition, the amount awarded does not “bear[] a reasonable relation to the amount of damages proved and the injury suffered.” § 768.043(2)(d). And the amount awarded is not “supported by the evidence and is [not] such that it could be adduced in a logical manner by reasonable persons.” § 768.043(2)(e).

IV. Conclusion

In considering the relevant criteria of section 768.043(2) and the evidence presented at trial, we conclude that the trial court abused its discretion in denying the appellants’ motion for remittitur. We therefore reverse the order on appeal and remand for further proceedings on the issue of future damages. See § 768.043(1) (“If the party adversely affected by such remittitur ... does not agree, the court shall order a new trial in the cause on the issue of damages only.”); Tompkins, 651 So.2d at 91 (reversing and remanding for new trial on the issue of future economic damages only); Eagle Atl. Corp., 704 So.2d at 1105 (reversing and remanding for re-mittitur or, in the alternative, a new trial on the issues of past and future economic damages). In the event that a new trial on the issue of future damages is held, the trial court should use a verdict form that provides for separate itemization of awards for future medical expenses and future loss of earning capacity. See Eagle Atl. Corp., 704 So.2d at 1105.

Affirmed in part, reversed in part, and remanded.

FULMER, C.J., and WALLACE, J„ Concur.


text:
    Michael McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-702.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Britton v. State, 604 So.2d 1288 (Fla. 2d DCA 1992).

SHAHOOD, GROSS and MAY, JJ„ concur.


text:
    Roger L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4862.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).

SHAHOOD, GROSS and MAY, JJ„ concur.


text:
    Cesar BONILLA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-2626, 4D06-2695.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant seeking post-conviction relief.

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


text:
    James SANNINO, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF LICENSING, Appellee.
    No. 4D06-2444.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Andrew D. Stine, West Palm Beach, for appellant.
    Donald Dale Hockman, Jr., Assistant General Counsel, Department of Agriculture and Consumer Services, Tallahassee, for appellee.
   PER CURIAM.

This case is dismissed as to the denial of James Sannino’s application for a Class G security officer license, because the notice of appeal was untimely filed as to this denial. This case is affirmed as to the denial of Sannino’s application for a Class D security officer license without further comment.

Affirmed In Part; Dismissed In Part.

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Danny Ross WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3624.
    District Court of Appeal of Florida, First District.
    May 9, 2007.

      William J. Sheppard, and D. Gray Thomas of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Dunenas v. Moore, 762 So.2d 1007, 1008 (Fla. 3d DCA 2000). See also Boyer v. State, 946 So.2d 75, 76 (Fla. 1st DCA 2006).

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Gerald COAXUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4868.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant and Gerald Coa-xum, pro se, Crestview.
    Robert A. Butterworth, Attorney General, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Sanders v. State, No. 1D01-5033, 2002 WL 31528599 (Fla. 1st DCA Nov.15, 2002) (certifying conflict with Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000); Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995); and Newton v. State, 527 So.2d 876 (Fla. 2d DCA 1988)).

KAHN, BENTON and LEWIS, JJ., concur.