author: TAYLOR, J. FARMER, J.,

text:
    Oliver BOZEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2232.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Rehearing Denied July 12, 2006.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant Oliver Bozeman was tried by jury and convicted of grand theft of an automobile. He appeals, arguing that the trial court erred in instructing the jury on the inference to be drawn from possession of recently stolen property. He argues that the evidence was insufficient to show the exclusive possession required for the instruction. We disagree and affirm appellant’s conviction.

While on routine patrol in Lauderdale Lakes shortly after midnight, Deputy William Leffew observed a 1990 Mazda pushing a 1967 Chevrolet Malibu. The deputy stopped the two vehicles. Appellant was driving the Mazda. His brother, Antoine McIntyre, was in the front passenger seat. Appellant was using the Mazda to push the Chevrolet Malibu. The Malibu had been stolen from a residence earlier that evening. Joe Bolling was in the driver’s seat of the stolen Malibu. The Malibu’s headlights were not on and the engine was not running. There was no vehicle tag on the Malibu. Inside, the vehicle’s steering wheel column was damaged and there was no key in the ignition. The Malibu’s driver side window was shattered and broken glass was on that side of the floorboard. When stopped, appellant told the deputy that McIntyre had purchased the Malibu and that he was merely helping him transport it to McIntyre’s house. All three men were arrested at the scene for theft of the Chevrolet Malibu.

Co-defendant Bolling pled guilty to grand theft and possession of burglary tools. When he was sentenced, he told the judge that appellant had nothing to do with the crime. Bolling also testified at appellant’s trial. He said that he and McIntyre elicited appellant’s help in moving the car without telling appellant that the car was stolen.

During the jury charge conference, defense counsel argued that the standard instruction allowing the jury to infer that the defendant knew that the property was stolen based on his possession of the recently stolen property should not be given because it did not apply. The trial court disagreed and instructed the jury, as follows:

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Fla. Std. Jury Instr. (Crim.) 14.1 at 270.

The jury found appellant guilty of grand theft. He was sentenced to ten years in prison as a habitual felony offender. On appeal, he challenges the above instruction and his sentence.

Appellant argues that the trial court erred in instructing the jury on the inference arising from possession of recently stolen property because the evidence did not demonstrate that appellant possessed the stolen vehicle or that he possessed the vehicle to the extent that he exercised any dominion and control over it.

A trial court’s decision regarding jury instructions is reviewed under the abuse of discretion standard. Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA 1997).

At trial, appellant’s defense to the grand theft charge was that he did not know that the car was stolen. The jury instruction at issue is a standard jury instruction in theft cases that permits the prosecution to prove by inference that a defendant knew or should have known that property in his possession was stolen. See Scobee v. State, 488 So.2d 595, 598 (Fla. 1st DCA 1986). However, before the prosecution can receive the benefit of this jury instruction, it must first produce evidence that the defendant possessed the property. Chamberland v. State, 429 So.2d 842, 843 (Fla. 4th DCA 1983); Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981). The state must demonstrate that the possession was personal, i.e., involved a distinct and conscious assertion of possession by the accused, and that the possession was exclusive. Chamberland, 429 So.2d at 843; Garcia v. State, 899 So.2d 447 (Fla. 4th DCA 2005); Boone v. State, 711 So.2d 594, 596 (Fla. 1st DCA 1998); King v. State, 431 So.2d 272 (Fla. 5th DCA 1983).

As the first district explained in Scobee:

The “exclusive” requirement does not mean that defendant’s possession must be separate from the possession of all other persons. The joint possession of two or more persons acting in concert is “exclusive” as to any one of them.

Scobee, 488 So.2d at 598; see also Walker v. State, 896 So.2d 712, 720 n. 5 (Fla.2005) (approving Scobee’s analysis of the “exclusive” requirement in joint possession cases).

In People v. White, 99 Ill.App.2d 270, 240 N.E.2d 342 (1968), officers observed the defendant pushing a recently stolen automobile into an alley at 3:00 a.m., and another person sitting at the wheel of the vehicle. When the officers approached, the man at the steering wheel fled. The court stated that the evidence established that “the car was in the joint possession of the defendant and his partner.” Id. at 343. In finding the facts sufficient to raise a presumption of guilt and warrant a conviction for theft, the court explained that “[ajlthough the defendant was not inside the vehicle, he was exerting control over it by pushing in into the alley.” Id.

Similarly, in this case, the evidence showed that appellant exercised dominion and control over the Malibu by pushing it while Bolling controlled the car’s steering and braking. Without appellant’s actions, the car could not have been moved. The two men jointly controlled the car and jointly possessed it. Because this was the sort of possession necessary to support the instruction on inference of knowledge, the trial court did not abuse its discretion in giving this instruction to the jury. It was up to the jury to weigh appellant’s explanation for possessing the car and decide whether to accept the correctness of the inference. See Scobee, 488 So.2d at 599.

As to the defendant’s habitual offender sentence, we affirm on the authority of McBride v. State, 884 So.2d 476, 478 (Fla. 4th DCA 2004) (holding that “Blakely does not entitle a defendant to have a jury determine whether he has the requisite predicate convictions for a habitual felony offender sentence”), and Washington v. State, 895 So.2d 1141, 1143 (Fla. 4th DCA 2005) (holding that “shotgun” notice of intent to seek habitual offender sentence is valid).

Affirmed.

GUNTHER, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

The standard of review in this case is not only abuse of discretion. It is a mixture of de novo and abuse of discretion. Whether to instruct the jury on a specific subject begins as a rule bound exercise. Initially, the rule is that if there is evidence on the subject the party is entitled to an instruction. See Bradley v. State, 82 Fla. 108, 89 So. 359, 359 (1921) (“Charges of the court must be based upon facts in proof, and if not so based upon the facts in proof it is error to give them; and the court below erred in giving the quoted charge.”); Diggs v. State, 489 So.2d 1228, 1228 (Fla. 5th DCA 1986) (like defendant, state “is entitled to all applicable jury instructions”); Griffin v. State, 370 So.2d 860, 861 (Fla. 1st DCA 1979) (“the giving of this charge absent appropriate factual basis in the record is reversible error.”). Discretion then may arise as to its content, as when there is no standard instruction on the subject, or the standard instruction is circumstantially inappropriate. Card v. State, 803 So.2d 613, 624 (Fla.2001) (holding that decision as to “whether to give a particular jury instruction is within trial court’s discretion”).

I cannot agree that there is any evidence that this, defendant had possession of a stolen automobile when he was simply pushing it with his vehicle. The majority rely on Walker v. State, 896 So.2d 712, 720 n. 5 (Fla.2005), for its holding as to the kind of possession that is necessary for the “recently stolen property inference” jury instruction. Walker actually relied on Scobee v. State, 488 So.2d 595, 598 (Fla. 1st DCA 1986), for its holding. Scobee explained:

“Frequently ... the defendant is not established as having been at the scene of the crime, and the location of the stolen property is relied on as the primary or, indeed, sole evidence of defendant’s guilt but does not meet the requirements that a defendant’s possession be exclusive, recent, and involve a distinct and conscious assertion of property. Griffin [v. State, 370 So.2d 860,] 861 [(Fla. 1st DCA 1979)]; Wharton’s Criminal Evidence, Volume 1, § 139 at 236-237:
Mere possession of stolen property, without other evidence of guilt, is not to be regarded as prima facie evidence of larceny, robbery, receiving stolen property; or burglary. It must be shown that the possession of the defendant was exclusive, recent, and involved a distinct and conscious assertion of property. The meaning of the terms ‘exclusive’ and ‘recent’ will vary with the circumstances of each case.” [e.s.]

488 So.2d at 598.

Evidence that defendant was pushing a stolen car with his own car is not evidence of “possession” as described in Scobee and inferentially approved in Walker. If it were, the charge could apply to anyone who touched it, for that is all he actually did. This evidence does not satisfy the requirement that the defendant’s possession be “personal,” and a “distinct and conscious assertion of property.” See also Griffin v. State, 370 So.2d 860, 861-62 (Fla. 1st DCA 1979) (“the rule which allows consideration by the jury of possession of stolen property as evidence of guilt has been held to be limited by the further requirements that the possession be personal, that it involve a distinct and conscious assertion of possession by the accused, Presley v. State, 63 Fla. 37, 57 So. 605 (1912), and Solomon v. State, 145 So.2d 492 (Fla. 2nd DCA 1962); and that the possession must be exclusive.... ”).

Walker merely makes the unexceptional point that multiple people can jointly have exclusive possession of something. It does not stand for the proposition that simply pushing an automobile at the request of someone driving it is itself possession. Nor does it indicate that by assisting in pushing a stalled automobile, the pusher must necessarily be deemed present when it was stolen. Because the act of pushing a stolen automobile ambiguously points in many directions, the State had the burden of adducing some additional evidence to establish that defendant was consciously involved in an act of theft, not of innocent assistance in getting a stalled car to a place of repair.

Giving the “recently stolen property inference” jury instruction in this case was especially pernicious. It allowed the jury to believe that the law necessarily deems this defendant’s conduct the crime of possession, when it does not. In fact, giving this instruction for this kind of ambiguous conduct induced the jury into believing that, notwithstanding the perpetrator’s testimony to the contrary, the law deems that he knew the stolen car was stolen and willingly possessed it. Even if — when properly used — this jury instruction does not ordinarily constitute an improper comment by the judge on the evidence, in this instance that is exactly what it became. See Tot v. United States, 319 U.S. 463, 467-71, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) (noting that only where there is a rational connection between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant); County Court of Ulster County, New York v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (instructing jury as to permissive inference improperly affects reasonable doubt standard only if under facts of case “there is no rational way the trier could make the connection permitted by the inference”). There was nothing about the car that would have alerted a Good Samaritan stranger asked to help push it that it was in fact stolen.

      . I might agree that the evidence could support the crime of aiding and abetting the theft of the stolen automobile. But with the perpetrator’s testimony that this defendant was merely helping him push the stolen car and that this defendant had no knowledge that it was stolen, there simply is no evidentiary basis for a charge of possession of stolen property.


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Jermaine VIRGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4523.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Rehearing Denied July 11, 2006.

      Kayo E. Morgan of Kayo E. Morgan, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Jermaine Virgo, was convicted of two counts of armed robbery which occurred in a convenience store on April 15, 2001. We find the four issues raised by Virgo to be without merit and affirm Virgo’s conviction and sentence.

At trial the state presented the testimony of the two employees of the Circle K who were present when two masked men, one of whom was carrying a gun, entered and took money from the store’s cash register and from one employee and a customer. The witnesses described the clothes worn by the gunman and the bandanna over the lower half of his face. They also testified that the robbers were African-American. The state showed the videotape taken in the store which showed the men’s clothing. The victims described the gun as dark in color or black.

On April 19, four days after the robbery, the City of Margate police received a BOLO for a pickup truck involved in a robbery that had just happened. Officer Robert Wagner observed the • truck and saw both the driver and the passenger, later identified as Virgo and Marcelle Wright, respectively. When Virgo and Wright saw Officer Wagner, they fled in the truck. Officer Wagner gave pursuit and followed the truck down a dead-end street. When the truck stopped, both doors opened and the two occupants fled on foot. Officer Wagner pursued the driver and another officer, who had joined the chase, ran after the passenger. Officer Wagner was unable to catch the driver but the police found Virgo’s driver’s license in the truck and Wagner was able to identify Virgo as the driver who fled the truck.

Also found in the truck, which was registered to Virgo, was clothing which matched the description given by the Circle K victims and shown on the videotape of the robbery.

Although Virgo was not captured after the vehicle chase, his passenger, Marcelle Wright, was. Upon his arrest, Wright confessed that he and Virgo committed the robberies at the Circle K. He testified against Virgo at trial.

Virgo raises four issues on appeal. He first argues that the trial court abused its discretion in denying his motion in limine in which he requested that the court preclude the state from having any witness refer to any robbery other than the robberies for which Virgo was being tried. In particular, he argued that testimony concerning the car chase and Virgo’s running from the truck was inadmissible as irrelevant collateral crimes. The state responded that Virgo’s flight showed his consciousness of guilt.

In Thomas v. State, 748 So.2d 970 (Fla.1999), the supreme court held:

This Court has stated that the admission of evidence is within the trial court’s discretion and will not be reversed unless defendant demonstrates an abuse of discretion. The law is well settled that “[wjhen a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred from such circumstance.” However, we have held that in order to admit this evidence, there must be a nexus between the flight, concealment, or resistance to lawful arrest and the crime for which the defendant is being tried in that specific case. Moreover, such an interpretation should be made with a sensitivity to the facts of the particular case.

Id. at 982 (citations omitted). A nexus “is necessary in the application of this rule of law since the evidence creates an inference of a consciousness of guilt of the crime for which the defendant is being tried in that case. The ultimate admissibility issue is the relevance to the charged crime.” Escobar v. State, 699 So.2d 988, 995 (Fla.1997), abrogated on other grounds by Connor v. State, 803 So.2d 598 (Fla.2001) (citation omitted).

In Shellito v. State, 701 So.2d 837 (Fla.1997), the supreme court held that evidence that the defendant, who was on trial for murder, resisted arrest was admissible as to consciousness of guilt even though he had committed several robberies between the time of the murder and his arrest one day later. In Bundy v. State, 471 So.2d 9 (Fla.1985), evidence that Bundy attempted to flee officers six days after the murder was admissible as consciousness of guilt even though he was wanted for several murders in other states. These cases indicate that flight evidence has been found admissible even though the flight could have been attributed to other crimes.

In the instant case, although Virgo’s flight could have been attributed to the robbery he may have just committed, it is also reasonable to conclude that he was fleeing because of the commission of another robbery four days earlier. Virgo had used the same vehicle and inside the truck, he had the same gun used and the same clothes he wore during the April 15 robbery. The trial court did not abuse its discretion in finding evidence of Virgo’s flight admissible.

Virgo next argues that the trial court abused its discretion when it permitted the state to present the testimony of Virgo’s girlfriend, Tameka Wilson, concerning Virgo’s attempt to fabricate an alibi for April 19 at the time of Virgo’s flight from the police. Virgo argues that the evidence is irrelevant to the charged offense and unduly attacks his character. An attempt to fabricate or fabrication of an alibi is relevant to the issue of consciousness of guilt. See Cummings v. State, 715 So.2d 944, 948-49 (Fla.1998). Virgo’s attempt to fabricate an alibi was evidence of his need to disassociate himself from his vehicle and the items found in it that connected him to the robberies.' The trial court did not abuse its discretion in permitting Wilson’s testimony as it was additional evidence of his consciousness of guilt.

Virgo also argues that the trial court erred in failing to conduct a Richardson hearing with respect to the state’s non-disclosure of a witness’s statement attributed to Virgo which the state intended to use at trial. The trial court erred in failing to conduct a hearing. However, we find the error harmless because the non-disclosed statement was cumulative to other witnesses’ testimony of statements made by Virgo during the robbery.

During the trial Virgo was shackled and he argues that the trial court erred in requiring him to remain shackled throughout the'trial. This was at most harmless error because the jury never saw that Virgo was wearing shackles.

Affirmed.

WARNER and GROSS, JJ„ concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: FARMER, J.

text:
    KIRKLAND’S STORES, INC., Appellant, v. Joan FELICETTY, Appellee.
    No. 4D05-2230.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Rehearing Denied July 21, 2006.

      Richard A. Sherman, Sr. and Richard A. Sherman, Jr., Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, for appellant.
    ' Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, Andrew J. Weinstein of Weinstein & Associates, P.A., Coral Springs, and Craig EL Blinderman of Mre-jen Blinderman, LLC, Fort Lauderdale, for appellee.
   FARMER, J.

In this negligence action the trial judge entered a default on liability against the defendant for failing to file an amended answer and affirmative defenses and, alternatively, as a sanction for disregarding several orders of the court involving discovery and related issues.

As to the failure to file an amended answer, the record discloses that defendant’s previous answer had been stricken several months before trial with leave to file an amended pleading. While plaintiff did not raise — by a motion for default — the failure to file the amended pleading until the day before trial began, defendant failed even thereafter to file such pleading and never actually filed a motion to vacate the default, even as part of its post-trial motions. As to the discovery violations, the trial judge considered on the record and in his written order the required factors, making the required findings, discussed in Ham v. Dunmire, 891 So.2d 492 (Fla.2004), and Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).

The record makes clear that the trial judge gave this matter very careful and thoughtful consideration, focusing on the specific circumstances of the case before him. At the hearing on the motion for default he explained:

Oh, it is time for the court to bite the bullet. I have reconsidered it. It is a real close call. Your motion is granted. I am striking. I am defaulting them on the issue of liability. It is just the aggregate, the totality of circumstances.
It[’s] just too much for a 73-year-old plaintiff. And I am not going to send— this court is not going to send the wrong signal: “well, the way to cure it, because the problem, which was self-inflicted by the defense, is just make the plaintiff wait another month or two months, and these problems will go away. And we will have a fair trial.”
I am not going to do that. I have been thinking about it, but it is a real close call. I understand how the court [Fourth District] feels. They say try it on the merits, try it on the merits.
Might very well reverse this court. It is something for you to think about. It is 50/50. It could go either way, how they feel about it. The final clinker in this is we have an elderly plaintiff, and the plaintiff has done nothing wrong here. Here is the point. You have really done nothing wrong. You haven’t made any outrageous demands.
You sat back. You gave them everything. You are surprised at the mediation. These things should have been done earlier. My first attempt is maybe I can impose a lesser sanction. Maybe I can just try to figure out at the trial in a piecemeal fashion what witness will be allowed to testify, what exhibits, what defenses. But it is clear, you know, a trial is framed by the pleadings. You have a right to rely on these pleadings and know how you are going to present your case to the jury. You really don’t know. We sit here the day before picking a jury, and you still don’t really know. It is not as if you did anything wrong. And I can’t reward it.
And as much as it’s an incredible sanction, and I will be the first to tell you this, it is a very close call. I am not going to be the one to say it’s okay to emasculate all these technicalities. These technicalities have a reason.
And if I am trying to put myself in the plaintiffs position, what kind of opening statement do you give? You don’t even know what the defense is for sure. You don’t even know what is going to be allowed into evidence as far as the photos. You don’t even have a proper jurat yet. The discovery was late again.
On a 73-year-old plaintiff, I am not going to continue the case because I really don’t know what is going to happen to her. I really don’t know, for a woman that is 73 years old with the problem she is suffering here. She has a right to her day in court.
Since you are really faultless in all of this, you didn’t do anything wrong, I am erring — I would rather have heard it totally on the merits on the issue of liability, but the defense kept shooting itself in the foot. That’s why after reconsideration I am going to strike the defense.

The trial court’s decision to enter a default for failure to plead timely is reviewed under the abuse of discretion standard. George v. Radcliffe, 753 So.2d 573, 575 (Fla. 4th DCA 1999) (abuse of discretion is proper standard for refusal to relieve party from default). The proper standard of review for the imposition of sanctions is, again, abuse of discretion. Boca Burger, Inc. v. Forum, 912 So.2d 561, 573 (Fla.2005) (“A lower court’s decision to impose sanctions is reviewed under an abuse of discretion standard.”). And so either way we end up with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980):

“In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.”.

382 So.2d at 1203. After carefully reviewing the record in this case and applying the Canakaris standard, we are unable to conclude that the trial judge abused his discretion by entering a default on liability against the defendant.

Affirmed.

KLEIN and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    T.A. ENTERPRISES, INC., Appellant, v. OLARTE, INC., a Florida corporation, Appellee.
    Nos. 4D05-829, 4D05-3052.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellant.
    Rebecca J. Covey of Law Offices of Rebecca J. Covey, P.A., Fort Lauderdale, for appellee.
   ON MOTION TO DISMISS APPEAL

GROSS, J.

The issue in this case is the constitutionality of a provision of the Motor Vehicle Warranty Enforcement Act (Florida’s Lemon Law), section 681.1095(14), Florida Statutes (2001), which authorizes a court to condition appellate review upon payment by a manufacturer of the consumer’s attorney’s fees. We hold that the statute unconstitutionally violates two provisions of the Florida Constitution.

This case concerns a consumer’s action for damages under the Lemon Law, section 681.10 et seq., Florida Statutes (2001).

Appellee, Olarte, Inc., purchased a new 2000 Ford E250 van. Olarte elected to have several options added to the van in a “conversion” process performed by appellant, T.A. Enterprises, Inc.

Due to problems with the van, Olarte demanded arbitration proceedings under the Lemon Law. The Florida New Motor Vehicle Arbitration Board decided in favor of Olarte, finding that the van was a lemon and requiring T.A. Enterprises to pay damages, take back the van, and pay off a vehicle loan.

T.A. Enterprises timely filed an appeal for trial de novo pursuant to section 681.1095(12), Florida Statutes (2001). After this court reversed an order dismissing this appeal, on remand, the circuit court ordered the parties to non-binding arbitration pursuant to section 44.103, Florida Statutes (2001). The arbitrator found in favor of Olarte and T.A. Enterprises timely challenged the arbitration award and requested a trial de novo under the Lemon Law.

After a non-jury trial, the circuit court entered judgment in favor of Olarte, adopting the Arbitration Board’s award. In an amended final judgment, the court concluded that T.A. Enterprises acted in bad faith and awarded Olarte double damages, for a total of $66,100.67, pursuant to section 681.1095(13), Florida Statutes (2001). T.A. Enterprises filed a notice of appeal directed at the amended final judgment.

After a hearing, the circuit court entered a judgment awarding attorney’s fees and costs of $262,388.29. See § 681.1095(13), Fla. Stat. (2001). Pursuant to section 681.1095(14), Florida Statutes (2001), the court ordered T.A. Enterprises to pay Olarte’s attorney’s fees as a condition of further appeal. T.A. Enterprises filed a notice of appeal directed at that judgment.

Olarte has moved this court to dismiss the appeals unless T.A. Enterprises complies with the trial court’s order to pay its attorney’s fees. We have stayed the appeals on the merits to consider the contention of T.A. Enterprises that section 681.1095(14) is unconstitutional.

Article V, section 4(b)(2) of the Florida Constitution grants a constitutional right to appeal “as a matter of right, from final judgments or orders of trial courts.” See Bain v. State, 730 So.2d 296, 298-99 (Fla. 2d DCA 1999); Rothermel v. Florida Parole & Probation Comm’n, 441 So.2d 663, 665 (Fla. 1st DCA 1983). The supreme court has written that the “legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants’ legitimate appellate rights.” Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1104-05 (Fla.1996). The final judgments in this case are “final judgments or orders” within the meaning of Article V, section 4(b)(2).

Article I, Section 21 of the Florida Constitution contains a second constitutional limitation on the legislature’s power to limit the right to appeal. That section provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” In Chrysler Corp. v. Pitsirelos, 721 So.2d 710 (Fla.1998), the supreme court held that certain aspects of the Lemon Law “respect[ed]” Article I, Section 21.

We find the two constitutional provisions to be related. A statutory condition that “thwarts the litigants’ legitimate appellate rights” under Article V, section 4(b)(2) also violates the access-to-courts provision of Article I, section 21.

The question in this case is one that we declined to reach in Chrysler Corp. v. Pitsirelos, 689 So.2d 1132, 1135 (Fla. 4th DCA 1997), quashed on other grounds, 721 So.2d 710 (Fla.1998): the constitutionality of section 681.1095(14), which states that “appellate review” of a final “judgment affirm[ing] a decision by the board in favor of a consumer” “may be conditioned upon payment by the manufacturer of the consumer’s attorney’s fees.”

Section 681.1095(14) authorizes a court to set a substantial financial barrier to an appeal. In a Lemon Law case, attorney’s fees typically exceed the amount of a damages award. Here, the attorney’s fee award was $260,197.50; the damage award became $66,100.67 only after it was doubled pursuant to section 681.1095(13).

“The constitutional right of access to the courts sharply restricts the imposition of financial barriers to asserting claims or defenses in court. Although courts have upheld reasonable measures, such as filing fees, financial preconditions that constitute a substantial burden on a litigant’s right to have his or her case heard are disfavored.” Psychiatric Assocs. v. Siegel, 610 So.2d 419, 424 (Fla.1992) (internal citation omitted), receded from on other grounds by Agency for Health Care Admin, v. Associated Indus. of Florida, Inc., 678 So.2d 1239 (Fla.1996); see Smith v. Dep’t of Health & Rehab. Servs., 573 So.2d 320, 323 (Fla.1991). To find a violation of the right of access, “it is not necessary for [a] statute to produce a procedural hurdle which is absolutely impossible to surmount, only one which is significantly difficult.” Mitchell v. Moore, 786 So.2d 521, 526 (Fla.2001).

In Psychiatric Associates, the supreme court evaluated a statute that imposed a restriction similar to the one in this case— the statute required a plaintiff bringing a court action against a participant in' a medical review board process “to post a bond sufficient to cover the defendant’s costs and attorney’s fees,” before the action could be prosecuted. 610 So.2d at 421. Holding that the statute violated the access-to-courts provision of Article I, section 21, the court applied a two-part test to evaluate the statute:

Although courts generally oppose any burden being placed on the right of a person to seek redress of injuries from the courts, the legislature may abrogate or restrict a person’s access to the courts if it provides: 1) a reasonable alternative remedy or commensurate benefit, or 2) a showing of an overpowering public necessity for the abolishment of the right, and finds that there is no alternative method of meeting such public necessity.

Psychiatric Assocs., 610 So.2d at 424; see Cmty. Hosp. of the Palm Beaches, Inc. v. Guerrero, 579 So.2d 304, 305 (Fla. 4th DCA 1991), aff'd, 610 So.2d 418 (Fla.1992).

Applying this test to section 681.1095(14), we find that the statute fails to provide a manufacturer with an alternative remedy for appeal or a commensurate benefit. A manufacturer’s appeal is heard only after paying the consumer’s attorney’s fees; the manufacturer receives no benefit from paying the fees. Borrowing from the supreme court’s language in Psychiatric Associates, the statute lacks “reciprocity because [it] does not require [consumers] to pay a [manufacturer’s] ... attorney’s fees if the [appeal] proves meritorious.” 610 So.2d at 424. If a manufacturer prevails on appeal, there is no simple mechanism for the recovery of the attorney’s fees already paid out as a condition of the appeal. As to the second prong of the test, we do not believe that imposing an onerous attorney’s fee requirement on the right to appeal is the only method that a statute could utilize to encourage a timely resolution of a consumer problem with a motor vehicle.

The requirements of section 681.1095(14) go well beyond those minimal appellate cost bonds that the supreme court has upheld as “a valid exercise of legislative power.” Austin v. Town of Oviedo, 92 So.2d 648, 650 (Fla.1957); see also City of Miami v. Murphy, 137 So.2d 825 (Fla.1962).

For these reasons, we deny the motion to dismiss the appeal and quash that portion of the trial court’s orders compelling T.A. Enterprises to pay the attorney’s fees as a condition of further appeal. T.A. Enterprises shall file its initial brief within 30 days of the issuance of this opinion.

WARNER and HAZOURI, JJ., concur.

      . T.A. Enterprises, Inc. is based in Elkhart, Indiana and does business as "Eclipse Conversions.” See T.A. Enters., Inc. v. Olarte, Inc., 835 So.2d 1235 (Fla. 4th DCA 2003). "Eclipse Conversions” converts new vans, which are then distributed as "conversion vans” through Ford Motor Company dealerships in Florida.

      . See T.A. Enters., Inc. v. Olarte, Inc., 835 So.2d 1235 (Fla. 4th DCA 2003).

      .The original damage award of $33,100.67 consisted of a refund due from the manufacturer of $12,025.67 plus $21,075.00, which the court arrived at by assessing damages of $25 per day from October 22, 2001, which was the end of the 40-day period following the manufacturer’s receipt of the arbitrator’s decision. See § 681.1095(13), Fla. Stat. (2001).


author: PER CURIAM.

text:
    Cheryl B. PAUL, Appellant, v. BC PEDIATRICS, INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 3D05-2794.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Cheryl B. Paul, in proper person.
    Louis A. Gutierrez, for appellees.

      Before GREEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Zorrilla v. L. Luria & Son, Inc., 645 So.2d 1078 (Fla. 3d DCA 1994); Sassi v. Five Star Prods., 623 So.2d 864 (Fla. 4th DCA 1993); Caputo v. Unemployment Appeals Comm’n, 493 So.2d 1121 (Fla. 3d DCA 1986).


text:
    Ronald E. PARLEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1271.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2006.
    Ronald E. Parlee, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Pfoutz v. State, 910 So.2d 946 (Fla. 5th DCA 2005).

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


author: PER CURIAM,

text:
    Terrence A. SMARTMAYS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1352.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2006.
    Terrence A. Smartmays, Raiford, Pro Se.
    No Appearance for Appellee.
   PER CURIAM,

AFFIRMED. See Jones v. State, 838 So.2d 659 (Fla. 5th DCA 2003).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Susan Marie BUDZINSKI, Appellant, v. Richard BUDZINSKI, Appellee.
    No. 5D05-1401.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2006.

      Tonya D. Cromartie of Cromartie & Cromartie, P.A., Ormond Beach, for Appellant.
    Brenda Lee London, Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED. See Peiman v. Peiman, 829 So.2d 307, 309 (Fla. 5th DCA 2002).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Scott Thomas BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2784.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wilson v. State, 781 So.2d 1185, 1187 (Fla. 5th DCA 2001).

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


author: SHEPHERD, J.

text:
    Nathaniel MORROW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-186.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing Denied July 12, 2006.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

Appellant, Nathaniel Morrow, appeals from a conviction and sentence stemming from a charge of possession of a firearm by a convicted felon. Because the trial court impermissibly allowed evidence of Morrow’s other misdeeds to become a feature of the trial, we reverse.

Morrow originally was charged with one count of armed robbery, see § 812.13(2)(a), Fla. Stat. (1999), and one count of possession of a firearm by a convicted felon. See § 790.23(l)(a), Fla. Stat. (1999). The counts were severed and tried separately. According to evidence adduced from the two trials, Morrow displayed a gun to his girlfriend and thereafter utilized that gun to deprive the robbery victim of his money, jewelry, and drugs.

At the second possession trial, Morrow stipulated he had been convicted of a felony prior to the incident, leaving as the sole issue whether Morrow actually possessed a firearm. Defense counsel at the outset sought to exclude reference to the robbery. The trial court issued a limiting instruction to the prosecution permitting evidence of and reference to the robbery only to the extent necessary to explain the circumstances of the possession. Despite this admonition, the State referenced the robbery eight times during its opening statement, at least eighteen times during its case-in-chief, and twenty-five times during closing argument. In addition, the trial court granted the State’s request to admit the jewelry stolen by Morrow.

It is settled law in this state that where evidence of an uncharged crime is inextricably intertwined with the charged offense, evidence of the collateral crime is admissible independent of the provisions of sections 90.404(2)(a) and (b), Florida Statutes, “ ‘where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.’ ” Simmons v. State, 790 So.2d 1177, 1178 n. 2 (Fla. 3d DCA 2001) (quoting Nickels v. State, 90 Fla. 659, 685, 106 So. 479, 488 (1925)). However, it is also well established that such evidence cannot become a feature of the trial. See Bryan v. State, 533 So.2d 744, 746 (Fla.1988). Whether the collateral crime has become a feature is not measured simply by the number of references. See Snow- den v. State, 537 So.2d 1383, 1385 (Fla. 3d DCA 1989). Nevertheless, voluminous references to the collateral crime are evidence of a prohibited transgression. As painstakingly and eloquently established by defense counsel on appeal, this is a case of voluminous references. In addition, our own review of the record reflects that the prosecutor raised the uncharged crime with each state witness solely to bolster the credibility of the State’s witnesses. Finally, the State inexplicably placed the stolen jewelry into evidence over defense objection. The argument by the State that the error in this case is harmless beyond a reasonable doubt is meritless.

Reversed and remanded for a new trial.

      . Defendant was sentenced to life in prison in the armed robbery trial. That conviction was affirmed on appeal. Monow v. State, 863 So.2d 391 (Fla. 3d DCA 2003).


text:
    Carlos RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-442.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Carlos Ramos, in proper person.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
   PER CURIAM.

Carlos Ramos appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

Defendant-appellant Ramos states that he entered into a plea agreement for a fifty-year sentence. The agreement included two consecutive mandatory minimum sentences of three years. The underlying crime was committed on March 20, 1989, and the sentencing occurred in 1991.

The defendant alleges that his fifty-year sentences were illegal with respect to the life felonies to which he pled guilty. He argues that under the statute in effect at the relevant time, a fifty-year sentence was not a permissible sentence for a life felony. See § 775.082(3)(a), Fla. Stat. (1989); Lamont v. State, 610 So.2d 435, 437 (Fla.1992); Ferguson v. State, 804 So.2d 411, 412 (Fla. 4th DCA 2001).

The State concedes that the defendant is correct on this issue. The counts that are affected are the life felonies only, namely, counts 10-13 and 15-16. The State points out, however, that the sentences can be restructured through the use of consecutive sentences in order to accomplish the original sentencing intent. See Hanna v. State, 823 So.2d 299 (Fla. 3d DCA 2002); Mathis v. State, 649 So.2d 279 (Fla. 3d DCA 1995). The State may request such restructuring on remand to the trial court. The defendant’s fifty-year sentences for counts one and two are legal sentences and are not to be disturbed. See Ferguson, 804 So.2d at 412.

The defendant also contends that stacking of his mandatory minimum sentences was impermissible. We affirm the denial of relief on this claim. See State v. Christian, 692 So.2d 889, 891 (Fla.1997).

To the extent that the defendant suggests that his trial counsel was ineffective, such a claim cannot be raised by Rule 3.800(a) motion. See Maddox v. State, 673 So.2d 198 (Fla. 5th DCA 1996).

Affirmed in part, reversed in part, and remanded for resentencing on the life felonies.


text:
    John W. MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1824.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    John W. Mann, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

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


text:
    Miguel MADRASO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2678.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing Denied July 11, 2006.
    Miguel Madraso, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Stuart v. State, 771 So.2d 1252 (Fla. 3d DCA 2000).


author: STEVENSON, C.J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. Barbara Judith ORTIZ, Appellee.
    No. 4D05-2402.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Michael J. Neimand, Coral Gables, for appellant.

      Keith A. Schafer of the Law Offices of Chikovsky, Ben & Schafer, P.A., Hollywood, for appellee.
   STEVENSON, C.J.

Appellant, United Automobile Insurance Company (“United Auto”), appeals the final judgment entered in favor of appellee, Barbara Judith Ortiz, pursuant to the February 24, 2005 arbitrator’s decision and the trial court’s finding that no motion for trial was filed by appellant. Because United Auto did not timely file a motion for trial following the nonbinding arbitration decision, we affirm.

On January 1, 2002, Ortiz was injured when an uninsured/under-insured motorist struck her vehicle. Following the accident, Ortiz sought benefits from United Auto based on an insurance policy she believed she had. United Auto denied the policy was in force at the time of the accident and refused to provide benefits. As its first affirmative defense, United Auto argued the policy was canceled at its inception as a result of Ortiz’s returned check for insufficient funds. On December 6, 2004, the trial court ordered the case to nonbinding arbitration. The arbitrator’s decision, rendered on February 24, 2005, found Ortiz was entitled to the total amount of her uninsured motorist coverage, in addition to PIP benefits and attorney’s fees and costs. Ortiz thereafter filed a motion for entry of final judgment in accordance with the arbitrator’s decision due to United Auto’s failure to file a motion for trial.

The trial court held a hearing on the motion on June 1, 2005. There, United Auto acknowledged its absence and non-representation at the arbitration hearing. Counsel for Ortiz pointed out that United Auto had not filed any exceptions to the arbitration order. United Auto responded that it was not challenging the amount of damages awarded, but instead the arbitrator’s jurisdiction to decide if coverage existed. According to United Auto, the trial court had a duty to determine coverage and could only send the issue of damages to arbitration. We disagree.

“Arbitration is a preferred method of dispute resolution.... ” Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, 778 So.2d 1089, 1090 (Fla. 4th DCA 2001). Pursuant to section 44.103(2), Florida Statutes (2005), a court “may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.” A party dissatisfied with the result of arbitration may file a motion for trial within twenty days of service of the arbitration decision. See Fla. R. Civ. P. 1.820(h). “If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision.... ” § 44.103(5), Fla. Stat. “[E]ntry of a judgment in accordance with an arbitrator’s decision is a ministerial act. The trial court has no discretion to deny such a request.” Connell v. City of Plantation, 901 So.2d 317, 319 (Fla. 4th DCA 2005) (referencing Johnson v. Levine, 736 So.2d 1235 (Fla. 4th DCA 1999)).

United Auto relies on Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665, 667 (Fla.1973), to support its argument that it was not required to request a trial de novo because the issue of coverage was never properly before the arbitrator. There, a father and son sought a declaratory judgment to enforce an arbitration award entered for uninsured motorist protection. See Midwest Mut. Ins. v. Santiesteban, 266 So.2d 102 (Fla. 3d DCA 1972). Midwest Mutual agreed to pay the policy limits, but the father and son proceeded to arbitration. See id. at 104. Following the arbitration hearing, the insurance company contended that no coverage existed. See id. at 105. The Third District held that by participating in arbitration, the- insurance company waived the right to contest coverage. See id. On appeal, the Supreme Court of Florida reversed the ruling of the Third District, stating that “[a] challenge of [cjoverage is exclusively a|j]udicial question. ...” 287 So.2d at 667. “Nothing the arbitrators could have done could affect the disputed [e]overage.... A ‘waiver’ of nothing is no waiver.” Id.

We find Midioest Mutual readily distinguishable from the instant case. First, the insurance company there objected in advance to the disputed claim being sent to arbitration, insisting there was no coverage. See id. Second, Midwest Mutual involved an express arbitration agreement between the parties. The extent and scope of the issues appropriate for arbitration were therefore properly determined by resort to the agreement between the parties. It is well-recognized that “unlike a court’s subject matter jurisdiction which cannot be conferred by the parties, an arbitrator’s jurisdiction derives from the parties’ agreement....” LeNeve v. Via S. Fla., L.L.C., 908 So.2d 530, 534-35 (Fla. 4th DCA 2005). Nowhere in Midwest Mutual did the court state that the parties agreed the arbitrator would determine coverage; it is therefore understandable why the court would conclude that a challenge to coverage was exclusively a judicial question. Here, the entire case was referred to nonbinding arbitration pursuant to Florida Statutes section 44.103. We find nothing in section 44.103 that restricts the issues the arbitrator may determine during arbitration. Thus, when the trial court referred the instant case to nonbinding arbitration, the entire controversy, including liability, damages and coverage, was subject to determination by the arbitrator. Cf. Buckeye Check Cashing, Inc. v. Cardegna, — U.S. -, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (holding that a borrower’s claim that a contract was void ab initio under Florida Law and public policy must be resolved by arbitration where there was no claim that the arbitration provision itself was unenforceable and reversing Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla.2005)).

Accordingly, we hold the issue of coverage may be determined by the arbitrator when a trial court refers a case to nonbinding arbitration pursuant to section 44.103. In this case, because no party filed a timely motion for trial, the trial court did not err in entering final judgment in accordance with the decision of the arbitrator.

Affirmed.

GUNTHER and MAY, JJ., concur.


author: TAYLOR, J.

text:
    Lauri MANICCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1742.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Rehearing Denied July 14, 2006.

      Jason T. Forman of Jason T. Forman, P.A., Fort Lauderdale, and Steve Rossi of the Law Offices of Braverman and Rossi, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Lauri Maniccia appeals the denial of her request for credit for time she spent in a “lockdown” psychiatric hospital before trial. Because the facility is the functional equivalent of a jail and appellant’s confinement there was coercive, we conclude that the trial court erred by denying appellant’s request for time served.

Appellant was arrested and charged with arson of a dwelling, a first degree felony punishable by up to thirty years in prison.. At appellant’s first appearance, bond was set in the amount of $5,000.00, in conjunction with supervised release. Appellant was later served with a warrant based upon a violation of supervised release and held without bond.

At a hearing on appellant’s motion for reinstatement of supervised release and/or bond, appellant requested the trial court to add a special condition requiring her to enter a treatment facility known as “Recovery First.” Based on information that appellant had previously absconded from a voluntary drug treatment program and the trial court’s concern that “Recovery First” was not a secure facility, the trial court denied appellant’s motion to reinstate bond.

Appellant filed a renewed motion for pretrial release or bond. At the hearing on the motion, appellant called Dr. John Spencer, who testified that appellant suffered from a “severe mental illness” and that he had some concerns about her competency. Appellant also presented the testimony of Paul Pellinger, a certified addictions professional specializing in dual diagnoses of mental illness and addiction. He testified that Fort Lauderdale Hospital is a lockdown psychiatric hospital for patients with chemical dependency and dual diagnoses.

Appellant requested the court to release her to the custody of Fort Lauderdale Hospital. The court agreed, reasoning:

Clearly she needs some help, and I would, if this is what you say, a lock-down facility, and I have ... a doctor and a mental health professional that are assuring me, that I would be willing to allow her to be in that facility if she were transported in a secure way so that she was released only to that facility and that she was never in any position of not being in full custody.

Without reinstating appellant’s bond, the court ordered that appellant be “[rjeleased to the Fort Lauderdale Hospital, a lock-down facility only, to be transported by law enforcement.” Additionally, the court ordered that a competency evaluation be conducted in order to determine her competency to stand trial. Appellant was transported by law enforcement officers to Fort Lauderdale Hospital, where she remained without bond while awaiting trial. Several times, during the course of her confinement at the facility, the court issued orders to the Palm Beach Sheriffs Office to transport appellant from Fort Lauderdale Hospital to court for pre-trial hearings.

At a plea conference, appellant requested credit for time spent in the lockdown facility, Fort Lauderdale Hospital. The state argued against granting credit, asserting that she was not entitled to credit because she had requested her placement at the hospital, she was not in the custody of the sheriff during her time at the facility, and the treatment center was not run for the purpose of punishment. Relying on Tal-Mason v. State, 515 So.2d 738 (Fla.1987), and Pennington v. State, 398 So.2d 815 (Fla.1981), the court determined that appellant was not entitled to credit for time she spent at the hospital because she requested to be transferred there for treatment.

Before the Florida Supreme Court decided Tal-Mason, a defendant could not be credited for time spent in mental institutions awaiting trial. See Pennington, 398 So.2d at 816 (“Halfway houses, rehabilitation centers, and state hospitals are not jails.”); Dalton v. State, 362 So.2d 457 (Fla. 4th DCA 1978) (denying credit for time spent in a state mental hospital awaiting trial). But, in Talr-Mason, the supreme court expanded its interpretation of the statute authorizing credit for time served in jail before sentence, section 921.161(1), Florida Statutes. There, the defendant, after being found 'incompetent to stand trial on a murder charge, spent more than five years in custody at state mental hospitals before entering a plea. The court held that the defendant was entitled to credit for the time he spent in the institutions awaiting a finding of competency. It concluded that commitment for incompetence is a “coercive deprivation of liberty” and found that “his coercive commitment to a state institution was indistinguishable from pretrial detention in a ‘jail.’ ” Tal-Mason, 515 So.2d at 739. The court agreed with the Supreme Court of Kansas’s observations:

The physical place of confinement is not important as the appellant technically continued to be in jail while held in custody at the hospitals. He was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail. The court takes judicial notice that the state mental hospitals have the facilities to enforce confinement of their patients, which brings them within the dictionary definition of a “jail.”

Id. at 740 (quoting State v. Mackley, 220 Kan. 518, 552 P.2d 628, 629 (1976)).

The supreme court distinguished its earlier holding in Pennington, which approved our affirmance of a trial court order denying a defendant credit for time spent in a live-in drug rehabilitation program. It noted that the drug program was a condition of the defendant’s probation, voluntarily undertaken. By contrast, the defendant in Tal-Mason was involuntarily confined in the custody and control of the state. He had to remain there until he could be restored to competency. The court clarified that its announcement in Pennington that “state hospitals are not jails,” 398 So.2d at 817, did not apply to the defendant’s coercive commitment in a state mental institution. It described the facility where Tal-Mason was treated as the functional equivalent of prison, pointing out that “there is ‘no meaningful distinction ... between incarceration before trial in a county jail, and state enforced confinement in a mental hospital in preparation for trial.’ ” Tal-Mason, 515 So.2d at 739-40 (quoting State v. Tal-Mason, 492 So.2d 1179, 1182 (Fla. 4th DCA 1986)). It noted that commitment for incompetence “infringes upon significant liberty interests in a particularly coercive manner” different from probation or community control. Id. at 739.

Following this reasoning, our courts have awarded credit for time spent in facilities only where confinement is “coercive” and such facility is the “functional equivalent” of jail. See, e.g., Comer v. State, 909 So.2d 460, 461 (Fla. 4th DCA 2005) (holding drug treatment programs entered as a condition of probation or community control are not “coercive” and therefore credit for time served may not be granted, even if such facilities are “the functional equivalent of jail”); Fernandez v. State, 627 So.2d 1, 2 (Fla. 3d DCA 1993) (holding house arrest not to be equivalent to incarceration in county jail or mental hospital). But see Tennell v. State, 787 So.2d 65 (Fla. 2d DCA 2001) (granting credit for time served in a live-in drug treatment center because it was the “functional equivalent of jail”).

The state argues that this case is analogous to Roberts v. State, 622 So.2d 628 (Fla. 1st DCA 1993), rev. denied, 634 So.2d 626 (Fla.1994). In Roberts, the defendant requested placement in a private hospital, even after admitting that he required no further evaluation. The facility was not “lockdown,” and the court conditioned Roberts’ placement upon his being electronically monitored 24-hours per day. The first district made no finding regarding the “completeness” of Roberts’ confinement; that is, whether it was, indeed, the functional equivalent of jail. Instead, it held that even if his confinement was complete, he could not be granted credit for time served because his “transfer was clearly not coercive or involuntary.” Id. at 629.

Although we acknowledge that the coercive or involuntary aspect of confinement is a part of the test to determine whether a defendant should be granted credit for time spent in a facility, we believe that whether a defendant requests placement in a particular facility is irrelevant. The character of the facility (i.e., the “completeness” of confinement) is more central to our analysis. Theoretically, a defendant could request confinement in jail; yet the defendant would still be credited for time he serves there before sentence. Unlike in Roberts, where the court had to place the defendant under 24-hour electronic surveillance because he was not sent to a lockdown facility, appellant was transferred to an actual lockdown facility for treatment and a competency evaluation. The trial court expressly ordered that she be transported only by law enforcement officials during her transit to and from court. Her confinement was complete; thus, the court erred in denying her request for credit for time spent in Fort Lauderdale Hospital.

For these reasons, we reverse and remand for the trial court to award appellant credit for time spent at the Fort Lauder-dale Hospital.

Reversed and Remanded.

GUNTHER and KLEIN, JJ., concur.

      . "A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time sKe or he spent in the county jail before sentence.” § 921.161(1), Fla. Stat. (2004).


text:
    Rene James BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4523.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Rene James Bryant, pro se, Appellant.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

“It has long been the established law of this state that an order denying a motion for rehearing or reconsideration is nonap-pealable and not subject to appellate review.” Carter v. State, 242 So.2d 737 (Fla. 1st DCA 1970); see Cole v. State, 905 So.2d 905(Fla. 1st DCA. 2005) (“Because the motion for rehearing is not subject.to appellate review, this Court is without appellate jurisdiction.”).

DISMISSED.

KAHN, C.J., ERVIN and VAN NORTWICK, JJ., Concur.


text:
    Rene A. ROGER, Appellant, v. The STATE of Florida, Appellee.
    No. 06-1083.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing Denied July 11, 2006.
    Rene A. Roger, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Contreras v. State, 909 So.2d 962 (Fla. 3d DCA 2005).


text:
    David LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 06-470.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    David Lopez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Del Castillo, 890 So.2d 376 (Fla. 3d DCA 2004).


text:
    Dedrick ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-933.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Dedrick Robinson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Dickey, 928 So.2d 1193 (Fla.2006).


text:
    Eric DOVE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2224.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Eric Dove, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated May 9, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on May 2, 2006, appealing the order on the appellant’s postconviction motion, rendered on July 15, 2005, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b).

DISMISSED.

BENTON, POLSTON, and THOMAS, JJ., concur.


text:
    Joseph THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1971.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Joseph Thomas, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, POLSTON, and THOMAS, JJ., CONCUR.


text:
    Jason A. GILLESPIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1104.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2006.
    Jason A. Gillespie, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    Walter Austin READ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4011.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2006.

      James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Walter A. Read, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W„ GRIFFIN and PALMER, JJ., concur.


text:
    Douglas MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2822.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2006.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Shaddix v. State, 599 So.2d 269 (Fla. 1st DCA 1992).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Andre Leon LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1958.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied July 20, 2006.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Andre Lewis appeals his conviction and sentence for possession of cocaine. We reverse, because the trial court erroneously denied Lewis’s cause challenge to a potential juror.

Lewis was charged by information with possession of cocaine with intent to deliver or sell. During jury voir dire, prospective juror Castro requested a private conference with the court, during which the following colloquy took place:

Prospective Juror Castro: Basically, I figured I should be honest. A family member is a member of the drug enforcement unit.
The Court: Okay.
Prospective Juror Castro: Secondly' — • The Court: How close a family member?
Prospective Juror Castro: He’s a nephew. And on the other hand, my half brother was a drug addict for many, many years and I still feel and see what it did to him, what our family went through and luckily now he’s a pastor. So, I don’t know. Maybe when he hit bottom.
But for so many years we suffered so much because of this. And I don’t know if that would in any way affect my decision either way. And I just wanted to tell you.
The Court: That’s what we really need to know from you. A lot of folks have had family members who have had drug problems in the past or who currently have drug problems. That’s a fairly common occurrence in our society today.
So the real question becomes can you put that aside and listen to the evidence here in the courtroom and base your verdict solely on the evidence and the law that I give you?
Prospective Juror Castro: That’s really — I don’t know. I just wanted to be fair and tell you — tell you all'—
The Court: Okay.
Prospective Juror Castro: (continuing) — before—because I know it’s going to be hard for me either way.
The Court: Well, you kind of got it on both sides. And a lot of — you’d be surprised at how many people that come in here are in the — are on a somewhat similar situation as you are. They may have family members that had drug problems.
On the other hand, they might have someone in their family that is in law enforcement or they might not be.
So the question becomes, since you have these different competing interests in your family, or differing personal experiences, will you still be able to come in here and listen to the testimony and make a decision based upon the testimony that you hear and see and the law that I give you? Do you think you can do that?
Prospective Juror Castro: I — I—
The Court: I’m not sure what your hesitation is. A lot of people don’t want to be on jury service because they know it will be hard for them to do, and it’s hard for most people, so I’d never get a jury if I let everybody go, just because it’s a hard thing to do.
Prospective Juror Castro: I understand. The Court: Are you telling me that this is something hard for you to do, difficult?
Prospective Juror Castro: I believe. I believe it would be.
The Court: Okay.
Prospective Juror Castro: I figured I’d rather say it now than hold it in. And I don’t even know how I’m going to react if I have to serve as a juror. It would be up to — up to them to decide whether or not they want me as part — as part of the group.
But I wanted to be honest to both of them.
The Court: We appreciate that. And it’s good you brought it up. So now you really have to search your sole [sic] and your mind.
Prospective Juror Castro: Right.
The Court: So these lawyers can be sure that you can give them both a fair shake, give them both a fair trial, the State and the defense. That’s what it all boils down to, are you going to give them a fair trial?
Prospective Juror Castro: I would say yes.
■ The Court: All right. Mr. Semenick.
Mr. Semenick: I won’t ask you to decide the case now because you haven’t heard any of the facts, but after you’ve heard the facts, putting everything else aside, you can render a fair and impartial verdict?
Prospective Juror Castro: I hope I can, under everything that is presented, and make a fair decision.
Mr. Semenick: Nothing further.
Ms. Russell-Love: Mr. Castro, what you shared with us, you actually mentioned the turmoil that your family faced because of the — because of a relative.
Prospective Juror Castro: Half brother, yes.
The Court: Your half brother. And I imagine you told us about that turmoil because it effects [sic] you even now; is that accurate?
Prospective Juror Castro: Correct. Correct.
Ms. Russell-Love: Okay. In light of the fact that it affects you in the way that it does, do you think that you would be able to be fair and impartial in a case of this nature?
Prospective Juror Castro: Not if it’s involving drugs, really.
Ms. Russell-Love: We’re not going to judge you, we just want to know honestly-
Prospective Juror Castro: I want to be fair. I just answered from my heart. I don’t want to say one way or the other, because I think it would affect me.
Ms. Russell Love: Okay. So you’re saying you cannot be fair and impartial?
Prospective Juror Castro: I don’t think so. Yeah.

The following day, the court questioned Castro again:

The Court: Yesterday we talked about your stepbrother — stepbrother—right— who had a drug problem. Then you’ve got what, a brother who’s a DEA agent?
Prospective Juror Castro: Nephew.
The Court: So yesterday, when we talked, you sort of had — part of you, for lack of a better term, might look as though it’s pro defense and the other part of you might look as though it’s pro State.
So, what we need to do is make sure that you can set any of your family issues aside and that you can be fair and impartial to both sides. So, you probably had some chance to think about that overnight?
Prospective Juror Castro: Yes, I did.
The Court: And what do you think?
Prospective Juror Castro: I think it really would be very difficult for me to make a fair decision.
The Court: Well—
Prospective Juror Castro: I really do.
The Court: It’s always difficult for jurors to do their job. And something being difficult is not an adequate reason to strike someone from a jury, because some decisions are, indeed, very difficult.
And sometimes the person who realizes that this is an extremely difficult decision to make, sometimes those are your best jurors, because they really want to give this case all the attention that it deserves and they want to be very careful about their decision. They want to weigh all the witnesses, they want to decide whether the witnesses are telling the truth, all, partially, none, what evidence they give the most weight to, and they end up being extremely conscientious jurors.
So, the fact that it’s difficult for you is not sufficient for me to say okay, I’m going to let you go, because, as I say, those sometimes make your best jurors. It’s not whether it’s going to be difficult for you, because it’s difficult usually for everybody. That’s a very difficult decision to be made.
The question is if you can be fair to both sides and give both sides an equal shot. You know, can you decide this without worrying about what your DEA nephew might say to you, or without worrying about what your family might say?
Can you make a decision based on the facts and the law, as you hear and see in this courtroom? What do you think about that?
Prospective Juror Castro: Well, my main — my main feeling, basically, is not what my family might say or may not say, but what I feel about what happened to my brother because he got into drugs.
It’s not that I’m worried about what my nephew may say, whether or not I’m with or against anything—
The Court: Uh-huh.
Prospective Juror Castro: (continuing) — or what my family may think of my decision in any kind of a situation. But it’s just the way I feel, what I went through not being able to help him when he was on drugs.
The fact he got into drugs, he lost his job, family, life, everything was separated, so everything went to pieces really.
And just the thought of — don’t get me wrong, again, when someone is not proven guilty yet, I don’t want to make any judgment in any way, but it would be very hard for me to make a decision of acquittal if I feel he’s guilty. It would be very hard for me to say, you know, he may continue doing the same thing, ruining someone else’s life if he’s ever convicted.
The State: Supposing the State don’t prove their case, suppose they don’t prove it, will you be able to acquit him? Prospective Juror Castro: They would not prove? Of course.
The Court: All right. And if they prove their case, will you be able to convict him?
Prospective Juror Castro: Yes, I would have no choice.
The Court: And you would have no choice, either, if they didn’t convict — if they didn’t prove the case?
Prospective Juror Castro: Right.
The Court: Same thing?
Prospective Juror Castro: Yes.
The Court: Miss Love.
Ms. Russell-Love: Mr. Castro, you’ve demonstrated that you clearly understand everything the Judge has said to you. You clearly understand the rule, which is, if they don’t proof [sic] their case you have to go one way, if they do prove their case you go the other way, so it’s clear you understand all of that? Prospective Juror Castro: Yes.
Ms. Russell-Love: Despite that, it’s been two days. You were here yesterday and you’re here today. Can you tell us whether or not you can be fair or impartial? We need a yes or no. Prospective Juror Castro: I would say yes.
Ms. Russell-Love: You think you can, despite everything that you just said. All right. You’re telling us that you can be fair and impartial despite what happened to your brother, despite the feelings for the charge my client has been charged with?
Prospective Juror Castro: If I feel there’s not enough proof against the gentleman, I would have to acquit. I would not be able to convict him if it’s not proven to my satisfaction and to the satisfaction of the Court.

The court denied the defense’s motion to strike Castro for cause. The defense then used a peremptory challenge to strike Castro. Thereafter, the defense requested an additional peremptory challenge to strike another juror, which request was denied.

We review a trial court’s decision to deny a cause challenge for an abuse of discretion. Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2002). A trial court’s decision regarding a challenge to a juror will not be disturbed on appeal absent manifest error. Singer v. State, 109 So.2d 7, 22 (Fla.1959); see also Peters v. State, 874 So.2d 677, 679 (Fla. 4th DCA 2004) (“While the decision to accept or dismiss a putative juror is considered an exercise in discretion, we view the seating of a juror as to whom there is a reasonable doubt concerning impartiality an abuse of discretion and thus ‘manifest error.’ ”).

“The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Jenkins v. State, 824 So.2d 977, 980 (Fla. 4th DCA 2002) (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984)). If there is any reasonable doubt about a juror’s impartiality, that juror must be excused for cause. Carratelli, 832 So.2d at 854. “[C]lose cases should be resolved in favor of excusing the juror rather than leaving a doubt about the juror’s impartiality.” Peters, 874 So.2d at 679.

A juror who initially expresses bias may be rehabilitated during the course of questioning. Nevertheless, doubts raised by initial statements are not necessarily dispelled simply because a juror later acquiesces and states that he can be fair. Carratelli, 832 So.2d at 854. We have cautioned:

It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principles is it to be determined that the last statement of the man is better and more worthy of belief than the former?

Id. (quoting Johnson v. Reynolds, 97 Fla. 591, 599, 121 So. 793, 796 (1929)).

To determine if a juror has dispelled all reasonable doubts about impartiality, a reviewing court must look at the entirety of the juror’s voir dire. Scott v. State, 825 So.2d 1067, 1070 (Fla. 4th DCA 2002). “Efforts at rehabilitating a prospective juror should always be considered in light of what the juror had freely said before the salvage efforts began.” Montozzi v. State, 633 So.2d 563, 565 (Fla. 4th DCA 1994); see also Singer, 109 So.2d at 24 (“[A] juror’s statement that he can and will return a verdict according to the evidence submitted and the law announced at the trial is not determinative of his competence, if it appears from other statements made by him of [sic] from other evidence that he is not possessed of a state of mind which will enable him to do so.”).

After reviewing the entire exchange between the court, the attorneys, and Castro, we find that the court committed manifest error by refusing to dismiss Castro for cause. Castro explained to the court that his half brother was a drug addict and that this had a great impact on his family. Thus, he did not know whether he could base his verdict solely on the evidence and the law. The court asked Castro if he could “give them [the lawyers] a fair shake, give them both a fair trial,” to which Castro responded, “I would say yes.” Later, however, defense counsel asked him: “In light of the fact that it affects you in the way that it does, do you think that you would be able to be fair and impartial in a case of this nature?” The juror responded that he could not “if it’s involving drugs.”

Castro was brought back for additional questioning the following day. At the outset, he again stated, “I think it really would be very difficult for me to make a fair decision.” The court engaged in a lengthy monologue concerning the difficult ty posed to jurors in general in reaching verdicts. Castro responded, “it would be very hard for me to make a decision of acquittal if I feel he’s guilty. It would be very hard for me to say, you know, he may continue doing the same thing.” Castro then recanted, stating that if the state did not prove its case, then he would have to acquit the defendant. In response to defense counsel’s question of whether he would be fair and impartial, Castro replied that he would be.

Based on the voir dire transcript, we conclude that there remained a reasonable doubt about Castro’s ability to be fair and impartial. The court attempted to rehabilitate Castro by explaining that jury service is difficult for all jurors. However, Castro appeared to equate “difficulty in making a decision” with “ability to be fair and impartial.” Indeed, Castro stated that he would, have difficulty reaching a decision because he doubted his ability to be fair, under the circumstances. Although Castro acquiesced and stated that he could be fair, given his strong statements the previous day and his statement at the beginning of questioning on the second day that he doubted his ability to be fair, we cannot find that his later statements dispelled doubts.

We therefore reverse appellant’s conviction and sentence. Because we are reversing for a new trial, we see no need to address appellant’s remaining points on appeal.

Reversed and Remanded for new trial.

GUNTHER and KLEIN, JJ., concur.


text:
    Phillip Gene ADLINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-752.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Rehearing Denied July 19, 2006.

      Phillip Gene Adlington, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Phillip Gene Adlington appeals a trial court order summarily denying his consolidated motions to correct sentence under Florida Rule of Criminal Procedure 3.800(a) and for post conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse and remand in part for reasons which follow.

Adlington pleaded guilty to burglary of a conveyance and agreed to be sentenced to a term of either 24 or 36 months in prison followed by probation, to be reduced to 12 months in jail if he turned himself in on a certain date after a brief furlough. The record is not clear on whether the agreed upon sentence was 24 or 36 months in prison. Nonetheless, Adlington failed to appear, and he was sentenced to 36 months in prison. He did not appeal.

In this consolidated motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a) and motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, he claimed scoresheet error, ineffective assistance of trial counsel for failure to object to the same scoresheet error, involuntary plea and ineffective assistance of trial counsel for several other reasons.

We affirm the trial court’s summary denial of the claim of involuntary plea relating to his medical treatments without further discussion.

On Adlington’s claim of scoresheet error, he argued that his Criminal Punishment Code scoresheet erroneously assessed him 9 points for trafficking in marijuana when in fact the prior offense should have been scored for his being an accessory to, or having committed conspiracy to traffic. He claims that he should have been assessed only 2.4 points for that level offense, and that if corrected, his lowest permissible sentence in the scoresheet would have been any non-state prison sanction.

We reject this claim under rule 3.800(a), since appellant has not alleged or shown that the trial court record demonstrates on its face his entitlement to relief. Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998).

Applying the Supreme Court of Florida’s “would-have-been-imposed” harmless error test pronounced in State v. Anderson, 905 So.2d 111 (Fla.2005), since appellant’s motion also invokes rule 3.850, we reject appellant’s claim of scoresheet error because it conclusively can be said that the trial court would have imposed the same sentence with the corrected score-sheet. See also Graham v. State, 920 So.2d 1262 (Fla. 4th DCA 2006). Here, appellant contended that if the scoresheet had been corrected, the lowest permissible sentence would have been any non-state prison sanction. Even if true, his own allegations would have the court find that he agreed to at least a sentence of 24 months in prison followed by probation, to be reduced to 12 months in jail if he appeared in court on time. This still would have far exceeded the lowest permissible sentence he seeks to have stated in his scoresheet.

Because appellant agreed to a term of years in this case, we also reject his claim of trial court error in summarily denying his claim of ineffective assistance of counsel for failure to object to the same scoresheet error. He did not allege that he would not have entered his plea had he known of this error. See generally Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

As for Adlington’s final claim of ineffective assistance of trial counsel, we affirm its summary denial except for denial of his claim that he agreed to a 24 month sentence to be reduced to 12 months if he returned from furlough on time, but that counsel allowed this agreement to be changed to provide for a 36 month sentence instead, without his knowledge of or agreement to that change. We reverse the summary denial of that claim for an evidentiary hearing or record attachments refuting it.

Affirmed in Part, Reversed and Remanded in Part.

POLEN, GROSS and MAY, JJ„ concur.


author: ROTHENBERG, Judge.

text:
    James L. BOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-331.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    James L. Bond, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, James L. Bond, appeals the trial court’s denial of his motion for posteonvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As we conclude that the claims raised in the instant motion are claims which were previously raised or are claims which could have been raised in the defendant’s previous 3.850 motions, we affirm.

On February 25, 2002, the defendant pled guilty in Case No. 00-24.589 to possession of a firearm by a convicted felon and other charges, and in Case No. 00-14939 to strong arm robbery. On March 27, 2002, he was sentenced to ten years as a habitual violent offender with a ten-year minimum mandatory on each case, with the sentences running concurrent with each other.

On November 6, 2002, the defendant filed his first 3.850 motion, which was filed as to Case No. 00-24539 only. All three grounds raised alleged ineffective assistance of trial counsel. This motion was denied by the trial court on February 12, 2003, as the defendant’s claims were refuted by the record, and this court affirmed the trial court’s denial on May 28, 2003. See Bond v. State, 847 So.2d 477 (Fla. 3d DCA 2003).

On April 22, 2004, the defendant filed another motion for postconviction relief pursuant to rule 3.850 under both case numbers, 00-24539 and 00-14939, again alleging various claims of ineffective assistance of counsel. This was his second 3.850 motion filed in Case No. 00-24539 and his first 3.850 motion filed in Case No. 00-14939. The motion was denied by the trial court on May 24, 2004, and affirmed by this court on appeal on September 22, 2004. Bond v. State, 883 So.2d 807 (Fla. 3d DCA 2004).

In January 2005, the defendant filed a motion under both case numbers for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800, which was denied by the trial court on March 8, 2005, and affirmed on appeal by this court on May 25, 2005. Bond v. State, 902 So.2d 287 (Fla. 3d DCA 2005).

On November 18, 2005, the defendant filed the instant 3.850 motion for postcon-viction relief under both ease numbers, alleging various claims of ineffective assistance of counsel. As this is the defendant’s third 3.850 motion in Case No. 00-2Í539 and his second such motion in Case No. 00-14939, and we conclude that the claims raised were previously raised or could have been raised in the defendant’s prior 3.850 motions, we affirm the trial court’s denial of the instant motion. See Zeigler v. State, 632 So.2d 48, 51 (Fla. 1993); Foster v. State, 614 So.2d 455, 458 (Fla.1992); Franklin v. State, 923 So.2d 1199, 1199 (Fla. 3d DCA 2006); Ragan v. State, 643 So.2d 1175, 1176 (Fla. 3d DCA 1994).

Affirmed.


text:
    Ianleal SCHUETTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-892.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Ianleal Schuettler, Immokalee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order denying appellant’s motion to correct illegal sentence. Our affirmance is without prejudice to appellant filing a Rule 3.800(a) motion that alleges where in the record the information regarding jail time can be located and explains how the record demonstrates entitlement to the credit for jail time, see Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998). See also Phillips v. State, 839 So.2d 893 (Fla. 4th DCA 2003); Trapkin v. State, 857 So.2d 989 (Fla. 4th DCA 2003); Swanson v. State, 825 So.2d 507 (Fla. 1st DCA 2002). If appellant’s true complaint is that the Department of Corrections has failed to grant him credit for time served, then he must seek relief from the Department as outlined in Milne v. State, 807 So.2d 725, 726 (Fla. 4th DCA 2002).

STEVENSON, C.J., GUNTHER and SHAHOOD, JJ., concur.


text:
    Oscar CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1241.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    Oscar Carter, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant, Oscar Carter, appeals the denial of a Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. Because the motion was confusing and without merit, we affirm. Appellant has filed at least five prior postconviction attacks on his convictions and sentences in lower court case numbers 97-1395 CF10 and 97-3287 CF10. Because all of appellant’s other filings have been equally confusing and frivolous, this court ordered appellant to show cause why this court should not impose the sanction of no longer accepting pro se appellate filings on these cases. See State v. Spencer, 751 So.2d 47 (Fla.1999).

In response, appellant filed another tortuously confused document titled, “Motion for Standard of Review,” that repeated frivolous arguments that were previously denied and then affirmed on appeal. Appellant also claimed that he did not previously file a Florida Rule of Criminal Procedure 3.850 motion in this case. This court’s records show that appellant has previously filed two appeals from the denial of prior rule 3.850 motions (Case Nos. 4D00-1189 and 4D02-509). We affirmed the orders denying those motions as the motions lacked merit.

Appellant’s repeated filing of frivolous appeals is diminishing this court’s ability to consider legitimate claims. Accordingly, we will no longer accept pro se filings from this appellant on .these cases. Any legal documents shall be filed on appellant’s behalf by an attorney licensed to practice law in Florida.

Affirmed.

WARNER, POLEN and FARMER, JJ., concur.


text:
    David Earl DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3986.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.
    David Davis, Belle Glade, pro se.
    No appearance required of appellee.
   PER CURIAM.

Sua sponte, we withdraw this court’s order of March 15, 2006, and substitute the following opinion:

Appellant’s petition for habeas corpus is re-designated as an appeal from a summary denial of relief under rule 3.850, Florida Rules of Criminal Procedure. See Childers v. State, 909 So.2d 462 (Fla. 4th DCA 2005). We affirm.

STONE, FARMER and HAZOURI, JJ., concur.


text:
    J.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-547.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    J.O., in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., WELLS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 985.23(3)(c), Fla. Stat. (2005).


author: STONE, J.

text:
    Calvin M. WELLMAN, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 4D05-993.
    District Court of Appeal of Florida, Fourth District.
    June 21, 2006.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Eric H. Luckman of Eric H. Luckman, P.A., Boynton Beach, for appellant.
    Caryn L. Bellus and Sharon C. Degnan of Kubicki Draper, Miami, for appellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny Wellman’s motion for rehearing, but withdraw our opinion of April 19, 2006, and substitute the following in its place.

We affirm a summary final judgment in favor of GEICO, declaring that GEICO effectively cancelled Wellman’s automobile insurance policy prior to the time of Well-man’s accident. If the cancellation was ineffective, as Wellman urges, he would have had coverage at the time of his accident.

GEICO is a “direct” issuer of automobile insurance, selling over the telephone or the internet. Wellman called GEICO and purchased automobile insurance directly, with no agent involved. The original policy includes the countersignature of a high-level career GEICO employee with a Florida 220 license for general lines insurance agents, in accordance with section 624.425, Florida Statutes.

Wellman renewed the policy several times, but eventually neglected to pay a premium. GEICO mailed a cancellation notice in March 2000, stating that the policy would be cancelled for non-payment, effective April 19, 2000. Wellman was involved in an automobile collision in May and made a GEICO claim. GEICO immediately sent a written reservation of rights explaining that the policy had been can-celled for non-payment of premium prior to the accident. It is undisputed that this cancellation, if properly noticed, would have been effective.

Wellman brought suit and also lodged a complaint with Florida’s insurance commissioner. After review of the case, the Department of Insurance resolved that GEICO noticed both Wellman and a lien-holder within the statutory timeframes and that GEICO delivered notice of the cancellation by electronically forwarding “bundled” reports that included the Wellman cancellation to its internal “agent.” In ruling in favor of GEICO, the department was well aware that GEICO was a direct writer and that Wellman had no independent agent. The department found GEI-CO in compliance on the issue of effective cancellation.

GEICO’s motion for summary judgment hinged on its position that Well-man’s policy was properly cancelled in compliance with section 627.728, Florida Statutes, and no additional notice to an agent was sent because, as Wellman admitted, no agent existed.

There is no question that if Well-man had had an insurance agent, then he or she would necessarily have to be noticed of the impending cancellation. The statute, however, is silent regarding cancellation notice to agents when a policy is purchased directly from the insurer. Wellman chose to purchase insurance directly from GEICO. In doing so, he waived the right to notice to a non-existent independent insurance agent. A direct insured gains no benefit by our imposing additional notice obligations on the insurer beyond those exercised here. We also recognize that the Department of Insurance accepted GEICO’s cancellation as valid. “Generally, a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration.” Las Olas Tower Co. v. City of Fort Lauderdale, 742 So.2d 308, 312 (Fla. 4th DCA 1999).

We do not interpret the statutory scheme as mandating any further action by the insurer. Imposition of a requirement that direct writers could not cancel for fraud, misrepresentation, or non-payment in the absence of an agent for the insured, or our requiring additional notice to the internal agent, serves no purpose under the statutory scheme. We have considered and reject all other arguments raised by Wellman.

Therefore, the summary final judgment is affirmed.

GROSS and MAY, JJ., concur.