author: BROWNING, C.J.

text:
    William MORA, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, appellee.
    No. 1D06-0188.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    William Mora, pro se, Appellant.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant seeks review of the denial of his petition for writ of mandamus on two grounds: procedural, for failure to exhaust administrative remedies; and substantive, for lack of merit to his claim of double jeopardy. Because the mandamus petition challenges a quasi-judicial ruling that was partially on procedural grounds and partially on the merits, it proceeds as an appeal, although this panel is free to apply the certiorari standard to its review of the merits ruling. See Whisner v. Moore, 825 So.2d 420 (Fla. 1st DCA 2002).

The record shows that Appellant did not exhaust his administrative remedies, except as to the double jeopardy claim. Appellant has waived his challenge to the double jeopardy ruling by not raising it in the instant appeal. See Ramos v. Philip Morris Cos., Inc., 743 So.2d 24, 28-29 (Fla. 3d DCA 1999). For these reasons, he is not entitled to relief, so we AFFIRM that ruling below.

Appellant also challenges a lien placed on his inmate trust account for costs incurred in filing the petition for mandamus. The State was correct to concede on appeal that the lien was improper because Appellant’s petition ultimately challenged the loss of his gain time. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Accordingly, we QUASH the order imposing the lien.

POLSTON and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Linda HUFFMAN and Jayson Penn, as Co-Personal Representatives of the Estate of Melissa Jane Jones, deceased, and Linda Huffman, as guardian of Al Daniel Prince, III, a minor, Appellants, v. BREEZES FULL SERVICE CAR WASH; John Paul Cash, Jr.; Dick’s Wings USA, Inc.; Spidor Holdings, Inc., d/b/a Dick’s Wings, Barbara E. Baker, and Joshua Lackowski, Appellees.
    No. 1D06-1907.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Tracy S. Carlin of Mills & Creed, P.A., Jacksonville; and Richard C. Watson of Rahaim, Watson, Dearing, Berry & Moore, P.A., Jacksonville, for Appellants.
    Kristen M. Van der Linde and Blake J. Hood of Boyd & Jenerette, P.A., Jacksonville, for Appellees.
   PER CURIAM.

The appellants challenge a summary final judgment in favor of Appellee Breezes Full Service Car Wash (“Breezes”) in this civil suit for personal injury and wrongful death growing out of an automobile collision. We reverse the summary final judgment because there are disputed issues of material fact regarding whether two of Breezes’s employees, Cash and Lackowski, were acting within the scope of their employment when, during the course of a luncheon which included the consumption of alcoholic beverages, they allegedly committed negligent acts which caused the subsequent automobile collision.

On the afternoon of the collision, after closing the car wash due to a rain storm, several Breezes employees had lunch and consumed alcoholic beverages together at a restaurant. Cash, an owner and manager of Breezes at the time, hosted the luncheon, and Lackowski, also a manager, was in attendance. When the luncheon ended, Lackowski drove away from the restaurant and collided shortly thereafter with a motor vehicle driven by Melissa Jones. Jones was killed and her son was injured. The appellants thereafter filed suit alleging that Breezes was vicariously liable for negligent acts committed by Cash and Lackowski during the luncheon.

Breezes moved for summary final judgment, asserting that it could not be held vicariously liable for the alleged negligence of Cash or Lackowski because the undisputed facts demonstrated that these employees had ceased acting within the scope of their employment prior to the luncheon. Construing certain deposition testimony by Lackowski, the trial court agreed and entered the summary final judgment under review. In doing so, however, the trial court improperly resolved disputed issues of fact. Although Lackowski’s testimony can be construed as supporting a finding that neither he nor Cash was acting in the scope of his employment at the time of the luncheon, it can also be construed as supporting the appellants’ position to the contrary. Because the record does not resolve disputed material issues of fact in this regard, entry of summary final judgment in favor of Breezes was improper.

The summary final judgment is accordingly reversed and this case is remanded.

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


text:
    Juan F. VEGA, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2390.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Juan F. Vega, pro se, Petitioner.
    Charlie Crist, Attorney General; Linda Horton Johnson, Assistant Attorney General; and Rosa Carson, General Counsel, Tallahassee, for Respondent.
   ON MOTION TO ENFORCE MANDATE

PER CURIAM.

On January 9, 2007, this court rendered a per curiam opinion in Vega v. McDon ough, 946 So.2d 548 (Fla. 1st DCA 2007). Petitioner Vega had sought certiorari review of the trial court’s order denying his petition for writ of mandamus, wherein he challenged a disciplinary report issued by the Department of Corrections based upon a violation of prison mailing rules, and of an order authorizing the Department to impose a lien against his trust account for the costs and fees of the action.

This court denied the relief sought with regard to the disciplinary report, but found “that the trial court departed from the essential requirements of the law by imposing a lien against Vega’s account.”

The record reflects that no motion for rehearing was filed in this case and the mandate issued on February 6, 2007. On remand, the trial court, sua sponte, found that the petitioner’s mandamus petition was a “mixed-petition” pursuant to Schmidt v. McDonough, 951 So.2d 797 (Fla.2006). Furthermore, the trial court ruled “the imposition and placement of a lien against plaintiffs inmate trust account for payment of the filing fees in this case is affirmed.”

It is well settled that a “trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so.” Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 328 So.2d 825 (Fla.1975), citing Cone v. Cone, 68 So.2d 886 (Fla.1953). Appellate courts will not reconsider a previous ruling and recall the mandate unless it is necessary to correct a manifest injustice. Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965).

The trial court shall, without delay, enter an order refunding $280.00 to petitioner Vega’s inmate trust account.

DAVIS, BENTON, and ROBERTS, JJ., concur.

      . The trial court in its order includes the following footnote in its entirety: "It is not clear to the undersigned from a review of the court’s file and the First DCA’s online docket whether or not the DOC raised the matter of the filing fee lien as it is presented and considered here with the district court following the issuance of Schmidt v. McDonough." In fact, the Department conceded that the lien should not have been imposed in its "Response to the Court's Order to Show Cause" of September 11, 2006. Furthermore, the Department neither presented Schmidt v. McDonough to this court nor filed for rehearing in this case.


author: ORFINGER, J.

text:
    Earl HADNOT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2220.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Earl Hadnot appeals his conviction of resisting an officer without violence, in violation of section 843.02, Florida Statutes (2004). The State originally charged Mr. Hadnot with resisting an officer with violence. The jury found Mr. Hadnot guilty of the lesser included offense of resisting an officer without violence. On appeal, Mr. Hadnot contends that the trial court erred in instructing the jury on the permissive lesser included offense of resisting arrest without violence, and that the standard instruction given on that offense was erroneous. The State responds that the trial court properly instructed the jury on this offense because it was supported by the evidence in the case and that under the facts of this case, the instruction was not misleading. Finding no merit to Mr. Had-not’s claims, we affirm his conviction for resisting an officer without violence.

A trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal. Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001); see James v. State, 695 So.2d 1229, 1236 (Fla. 1997); Kearse v. State, 662 So .2d 677, 682 (Fla.1995). However, when requested, an instruction on a permissive, lesser-included offense must be given when the information alleges all the elements of the included offense and the evidence at trial supports the instruction. Stuckey v. State, 907 So.2d 1208, 1210 (Fla. 5th DCA 2005); see State v. Weller, 590 So.2d 923, 926 (Fla.1991); Epps v. State, 728 So.2d 761, 762 (Fla. 2d DCA 1999). Here, because the information and the evidence support the charge of resisting an officer without violence, we find no error in the trial court’s decision to instruct the jury on the permissive lesser offense.

We also find that the trial court’s instruction on the permissive lesser offense of resisting an officer without violence was not erroneous. Mr. Hadnot contends that the resisting an officer without violence instruction given to the jury effectively removed an essential element of the offense from the jury because it failed to require the State to prove that he knew the person he was resisting was a law enforcement officer. Mr. Hadnot is correct that knowledge that the person being obstructed or resisted was a law enforcement officer is an essential element of the crime. See Harris v. State, 935 So.2d 1259 (Fla. 5th DCA 2006); Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999). However, in this case, Mr. Hadnot did not object to the form of the jury instructions that were given. “A party’s failure to object in the trial court precludes appellate review of an erroneous jury instruction unless the error is deemed fundamental.” Miller v. State, 828 So.2d 445, 447 (Fla. 4th DCA 2002); see Jordan v. State, 707 So.2d 816, 817 (Fla. 5th DCA 1998) (finding that court can decline to review jury instruction issue because defense counsel did not object at trial), approved on other grounds, 720 So.2d 1077 (Fla.1998). Absent a timely objection at trial, an issue concerning jury instructions can be raised on appeal only if fundamental error occurred. State v. Delva, 575 So.2d 643 (Fla.1991); Castor v. State, 365 So.2d 701 (Fla.1978); see Miller v. State, 828 So.2d 445, 447 (Fla. 4th DCA 2002); see also § 924.051(3), Fla. Stat. (2004) (stating that an appeal may not be taken from a judgment unless a prejudicial error is alleged and has been properly preserved or constitutes fundamental error).

Mr. Hadnot maintains that he is entitled to a new trial since the failure to give a complete or accurate jury instruction constitutes fundamental error. While Mr. Hadnot’s general statement of the law is correct, the supreme court and this Court have stressed that fundamental error will result only where the issue to which an erroneous jury instruction is directed is in dispute at trial. See Reed v. State, 837 So.2d 366, 369 (Fla.2002) (holding that improper jury instruction rises to level of fundamental error only when it both relates to an element of the crime and that element is in dispute); King v. State, 800 So.2d 734, 737 (Fla. 5th DCA 2001) (reiterating that fundamental error only occurs when the court fails to instruct on an element of the crime that was disputed at trial). Here, Mr. Hadnot’s knowledge that the person attempting to detain him was a law enforcement officer was not placed in material dispute. Mr. Hadnot did not question or present any type of argument regarding this defense. The record clearly shows that the man Mr. Hadnot resisted was dressed in full police uniform with a badge and a gun. His knowledge of the person’s status as a law enforcement officer was not at issue. Having lodged no objection to an instruction relating to an element of the offense that was not in material dispute, Mr. Hadnot cannot demonstrate fundamental error.

AFFIRMED.

PLEUS, C.J. and EYANDER, J., concur.

      . At trial, Mr. Hadnot's defense essentially was that the State failed to prove its case since the two officers’ testimonies were inconsistent.

      . For this reason, Mr. Hadnot's reliance on Harris v. State, 935 So.2d 1259 (Fla. 5th DCA 2006) (concluding that failure to instruct jury on knowledge element of defendant’s conviction for resisting an officer without violence required reversal where defendant's primary defense at trial was that he was unaware that the men who struggled with him were police officers), is misplaced.


text:
    Morris DASHER, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1486.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.
    Rehearing Denied June 6, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

In this Anders appeal, a sentencing issue has been raised by appellate counsel. Before the initial brief was filed, appellate counsel filed a timely motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that it was a double jeopardy violation for Morris Dasher, III, to be convicted and sentenced for both grand theft and dealing in the same stolen property. Within the sixty-day period permitted by the rule, the trial court conducted a hearing and ruled from the bench that Mr. Dasher was entitled to relief. However, the written order was filed beyond the sixty-day period, and as counsel correctly observes and the State concedes, this renders the order void. See Barger v. State, 923 So.2d 597, 603 (Fla. 5th DCA 2006).

We vacate the trial judge’s order correcting Mr. Dasher’s sentence. In doing so, we observe that Mr. Dasher is not entitled to the relief sought under rule 3.800(b). When Mr. Dasher entered into a negotiated plea on both charges, he waived his double jeopardy objections to the sentences that were part of the plea agreement. See Novaton v. State, 634 So.2d 607 (Fla.1994). The order on Mr. Dasher’s rule 3.800(b)(2) motion was entered without jurisdiction and must be stricken.

REVERSED AND REMANDED With Directions to Reinstate Original Sentence.

MONACO and EVANDER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: NORTHCUTT, Judge.

text:
    In the Interest of J.H., a Child. J.W.H., Sr., Appellant, v. Department of Children and Family Services, Appellee. S.M., Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D06-3715, 2D06-3756.
    District Court of Appeal of Florida, Second District.
    May 18, 2007.
    David M. Snyder of David M. Snyder, P.A., Tampa, for Appellant, J.W.H., Sr.

      Norman A. Palumbo, Jr., Tampa, for Appellant, S.M.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee, Department of Children & Family Services.
   NORTHCUTT, Judge.

The circuit court rendered an order that adjudicated two-year-old J.H. to be a dependent child and placed her with her maternal grandmother. The child’s parents, J.W.H., Sr., and S.M., have filed sep-ai'ate appeals in which they contend that the evidence failed to prove that they neglected their daughter. We have consolidated their cases sua sponte.

A dependency determination is a mixed question of law and fact. The court’s order will be sustained on appeal if the court applied the correct law and the ruling is supported by competent substantial evidence in the record. S.G. v. Dep’t of Children & Family Servs. (In re I.B.), 946 So.2d 650, 652 (Fla. 2d DCA 2007) (citing R.F. v. Fla. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000)). In this case, we reverse the dependency order because the evidence did not support it.

The dependency proceeding had its genesis in an anonymous telephone call to the Department of Children and Family Services’ abuse hotline in the late-night hours of February 4, 2006. The caller made several complaints about the parents’ care of J.H. that have never been substantiated. Pertinent to this appeal, however, the caller also claimed that J.H. was underweight to the point that she looked “like a skeleton with her skin on.” The Department sent a child protection investigator to the family’s home around two o’clock in the morning of February 5, 2006. The investigator spoke with the parents and examined the child. She did not think J.H. was dangerously underweight. Rather, she found a small but healthy-looking child with a “round and rosy” face. The responding investigator did not remove J.H. from the home, but she obtained the name of the child’s pediatrician.

The case was then assigned to a different investigator, who reviewed the family’s history. She became concerned when she learned that, some years before, S.M.’s older daughter from a previous relationship had been removed from S.M.’s home and placed with the maternal grandmother. The investigator asked the parents to permit a home visit. J.W.H. agreed, but citing his hectic work schedule, he asked her to call him to make an appointment. He also gave the investigator permission to contact J.H.’s pediatrician.

The pediatrician’s office told the investigator that J.H. was underweight and was characterized as failing to thrive. Without seeing J.H. for herself or reviewing the child’s medical records, the investigator convinced the local Child Protection Team (CPT) to examine her. (The CPT initially refused to examine the girl because she was already under a doctor’s care.) The investigator arranged for S.M. to take the girl to the CPT appointment the next morning. At the CPT exam, J.H. was found to be undernourished and failing to thrive. She was referred to a growth clinic, which the mother agreed to attend.

Apparently, S.M. had failed to mention the CPT appointment to the child’s father. Upon learning of the examination and the growth clinic referral, J.W.H. made an angry telephone call to the investigator to complain that he had not been consulted. The investigator attempted to explain the need for the referral, but the father declared that his child would not be seen without a court order. Later that day, the Department sheltered J.H. and placed her with her maternal grandmother.

In March 2006, the Department filed a dependency petition alleging that the parents neglected J.H. by depriving her of necessary food and medical treatment. See § 39.01(43), Fla. Stat. (2006). At the hearing on the petition in mid-June 2006, the Department presented the testimony of the second child protection investigator, who described the previously detailed events leading to the decision to remove J.H. from her parents’ home. The Department’s only other witness was Dr. Carol Lilly, an expert in pediatric undernutrition. Dr. Lilly had examined J.H. and counseled the family at the growth clinic after the CPT’s referral. (

Dr. Lilly first examined and evaluated J.H. in March 2006. J.H.’s height was in the normal range for a two-year-old, but her weight was far below normal. Dr. Lilly performed several laboratory tests in search of an organic factor — a chronic illness, a biological problem, or a physiological symptom- — that might be the cause of J.H.’s low weight gain. She found nothing. She diagnosed J.H. with mild to moderate chronic undernutrition and developmental delay. Dr. Lilly continued to monitor J.H.’s weight at the growth clinic and referred her to Early Steps to address the developmental delays.

Dr. Lilly’s determination that J.H. had a chronic condition was based on her review of the records maintained by J.H.’s pediatrician. They reflected that J.H.’s weight gain began decreasing when she was six months old. The pediatrician recommended that the parents give J.H. high calorie supplements. Later, he referred the parents to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) to obtain additional nutritional boosters. The pediatrician’s records did not detail what, if any, counseling was given to the parents, nor did they reflect whether the doctor was concerned with what the parents were or were not doing to address J.H.’s poor weight gain. Dr. Lilly expressed surprise that the records did not mention J.H.’s developmental delays, which should have been noticed in a typical pediatric screening. Dr. Lilly did not speak with the pediatrician, nor did the Department call him as a witness in the dependency hearing.

Dr. Lilly met with S.M. and other family members at the growth clinic. She never met J.W.H. because the shelter order effectively prohibited him from attending the appointments. At the first visit, Dr. Lilly was concerned that the mother and the maternal grandmother did not fully appreciate J.H.’s problems. On subsequent visits, Dr. Lilly noted that the family did not appear to understand or follow through with the recommendations of the clinic. Dr. Lilly thought that the family needed help with organizing and adhering to feeding schedules for J.H. She testified that maintaining a routine is important in encouraging a young child to eat regularly. The pediatrician’s records did not indicate that the family had been previously instructed on these tasks. Further, the mother and the grandmother were slow to accept the referral to Early Steps to address J.H.’s developmental delays, and they declined home services.

The parents testified in opposition to the petition. Both acknowledged that they had known of their daughter’s weight problem. But they asserted that they had followed all of their pediatrician’s recommendations. They gave the child high-calorie supplements such as PediaSure and took her to WIC when referred. Both parents testified that S.M. had taken J.H. to the pediatrician regularly and had reported to J.W.H. that the baby was fine and just a little underweight. Indeed, both parents thought J.H. was doing well.

J.W.H. testified that he regretted his hostile telephone call to the child protection investigator in which he initially refused services. He explained that he made the call because he was upset when he learned that the investigator, who had promised to contact him to schedule a home visit, had instead arranged the CPT appointment without consulting him. Since then, he testified, he had encouraged the mother to fully comply with all the agencies’ recommendations for J.H.

To justify this dependency based on neglect, the Department was required to prove by a preponderance of the evidence that J.H. was “deprived of, or [was] allowed to be deprived of, necessary food ... or medical treatment” or that she was “permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” §§ 39.01(43), .507(l)(b). In its dependency order, the circuit court found that the Department had proved that “the parents had neglected this infant by failing to provide her with proper medical care.” To the extent that this statement can be read as finding that the parents did not take J.H. to a doctor when needed, or did not follow the doctor’s advice, it is not supported by the evidence. Other than Dr. Lilly’s testimony, the Department presented no evidence on this topic. Both Dr. Lilly’s review of the pediatrician’s records and the parents’ testimony established that, in fact, the child received regular medical care.

The circuit court also found that the “parents did not follow up” with their pediatrician’s referral to WIC. But the only evidence on this point, the parents’ testimony, established that they did seek the services of WIC. The Department’s evidence did not at all dispute this testimony. No one from WIC testified, and the pediatrician’s records mentioned only that the parents had been referred to the program, not whether they had accepted the referral.

Moreover, Dr. Lilly testified that J.H.’s rate of weight gain had increased during the six months preceding the Department’s intervention. There was no evidence to suggest that J.H.’s progress during that period fell shy of the reasonable expectations of the WIC program. Ironically — and, perhaps, tellingly — in the months since J.H. was sheltered and sent to the growth clinic, her rate of weight gain had declined. In short, the court’s finding that the parents neglected J.H. by failing to provide her with medical care was unfounded. Cf. Dep’t of Children & Families v. K.F., 916 So.2d 948 (Fla. 4th DCA 2005) (affirming termination of parental rights when, among other reasons, the child had received no medical care or immunizations).

As mentioned, the petition for dependency also alleged that the parents had neglected J.H. by depriving her of necessary food, and many of the circuit court’s findings focused on J.H.’s undernutrition. See § 39.01(43). But the decisions that have approved terminations of parental rights and dependencies on this basis, M.J.S. v. State, Department of Children & Family Services (In re D.J.W.), 764 So.2d 825 (Fla. 2d DCA 2000); K.F., 916 So.2d at 950; and Hardy v. Department of Health & Rehabilitative Services, 568 So.2d 1314 (Fla. 5th DCA 1990), have involved a quantum of evidence that was lacking here.

As in this case, the mentioned authorities all involved children’s failures to thrive. The Hardy court explained that “[t]he only way to confirm a diagnosis of nonorganic failure to thrive is to place the child in a more nurturing environment and see if the child begins to grow. If so, the subsequent growth confirms the diagnosis.” 568 So.2d at 1315. Thus, in Hardy, nonorganic failure to thrive was proved because the child lost weight while in his parents’ care and then gained 1.5 pounds and grew two inches while in foster care. Here, in contrast, J.H. was actually gaining more weight in her parents’ care than she did after she was sheltered. In M.J.S., 764 So.2d at 827, the medical evidence established that the child weighed less in 1998 than he had in 1995. Although J.H.’s rate of weight gain began decreasing when she was six months old, she never lost weight.

Additionally, in M.J.S. and K.F., the evidence proved that the parents had actually deprived their children of food. In M.J.S., the mother had told others that she withheld food from her child. 764 So.2d at 827. In K.F., an eighteen-month-old child exhibited signs of starvation, and the child’s sibling had died of starvation. 916 So.2d at 949. Here, there was no evidence that J.W.H. or S.M. withheld food from J.H. Indeed, the fact that J.H. was gaining weight before she was sheltered contradicted any such notion.

To be sure, J.W.H and S.M. were mistaken to believe that J.H. was “fine” and just a “little underweight.” But the evidence established that before the Department became involved, the parents regularly took J.H. to her pediatrician and followed his recommendations as they understood them, and that J.H. was gaining weight in their care, albeit not enough. The parents may have needed help in setting a feeding schedule and an eating routine for J.H., as Dr. Lilly believed, but the Department presented no evidence that they had failed to follow their pediatrician’s advice.

In White v. Department of Health & Rehabilitative Services (In re C.W.), 490 So.2d 175, 176 (Fla. 5th DCA 1986), the Fifth District reversed a dependency order based on neglect because the evidence failed to demonstrate that the child had been willfully deprived of food. Instead, the evidence showed that “the mother, through lack of education and experience, rather than through neglect and mistreatment, [had] failed to provide what the state considers adequate feeding for the baby.” Id.; see also M.B. ex rel. A.F. v. Dep’t of Children & Families, 785 So.2d 1240 (Fla. 5th DCA 2001) (concluding that circuit court erred in finding child dependent when child’s weight loss was attributed to mother’s poor education). At most, that is what the Department proved in this case. It failed to present competent, substantial evidence that J.W.H. and S.M. neglected their child.

Reversed.

ALTENBERND and VILLANTI, JJ„ Concur.

      . Failure to thrive is
      weight consistently below the 3rd to the 5th percentile for age, progressive decrease in weight to below the 3rd to 5th percentile, or a decrease in the percentile rank of 2 major growth parameters in a short period. The cause may be an identified medical condition or related to environmental factors. Both types relate to inadequate nutri-lion. Treatment aims to restore proper nutrition.
      Mark H. Beers, Robert S. Porter, & Thomas V. Jones, The Merck Manual of Diagnosis and Therapy 2395 (18th ed.2006). The Merck Manual refers to failure to thrive stemming from a medical condition as “organic,” while environmental factors produce “nonorganic” failure to thrive. Id.

      . The petition contained a second count, which the Department withdrew at the close of the dependency hearing after failing to offer any evidence in support of it.

      . In its order, the circuit court wrote that J.W.H. "excused his behavior and blamed others for the child’s removal. The Court does not find him a credible witness." It is unclear whether this last observation referred specifically to J.W.H.'s attempts to shift responsibility or to his testimony generally. But his testimony about J.H.'s regular medical care and the couple's attempts to follow the pediatrician's recommendations was undisputed. Indeed, it was corroborated by S.M. and, in material respects, by the testimony of Dr. Lilly. See Republic Nat’l Bank of Miami, N.A. v. Roca, 534 So.2d 736, 738 (Fla. 3d DCA 1988) ("A trial court cannot arbitrarily reject unrebutted testimony.”).


text:
    STATE of Florida, Appellant, v. A.L., Appellee.
    No. 2D06-2301.
    District Court of Appeal of Florida, Second District.
    May 18, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   NORTHCUTT, Judge.

The circuit court granted A.L.’s motion to suppress marijuana and drug paraphernalia discovered during what the court found to be an illegal stop. The State challenges this order, claiming that the stop was justified and that A.L. consented to the search. We agree and reverse.

At the hearing on A.L.’s motion, a Pasco County Sheriffs Deputy testified that he was patrolling around midnight when he noticed a young man, who appeared to be a juvenile, walking on a public street. When the youth saw the deputy’s patrol car, he turned around and began walking in the opposite direction. The deputy decided to investigate what he believed might be a violation of the county’s curfew ordinance. He called out to the youth, who then walked over to the patrol car. A.L. identified himself and admitted that he was under the age of eighteen. He said he was walking to his home from a friend’s house. A.L. consented to the deputy’s request to conduct a pat-down search. The deputy felt a small bulge in A.L.’s front pants pocket, at which point A.L. spontaneously stated that the “bulge” was a bag of marijuana. A.L. then admitted that there was a small pipe in his other pocket. The deputy retrieved both the bag and the pipe and placed A.L. in his patrol car. He took A.L. home and released him to the custody of his mother.

The State subsequently filed a petition alleging that A.L. was delinquent based on his possession of the drugs and the paraphernalia. A.L. was not charged with violating a curfew ordinance. In fact, he may not have violated any ordinance because it turned out that the deputy had stopped him directly in front of his residence.

The circuit court erred in determining that the stop was illegal and in granting A.L.’s motion to suppress the evidence. Under the circumstances, it was reasonable for the deputy to suspect that A.L. was violating the curfew ordinance. Therefore, the deputy was legally permitted to stop A.L. and investigate. Cf. A.J.M. v. State, 746 So.2d 1222, 1224-25 (Fla. 3d DCA 1999) (noting that officers who observed juveniles “hanging out” after midnight in violation of a curfew ordinance had authority to take the juveniles into custody); see C.H.S. v. State, 795 So.2d 1087, 1091-92 (Fla. 2d DCA 2001) (Altenbernd, J., concurring) (observing that without regard to the constitutionality of a curfew ordinance, an officer discovering teens “hanging out” at 2:30 a.m. should have the authority to stop the children and transport them home).

A.L.’s consent to the pat-down search and his unprompted revelation that he possessed a bag of marijuana and a pipe were voluntary, untainted by an illegal detention. The evidence discovered in the search should not have been suppressed. See State v. Brown, 619 So.2d 378 (Fla. 2d DCA 1993).

Reversed and remanded for further proceedings.

WHATLEY and CANADY, JJ., Concur.

      . The circuit court determined that the deputy did not have "probable cause” to stop A.L. Of course, probable cause is not the standard by which to judge the legality of an investigatory stop. The standard is whether "the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citing § 901.151, Fla. Stat. (1991)). We believe the circuit court’s statement was a "slip of the tongue” and we have analyzed this issue under the correct standard.


text:
    Robert T. BACON, Appellant, v. Tammy L. BACON, Appellee.
    No. 1D06-4043.
    District Court of Appeal of Florida, First District.
    May 21, 2007.

      James L. Chase, Pensacola, for Appellant.
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

“[T]he law is well settled that an alimony award may be modified only upon a determination that the needs of the receiving spouse, as originally established by the parties’ standard of living during the marriage, have changed.... A judgment providing for automatic increases in alimony violates this principle because it allows alimony to be increased, and the award thereby modified, without a determination of change in the recipient’s need.” Hamilton v. Hamilton, 552 So.2d 929, 931 (Fla. 1st DCA1989) (citations omitted). Here, a discrepancy exists between the circuit court’s final dissolution order and the parties’ property settlement agreement regarding which party will be responsible for payments on the Dodge Durango. Regardless of which party makes the vehicle payments, one thing is certain-the former wife’s needs will not increase upon the vehicle obligation being paid. Accordingly, we strike the final order’s prospective, automatic $800 per month increase in alimony. The order is affirmed in all other respects.

AFFIRMED in part; REVERSED in part.

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


text:
    Jerry A. RIDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6195.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.

      James Marion Moorman, Public Defender, and Deborah K. Bruckheimer, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jerry Ridley challenges a sentence for a misdemeanor conviction and a cost order imposed after our reversal and remand in his first appeal in this case. See Ridley v. State, 911 So.2d 217 (Fla. 2d DCA 2005). In 2003, Ridley pleaded no contest to two felony charges and one misdemeanor charge and was convicted and sentenced. In Ridley’s first appeal we reversed the habitual offender sentences imposed for the felonies because it was not clear from the record that he qualified as a habitual offender. Because Ridley had not challenged the propriety of his habitual offender designation at sentencing, we remanded to allow the State to present evidence on this issue, and for the court to determine whether the habitual offender sentences were proper. Id. at 218.

Thus, our reversal and remand involved only Ridley’s habitual offender sentences for the felony convictions. In this appeal, Ridley does not contest the sentences imposed on remand for the felonies, but instead he challenges his sentence for the misdemeanor conviction and a cost order. That sentence and the cost order became final on the date of our mandate in the first appeal, October 20, 2005. We recognize that, on remand, the circuit court purported to reimpose the original sentence for the misdemeanor conviction and to waive the costs that had been imposed at the first sentencing hearing. But that sentence and the cost order were not within the scope of our reversal and remand. The court had no jurisdiction to revisit those matters absent some rule or statute that would allow it to do so. See Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965); Rodriguez v. State, 441 So.2d 1129, 1140 (Fla. 3d DCA 1983) (Baskin, J., dissenting). Florida Rule of Criminal Procedure 3.800(c) would have permitted Ridley to seek a modification of his sentence within sixty days of the date of our mandate in his first appeal, but he did not do so. See Seward v. State, 912 So.2d 389 (Fla. 2d DCA 2005).

Accordingly, we affirm. The misdemeanor sentence and the cost order imposed at Ridley’s original sentencing hearing, which were affirmed when the mandate issued in his first appeal, remain in effect.

ALTENBERND and LaROSE, JJ., Concur.


text:
    Weston COLEMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 2D05-602, 2D06-938.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

This court has consolidated two interrelated appeals filed by Weston Coleman. In case number 2D05-602, Mr. Coleman was permitted a belated appeal of his judgment and sentence for failure to appear in circuit court case number 01-7060. We affirm the judgment. In case number 2D06-938, Mr. Coleman appeals a resen-tencing that occurred involving circuit court case number 01-7060 and another case, circuit court case number 00-11813. This resentencing occurred pursuant to this court’s opinion in Coleman v. State, 898 So.2d 997 (Fla. 2d DCA 2005). We affirm the sentences imposed.

Affirmed.

ALTENBERND, SALCINES, and WALLACE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Edward G. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3944.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.
   SILBERMAN, Judge.

Edward G. Robinson appeals the summary denial of his February 2006 motion for postconviction relief that he filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings because the documents attached to the postconviction court’s order do not conclusively refute Robinson’s claim.

Robinson sought relief based on a claim of newly discovered evidence. He alleged that a prison inmate had recently admitted to committing the crimes for which Robinson is in prison. He attached to his motion an affidavit of the other inmate containing the purported admission.

The postconviction court ordered the State to respond to Robinson’s motion. The State argued that Robinson had filed a prior postconviction motion raising other claims, which resulted in an evidentiary hearing. The State contended that the judge who conducted the earlier hearing denied relief after considering trial testimony that identified Robinson as the perpetrator of the crimes. The State asserted that in light of the result of the prior proceeding, Robinson’s motion should be denied because the prison inmate’s admission would not likely produce an acquittal at any retrial. The State attached to its response excerpts from a 1996 postconviction hearing, consisting solely of the prosecutor’s argument as to the identification evidence that had been presented at trial and the presiding judge’s comments regarding that testimony in relation to the issues then before the court.

Based on the State’s response, the post-conviction court denied Robinson’s current motion. In its order, the court referred to the earlier postconviction hearing and what it understood had been the “overwhelming evidence” presented at trial that identified Robinson as the perpetrator. The court attached the 1996 transcript excerpts to its order but did not attach any trial transcripts. Further, it appears that the court did not review the trial transcripts.

Although the excerpts from the 1996 hearing describe identification evidence that had been presented at Robinson’s trial, the issues considered at the 1996 hearing differ significantly from the issue now presented by Robinson. Most notably, the 1996 hearing did not involve an evaluation of the admission now relied on by Robinson in relation to the trial evidence. Because the documents attached to the postconviction court’s order do not conclusively establish that the inmate’s purported admission was not likely to produce an acquittal on retrial and do not otherwise conclusively refute Robinson’s claim, we reverse and remand for further proceedings. See Kendrick v. State, 708 So.2d 1011, 1012-13 (Fla. 4th DCA 1998). On remand, the postconviction court must reconsider Robinson’s motion and either attach those portions of the record that conclusively refute his claim or conduct an evidentiary hearing to resolve the claim.

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


text:
    Carmelin Crusade DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1534.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Wallen v. State, 932 So.2d 493 (Fla. 4th DCA 2006).

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Angel L. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2168.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Carey Haughwout, Public Defender, and Allen A. Ambrosino, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 04-1703CF.

Affirmed. See Henley v. State, 719 So.2d 990 (Fla. 4th DCA 1998); Dennis v. State, 696 So.2d 1280 (Fla. 4th DCA 1997).

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Daniel Ely PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3118.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In Perez v. State, 919 So.2d 347 (Fla. 2005), cert. denied, — U.S. -, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006), the Florida Supreme Court affirmed appellant’s convictions for first-degree murder, armed burglary of a dwelling with assault, and armed robbery but reversed Perez’s death sentence on the first-degree murder count and remanded for a new penalty phase proceeding. Id. at 382. On remand, the state agreed not to seek the death penalty, and appellant agreed to accept a life sentence on condition that he be allowed to preserve all his “appellate rights,” including a claim regarding the sufficiency of Miranda warnings that the Florida Supreme Court determined had not been preserved for review. Id. at 359.

Because the state agreed not to seek the death penalty, the trial court imposed the only alternative, a life sentence without the possibility of parole. § 775.082(1), Fla. Stat. (2001). The trial court also “reconfirmed” the conviction and rendered a new judgment on the first-degree murder count nunc pro tunc to the date of the original judgment.

We grant the public defender’s Motion to Withdraw as Counsel and affirm the life sentence in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree that all issues regarding the convictions in this case are res judicata and could not be “preserved” following the Supreme Court’s limited remand for a new “penalty phase proceeding.” Perez, 919 So.2d at 382. The trial court should not have entered a “reconfirmed” judgment for the first-degree murder conviction.

Accordingly, we remand with instructions for the trial court to vacate its July 21, 2006 judgment. The original judgment of conviction stands, and the life sentence is affirmed.

KLEIN, GROSS and HAZOURI, JJ., concur.

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


author: TAYLOR, J.

text:
    OCEAN COMMUNICATIONS, INC., and Olympusat, Inc., Appellants, v. Robert BUBECK and Market Link of South Florida, Inc., Appellees.
    Nos. 4D06-587 and 4D06-2603.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied June 19, 2007.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, and Donald S. Hershman of Donald S. Hershman, P.A., Boca Raton, for appellants.
    John L. Bryan, Jr. of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellees.
   TAYLOR, J.

Plaintiffs, Ocean Communications, Inc. and Olympusat, Inc., appeal a final judgment denying their claim for restitution of monies paid to Defendants, Robert Bubeck and Market Link of South Florida, Inc., in this action for breach of contract. The trial court found that defendants materially breached their contract with plaintiffs but ruled that plaintiffs were not entitled to restitution because there was an express contract between the parties. Because we conclude that plaintiffs properly sought restitution under their amended breach of contract count, we reverse and remand for a determination of the amount of restitution, if any, owed to plaintiffs.

On October 26, 1997, plaintiffs entered into an agreement with Robert Bubeck. Under the terms of the agreement, Bu-beck was to work as an agent for plaintiffs to find “remnant time” on TV networks to sell to infomercial and shopping networks or other programming channels. Bubeck was to receive twenty-five percent commission on net profits on those deals.

On December 27, 2000, the parties entered into a second agreement, whereby Bubeck would work as an independent contractor for plaintiffs to coordinate advertising sales for the company and develop an infomercial network. Bubeck was to be compensated with a monthly salary, equity in the company, and commission on the advertising sales and on the profits from the infomercial network. The agreement further provided that Bubeck was to “phase out” over the year his consulting responsibilities with CN8.

Plaintiffs filed a complaint against defendants for injunctive relief for breach of non-competition agreements, money damages for breach of contract, and unjust enrichment. Under the unjust enrichment claim, plaintiffs asserted that Bubeck and his company, Market Link of South Florida, Inc., were unjustly enriched by plaintiffs’ payments to them in the sum of $387,805.33 under the agreement between December 27, 2000 and November 4, 2002. Plaintiffs demanded a judgment of restitution in this amount.

At trial, the parties stated that they had stipulated to a number of issues, and plaintiffs contended that only one major legal issue remained: “whether or not they’re entitled to restitution when there’s a contract.” In closing arguments, plaintiffs stated that they were pursuing a breach of contract claim, seeking return of $17,000 to $22,000. In addition, they sought recovery for unjust enrichment. Ocean stated its position regarding the unjust enrichment claim as follows:

That the major function that Mr. Bu-beck had been retained to perform underneath the terms and conditions under the second agreement, was to produce advertising revenue for this new creature, Olympusat. He didn’t do that. He was paid a fairly handsome monthly stipend, I think that started out $4,000 and then went to 7,000 and went to 10,000. The proof has been, and I think he admitted that he has received, in terms of monthly salary in round numbers, about a total of $176,000.

Plaintiffs sought return of the $176,000 paid in monthly salary. The trial court rejected plaintiffs’ argument, reasoning that that there could be no recovery for unjust enrichment when there is an express contract. Thereafter, plaintiffs moved to amend their contract damages claim to state a claim for $176,000. The court granted the motion.

In its final judgment, the court found that plaintiffs had cause to terminate Bu-beck for violation of the 2000 agreement by continuing to pursue personal business, which was prohibited by the agreement. The court concluded that Bubeck had breached the 2000 agreement by competing with plaintiffs and receiving money that was owed to plaintiffs. The court found, however, that plaintiffs were not entitled to restitution, “as restitution is an equitable remedy, and there is an actual contract between the parties in this case.” Instead, the court found plaintiffs to be due $7,000 received by defendants in 2002. The court further found that although plaintiffs were discharged from making payments under the 2000 agreement once Bubeck had breached the agreement, plaintiffs were still responsible for making payments under the 1997 letter agreement. Pursuant to the 1997 agreement, the court found defendants to be due $93,607. The court concluded the final amount due to defendants to be $86,607 ($93,607 less $7,000).

Plaintiffs argue that the trial court erred when it found that Bubeck materially breached the parties’ contract but concluded that restitution was not an available remedy. Whether restitution is an equitable remedy not awardable for breach of an express contract is a question of law which we review de novo. See Bell v. Indian River Mem. Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001) (holding that review of a question of law is de novo).

In Beefy Trail, Inc. v. Beefy King International, Inc., 267 So.2d 853, 856 (Fla. 4th DCA 1972), we recognized three distinct remedies for breach of contract: damages, restitution, and specific performance. We explained the distinction between a damages remedy and a remedy of restitution thusly:

The purpose of damages is to put the injured party in as good a position as he would have occupied had the contract been fully performed. In this context the injured party is considered to be “affirming” the contract. The purpose of restitution, however, is to require the wrongdoer to restore that which he has received and thus tend to put the injured party in as good a position as he occupied before the contract was made; in this context the injured party may be said to have considered the contract as “terminated” or “ended.”

Id. at 857; see also McCray v. Murray, 423 So.2d 559, 561 (Fla. 1st DCA 1982) (holding that where there is a total breach of contract the plaintiff may elect between a remedy that “ ‘will put him in the same position as he was immediately prior to making the agreement’ ” and one that “will place him in the position he would have been if the contract had been completely performed”) (quoting Sundie v. Lindsay, 166 So.2d 152, 153 (Fla. 3d DCA 1964)).

Defendants correctly state that a plaintiff cannot pursue an equitable theory, such as unjust enrichment or quantum me-ruit, to prove entitlement to relief if an express contract exists. See, e.g., Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984) (“It is well settled that the law will not imply a contract where an express contract exists concerning the same subject matter.”); In re Estate of Lonstein, 433 So.2d 672, 674 (Fla. 4th DCA 1983) (same). A contract implied in law, or “quasi contract,” operates when there is no contract “to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation.” Commerce P’ship. 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So.2d 383, 386 (Fla. 4th DCA 1997).

Restitution is available as a type of recovery, however, when there has been a breach of an express contract. Indeed, we stated in Beefy Trail that proof of breach of contract is a necessary element of restitution:

This determination [of a restitutionary interest] is dependent upon the existence or nonexistence of any evidence relating to a material breach because demonstration of such a breach is a prerequisite under the restitution theory.

267 So.2d at 857 (citing CoRBin on Contracts, Vol. 5, s. 1104); see also Timberland Consol. P’ship. v. Andrews Land & Timber, Inc., 818 So.2d 609, 611 (Fla. 5th DCA 2002) (a party to a contract who justifiably refuses to perform because his duties have been discharged by the other party’s breach may seek restitution for any benefit he has conferred by part performance in excess of loss caused by his breach); Restatement (Second) of Contracts § 373 (“[0]n a breach by non-performance that gives rise to a, claim for damages for total breach or on a repudiation, the injured party is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance.”).

Plaintiffs argue that defendants have misstated the issue on appeal to be whether an express contract bars an unjust enrichment claim. They point out that the trial court permitted them to amend their breach of contract claim at trial to conform to the evidence, and that they sought restitution for the compensation they paid to defendants under the amended breach of contract claim, not under their count for unjust enrichment.

Defendants counter that, even if restitution were an available remedy, it is impossible to grant such relief because there is no way that plaintiffs could return the benefits they reaped from defendants’ part performance. In Beefy Trail, we stated:

if restitution is sought the plaintiff must return to the defendant any part performance of value rendered by defendant; such part performance must be allowed as a credit to the defendant as against the amount alleged owed to the plaintiff as restitution for the breach.

267 So.2d at 858. Citing this case, plaintiffs argue that defendants should be credited only with the reasonable value of their performance. The trial court did not make any findings regarding the value of defendants’ services between the time of the breach and November 4, 2002, the date after which there was no breach, according to the final judgment. On remand, the trial court can hold an evidentiary hearing to determine the value of defendants’ services, which can be used to offset plaintiffs’ restitutionary recovery.

Reversed and Remanded.

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

      . The parties agreed by stipulation not to pursue this count.


author: SHAHOOD, J. GROSS, J.,

text:
    Armando RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3782.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Jeanne Baker of Jeanne Baker Attorney-ai>-Law, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Armando Rodriguez, was charged by the Office of the Statewide Prosecutor by amended information with one count of organized scheme to defraud, thirty-two counts of grand theft cargo, and seventeen counts of offense against computer user. After being found guilty of all counts following a jury trial, the trial court dismissed the cargo theft counts on the ground that conviction of those counts together with conviction for organized scheme to defraud would constitute double jeopardy.

Appellant now appeals the count of organized scheme to defraud and the seventeen counts of offense against computer user. Appellant also appeals the restitution order entered by the trial court. We affirm in part, reverse in part, and remand for an evidentiary hearing on the issue of restitution.

Appellant was the warehouse manager for Tropieana Products, Inc.’s Chilled Direct Delivery Center in Miramar. He was responsible for the operations of the warehouse and his duties included ordering products and buying equipment. Appellant also put orders together and ensured that the product got loaded onto Tropicana’s distribution trucks or the trucks of independent distributors correctly and on a timely basis. Part of appellant’s responsibility was to make sure the inventory was accurate and there was not any loss. Appellant had an assistant warehouse manager and four other people working under him.

Tropicana’s computerized inventory system was known as the Distribution Control System (“DCS”). Appellant was trained on this system in November 1999. Linda Gaunt, a training manager for Tropieana, showed appellant how to order and receive inventory consistent with his job x*esponsi-bilities.

The DCS system had a function whereby a user could adjust the inventory in the computer to match the actual physical inventory in the warehouse. The codes for these upward or downward adjustments were 924 and 925. These adjustments were generally used to account for small variations that tended to eventually balance each other out. Only administrative staff were authorized to make 924 and 925 adjustments. Carmen Saavedra, the office manager, was the only one who had the training and authority to make 924 and 925 adjustments in summer 2003.

Gaunt therefore did not show appellant how to make 924 and 925 inventory adjustments at the time of his training. Gaunt gave appellant a manual which did not contain information on how to do 924 or 925 adjustments. Gaunt had specifically removed this information.

J.C. Alvarez owned Alcon Distributors (“Alcon”), one of the independent distributors doing business with Tropieana. Appellant and Alvarez were friends. Appellant approached Alvarez in summer 2001 and asked if he wanted to buy cases of product at a discount. They began with small orders. Alvarez would place an order. The legitimate part of the order from Tropieana would be marked for “Alvarez.” This order would be placed with appellant or one of the other employees authorized to take product orders. The orders placed pursuant to Alvarez’s separate arrangement with appellant were only ordered through appellant and would be marked “J.C.” Both orders would be given to Alvarez at the time of pickup. Alvarez paid Tropieana for the orders placed with Tropicana. However, Alvarez would pay half of Tropicana’s regular price for the “J.C.” orders directly in cash to appellant. Appellant told Alvarez that their arrangement was made possible through an adjustment to the inventory on the computer.

Appellant and his assistant would take a physical count of the warehouse inventory at the end of every week. The inventory checks prior to Tropicana’s move to a new facility in June 2003 were correct for the most part and any variances were small enough that they did not cause a shortage issue for the company.

Tropieana moved its warehouse to a new facility in June 2003. Appellant and the sales center manager, Franc Chaviano, took a physical inventory just prior to the move. After they finished moving, appellant had to take a sudden emergency leave for personal reasons, and was therefore unable to take another inventory. Chavi-ano and appellant’s assistant took a physical inventory. This inventory revealed huge variances when checked against the office manager’s computerized inventory. Chaviano and appellant’s assistant conducted a second and a third inventory in an attempt to ascertain why the count could be incorrect. In the process of investigating how such a large variation could exist between the physical count and computer inventory, it was discovered that adjustments had been made to the computer inventory in very large amounts using appellant’s user ID code.

Daryl Rashkin, Tropicana’s senior manager for security, was informed of the situation and became involved in the investigation to determine who was responsible and the magnitude of the loss. Rashkin installed two surveillance cameras looking down on two of the loading bays. He installed a third camera in the ceiling tile of appellant’s office over the computer. The cameras were connected to a digital recording device maintained in Chaviano’s office. All of the recordings were date and time stamped by the DVD recorder.

Each day after the employees went home, Rashkin reviewed the recordings for the day to examine what activities were occurring at the two loading dock bays under surveillance. Rashkin and Chaviano would compare the day’s order forms and the DCS transaction report against what the video showed was actually being loaded onto the particular trucks.

Rashkin came to the conclusion that Alcon and another independent distribution company called Kari & Sons were the two distributors involved. Appellant’s father-in-law owned Kari & Sons. Appellant frequently took the orders for both Alcon and Kari & Sons. There was a substantial discrepancy between what these companies ordered for the day and what was actually being loaded onto their trucks. Almost without exception, the DCS transaction reports showed that the amount of 925 downward adjustments removing product from the inventory on the DCS system matched very closely to what the video showed being loaded onto the trucks. The DCS adjustment reports for the day fit very closely with the video surveillance of appellant at his computer.

The video surveillance covered the time period from July 14, 2003, to August 11, 2003. The videos showed either no order, with a large amount of product going into the trucks, or a small order with a larger amount of product going onto the trucks. In each instance, appellant was in the bay loading the trucks, and then on the computer making transaction adjustments. These orders were almost always for Alcon and Kari & Sons. The retail value of the product stolen during this time period was approximately $280,000. The wholesale value was approximately $140,000.

Appellant initially argues that his conviction for organized scheme to defraud was based on insufficient evidence because there was no evidence he made a communication inducing the handing over of property. Appellant was charged with a violation of section 817.034(4)(a)l., Florida Statutes (2003), which makes it a first-degree felony to obtain property by means of a scheme to defraud if the aggregate value of the property obtained is $50,000 or more. Appellant argues that this statute was intended to punish those who communicate fraudulent information to cause or induce the payment of money for worthless purposes.

The notion that section 817.034(4)(a) requires a defendant to have made a communication has previously been raised and rejected. In State v. Summerlot, 711 So.2d 589, 592 (Fla. 3d DCA 1998), the court held that “the state is not required to prove that a defendant ‘communicated’ as a part of a scheme to defraud charged pursuant to section 817.034(4)(a).” See also Pizzo v. State, 910 So.2d 287, 290 (Fla. 2d DCA 2005).

We hold that communication is not required to sustain a conviction under section 817.034(4)(a), Florida Statutes, and affirm appellant’s conviction for organized scheme to defraud.

Appellant next argues that the trial court erred in denying his motion for judgment of acquittal as to the offense against computer user counts because the evidence did not prove unauthorized access. Appellant argues that the evidence showed that he had access to the system, and the State’s argument that he was not authorized to make 924 and 925 adjustments is a conceptually and legally distinct argument that he was not authorized to alter data. The State claims that authorized access includes authorized access to make use of any resources of a computer. The State maintains that the evidence showed appellant had authority to enter the DCS system, but no authority to access DCS to perform 924 or 925 adjustments. The State claims this falls under the making use of a “resource” of the Tropicana DCS system.

The information alleged that appellant “did willfully, knowingly and without authorization access or cause to be accessed a computer, computer system or computer network, to wit: the computer system located at the Tropicana Products, Inc., Mir-amar Sales Center.... ” Section 815.06(l)(a) and (2)(b)2., Florida Statutes (2003), provides that anyone who “willfully, knowingly, and without authorization ... [accesses or causes to be accessed any computer, computer system, or computer network ... for the purpose of devising or executing any scheme or artifice to defraud or obtain property” commits the offense. The definitions section supplies the meaning of the word “access” as used in the chapter: “ ‘Access’ means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.” § 815.03, Fla. Stat. (2003).

The evidence showed that appellant made the adjustments at a computer he was authorized to use, that he was authorized to access the system by using his password, and that he was authorized to access the network. However, it is also clear that appellant was not authorized to access the computer function he accessed in order to make inventory adjustments. Mr. Chaviano, Ms. Saavedra, and Ms. Gaunt all testified that appellant did not have the authority or training to make 924 and 925 adjustments. The issue is whether appellant’s actions violated the statute.

We note that federal statutes have addressed this situation by adding “exceeding authorized access” to the list of proscribed conduct. See 18 U.S.C. § 1030(a) (2002); 18 U.S.C. § 1030(e)(6) (2002) (defining “exceeds authorized access” as “accessing] a computer with authorization and [using] such access to obtain or alter information in the computer that the ac-cesser is not entitled so to obtain or alter”). Our statute makes no provision addressing such conduct. Additionally, subsection 815.06(6), Florida Statutes (2003), indicates that appellant’s conduct is outside the scope of section 815.06. That subsection provides: “This section does not apply to any person who accesses his or her employer’s computer system, computer network, computer program, or computer data when acting within the scope of his or her lawful employment.” § 815.06(6), Fla. Stat. (2003).

In this case, the evidence was insufficient to prove that appellant accessed the computer, computer system, or computer network without authorization. We reverse and remand appellant’s convictions for offense against computer user and direct the trial court to enter a judgment of acquittal as to these counts.. •

Appellant next argues the trial court erred in entering a restitution order based on testimony that was impermissibly speculative and also erred in using the wrong measure to arrive at the amount of restitution. We agree.

Appellant first contends that the trial court’s order must be reversed because the State introduced “mere opinion” estimates and failed to introduce documentary evidence to support the restitution amount. On this issue the State presented the testimony of William Thompson, vice president and general manager for Tropicana Chilled Direct Store Delivery. Thompson was asked how much in retail the company lost due to appellant’s actions during the period charged in the information. Thompson placed the amount at “about $280,000.” On cross-examination, Thompson reiterated that that amount was the sale price, “the price that retailers would have paid the route salespeople for the product.”

Daryl Rashkin testified that each day after the employees left the facility, he and Chaviano compared the order forms against what the videotape showed was actually being loaded into the trucks. Rashkin testified that “[t]he value of the product that was stolen during that period was $280,000.00.” That amount was retail value. Rashkin put the cost to the company of producing those goods at “approximately $140,000.00.” Rashkin never specifically testified that he used the process of adding up the differences between the amount paid and the amount that should have been paid in arriving at those figures.

The mere speculation or opinion of a victim as to the amount of their loss is insufficient to sustain a restitution order. See Glaubius v. State, 688 So.2d 913, 916 (Fla.1997); Peters v. State, 555 So.2d 450, 451 (Fla. 4th DCA 1990). We addressed a similar case in Bennett v. State, 944 So.2d 524 (Fla. 4th DCA 2006). In Bennett, a private investigator hired by the victim testified that the victim spent “probably ... between eighteen and twenty-thousand dollars” on the investigation. 944 So.2d at 526. As to the victim’s protection expenses, the investigator testified: “I would guess he probably spent a hundred-thousand dollars.” Id. The victim himself testified that he was “out-of-pocket over a hundred-thousand dollars because of Mr. Bennett’s actions against me.” Id. We held such speculative testimony an inappropriate basis for a restitution award. Id. We hold the testimony in the present case regarding Tropicana’s losses similarly speculative and therefore an inappropriate basis for a restitution award.

Appellant also claims the wrong measure was used to arrive at the amount of restitution. Appellant’s argument rests on the fact that the Tropicana warehouse distributed some of the product to retailers itself using its own trucks, and also sold some of the product to independent distributors at the warehouse. These independent distributors would get a discounted price on the product, and then mark up the product to turn a profit. The scheme to defraud in this case involved the independent distributors.

The record supports appellant’s assertion that the restitution order was based on the price the product would have fetched if Tropieana was selling it directly to retailers rather than to the independent distributors, as was the case here. Thompson explicitly testified that $280,000 was the price Tropieana would have received for the product from a retailer. Fair market value is generally the correct value to be used in determining restitution. See Walters v. State, 888 So.2d 150, 151 (Fla. 5th DCA 2004). However, restitution is not intended to provide a victim with a windfall. Glaubius, 688 So.2d at 916. In State v. Hawthorne, 573 So.2d 330, 333 (Fla. 1991), the supreme court foresaw that there would be situations where fair market value would not be the correct measure of restitution. The court held that trial courts are not tied to fair market value, but may exercise discretion to further the purposes of restitution. Id. at 333. It would be contrary to the due process principles cited by the supreme court in Glaubius to hold that appellant must pay a higher restitution amount than what the independent distributors would have paid for the product.

We therefore remand the issue of the restitution order with directions to the trial court to conduct an evidentiary hearing to determine the amount the independent distributors involved would have paid if properly billed.

We hold all other issues raised by appellant and not addressed in this opinion to be without merit and affirm.

Affirmed in part; Reversed in part; and Remanded for further proceedings.

MAY, J., concurs.

GROSS, J., concurs in part and dissents in part with opinion.

GROSS, J.,

concurring in part and dissenting in part.

I concur in the majority’s resolution of the organized scheme to defraud issue.

As to the section 815.06, Florida Statutes (2003) violation, I concur with the reversal because I believe that appellant fell under the section 815.06(6) exclusion— he was an employee who “accessefd] his ... employer’s computer system when acting within the scope of his ... lawful employment.” Part of appellant’s job duties allowed him access to the computer system. My reading of the statute is that it applies to hackers who attack a computer system from the outside.

I dissent as to the reversal of the restitution order. The testimony about the loss came from a competent witness who did not speculate. $280,000 was the fair market value of the property. In most cases the “victim’s loss and the fair market value of the property at the time of the offense will be the same.” State v. Hawthorne, 573 So.2d 330 (Fla.1991). Under Hawthorne, this is not a case where a court should depart from the market value approach.


text:
    Junior Maxine JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1131.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Junior Maxine Joseph timely appeals a conviction of grand theft auto. We reverse, finding the State failed to present sufficient evidence to prove Joseph possessed the allegedly stolen vehicle.

This case arose when Rafael Hernandez reported his vehicle stolen to the police. He described it as a red two-door sport model Ford Explorer with grey interior, a five-speed transmission and a worn cruise control switch. Two days later, a police officer observed Joseph driving a red two-door Ford Explorer. When Joseph ran a stop sign and began exceeding the posted speed limit, the officer ran the tag on the vehicle, discovered that the tag was not assigned to it, and activated his siren. Joseph, however, did not pull over, drove through another stop sign without stopping and, at one point, crossed-over a grassy median into oncoming traffic. After about fifteen minutes, the officer, with the help of colleagues, apprehended Joseph and arrested him.

The police, apparently under the belief that the vehicle was the same one reported stolen by Hernandez, contacted Hernandez and informed him that they had recovered his Explorer. In spite of this, Hernandez never attempted to retrieve the vehicle or identify it as his because he had since changed residences, which in turn prevented the police from notifying him of the vehicle’s presence until so much time had passed that impound charges became prohibitively expensive.

The State charged Joseph by information with, among other things, grand theft auto, fleeing or attempting to elude (high speed reckless), and driving while license suspended. At trial, Joseph moved for judgment of acquittal as to the grand theft auto charge, but his motion was denied. He was ultimately convicted of the above offenses and sentenced to 5 years in Florida State Prison for grand theft auto with credit for 192 days time served, a concurrent sentence of 10 years in prison for attempting to elude the police, also with credit for 192 days time served, and time served for driving with license suspended. On appeal, Joseph challenges only his conviction for grand theft auto.

In moving for a judgment of acquittal, a defendant “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The relevant standards as to this issue have been set forth by the Florida Supreme Court in State v. Law, 559 So.2d 187, 188-89 (Fla.1989) (citations and footnote omitted):

Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.
It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

In the instant case, Joseph was charged with and convicted of grand theft auto under section 812.014, Florida Statutes (2005). To convict a person of grand theft auto, the State is required to present evidence that the vehicle in possession of that person was the vehicle identified by the victim as stolen. Rossi v. State, 717 So.2d 611, 611 (Fla. 4th DCA 1998). We find that the State presented insufficient evidence to prove the vehicle Joseph was apprehended in was the same one reported stolen by Hernandez. The State failed to meet its burden under State v. Law, supra, since Hernandez never identified the vehicle as his and there was no evidence of vehicle identification number confirmation. Cf. C.O. v. State, 557 So.2d 637, 638 (Fla. 3d DCA 1990) (reversing an adjudication of delinquency when the State failed to present a prima facie case that the property stolen was the same as that found in defendant’s possession). Accordingly, we reverse his conviction for grand theft auto.

REVERSED.

WARNER, POLEN and HAZOURI, JJ., concur.

      . Section 812.04 provides in pertinent part:
      (1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit therefrom.
      (b) Appropriate the property to his own use or to the use of any person not entitled thereto.
      (2)(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is: A motor vehicle ...


text:
    Eric ACOSTA a/k/a Ruiz Acosta a/k/a Jose Rodriguez, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4307.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Eric Acosta appeals his conviction and sentence for one count of burglary while armed with a firearm, two counts of burglary of a dwelling, and three counts of grand theft. We affirm.

Acosta argues first that the trial court erred in granting the state’s motion to consolidate the three informations in this case. We find no abuse of discretion in the consolidation.

Acosta also contends he was illegally sentenced as a prison releasee reoffender (PRR) on three grounds: (1) proof of his prison release date was based solely on hearsay, (2) the use of that hearsay violated his rights under the confrontation clause, and (3) his sentences violate his Sixth Amendment rights as explained in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm Acosta’s PRR sentence. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006); Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005), rev. denied, 915 So.2d 1196 (Fla.2005).

Affirmed.

WARNER, KLEIN and HAZOURI, JJ., concur.


author: SHAHOOD, J.

text:
    J.M.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1142.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, J.M.C., a child, was charged by a petition for delinquency with loitering or prowling and possession of Xanax. Appellant appeals the denial of his motion to suppress as well as the denial of his motion for judgment of dismissal on the loitering or prowling charge. We affirm.

At the time of trial, the parties agreed that the trial court would hear testimony and argument on the motion to suppress at the same time as the trial testimony.

The State called Officer Kenneth Ufkin. Officer Ufkin was on patrol August 3, 2005, when he received a dispatch at approximately 12:00 or 12:30 in the morning regarding a Hispanic male, bushy hair, no shirt, baggy pants, pushing a riding mower westbound on First Street. The officer responded to the location and saw a lawnmower abandoned in the intersection and Officer Francis talking with a male out in the street. Beyond them, Ufkin saw a Hispanic, later identified as appellant, hiding in a ficus hedge. When Ufkin first spotted appellant, he pointed his light at him and appellant ran to the backyard. Appellant fit the description from the dispatch. Officer Ufkin ran to the backyard and located appellant behind the house, underneath a little hanging tree. Ufkin asked appellant why he was running and he responded with “f— you.” Ufkin continued to ask appellant questions and appellant responded “f— you, you’re gonna arrest me anyway, I didn’t do nothing.” Ufkin ordered appellant out of the bushes or else he was going to tase him. Appellant came out and Ufkin put handcuffs on him. After Ufkin placed appellant under arrest for loitering or prowling, Officer Rubin conducted a pat-down search of appellant. Ufkin saw Officer Rubin remove a prescription pill bottle from appellant and Ufkin identified that it contained pills of Xanax.

After Ufkin read appellant his rights, appellant agreed to speak with the officer regarding the investigation. Appellant told the officer that he found the lawnmower in somebody’s garbage and that he ran because of the pill bottle he had on him.

The State next called Stacy Macieko-wich, the person who had called about the suspicious activity. Around 12:00 in the morning, Maciekowich had gotten up to get a drink of water when she heard a noise and looked out of the window. She saw a young man fumbling with a riding mower. She called the police because she believed that the person was stealing the lawnmower.

The last witness to testify was Officer Joseph Rubin. Rubin responded to a dispatch at around 1:00 in the morning about a Hispanic male pushing a lawnmower down the road. Rubin arrived at the same time as Ufkin; Officer Francis was already at the scene talking to another Hispanic male. Rubin saw Ufkin proceed to the backyard of a residence and heard him give out orders to someone. After hearing the orders, Rubin went to Ufkin and helped him detain appellant. Rubin conducted a pat-down of appellant and discovered an orange pill bottle containing Xa-nax.

At the conclusion of the testimony, appellant moved for a judgment of acquittal, which was denied by the court. The court then addressed the motion to suppress. The court determined that Officer Ufkin had probable cause to arrest appellant for loitering or prowling and denied the motion to suppress.

Appellant urges the trial court erred in denying his motion to suppress the Xanax because the State’s evidence failed to show that Officer Ufkin had probable cause to arrest him for loitering or prowling. He further argues there was no evidence to support a reasonable belief that his behavior presented an imminent threat to the safety of property or people in the area.

The offense of loitering or prowling is defined under section 856.021, Florida Statutes (2005):

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

§ 856.021(1), Fla. Stat. (2005).

In E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999), this court explained that the State must prove the following two elements to establish the crime: “(1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; and (2) the loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” (Citing State v. Ecker, 311 So.2d 104, 106 (Fla.1975)). Because loitering or prowling is a misdemeanor, both elements of the offense must be committed in the officer’s presence prior to arrest. Grant v. State, 854 So.2d 240, 242 (Fla. 4th DCA 2003).

The time, location, and appellant’s actions upon discovery by the police satisfy the elements of the offense. See Battle v. State, 868 So.2d 587, 589 (Fla. 4th DCA 2004) (“Lurking in the dark by residences in the wee hours of the morning is unusual for law-abiding persons.”); Ecker, 311 So.2d at 106 (“alarm is presumed under the statute if, when a law officer appears, the defendant flees, conceals himself, or refuses to identify himself.”). We affirm as to the charge of loitering or prowling.

As for the motion to suppress, the pat-down of appellant occurred after he was arrested. A search incident to arrest is lawful if the officer has probable cause to arrest. See Brown v. State, 891 So.2d 1120, 1122 (Fla. 4th DCA 200 5). Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)).

The State argues that the court did not abuse its discretion when it denied the motion to suppress because based on Ma-ciekowich’s and Uflrin’s testimony, it was clear that Ufkin had sufficient probable cause to arrest appellant. Further, section 856.031, Florida Statutes, provides:

Any sheriff, police officer, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant in case delay in procuring one would probably enable such suspected loiterer or prowler to escape arrest.

§ 856.031, Fla. Stat. (2005). The warrant-less arrest was authorized by section 856.031 because appellant would have fled if the officer left to obtain a warrant. We agree and affirm as to the denial of the motion to suppress.

We accordingly affirm as to this and all other issues raised by appellant.

Affirmed.

GROSS and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    STATE of Florida, Appellant, v. J.M., a child, Appellee.
    No. 4D06-3352.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellee.
   KLEIN, J.

After J.M. was arrested for theft, the state agreed she could enter a pretrial intervention program, but a dispute subsequently arose as to whether J.M. had completed the program, and the state refused to drop the charges. J.M. moved to dismiss on the ground that she had successfully completed the program, and after an evidentiary hearing, in which there was a conflict as to performance of the conditions, the trial court granted her motion. The state appeals, arguing that the trial court did not have the statutory authority to dismiss the charges over the objection of the state. We agree and reverse.

It appears that the trial court may have failed to grasp the distinction between section 948.08(1-5), Florida Statutes (2006), which authorizes pretrial intervention in general, and section 948.08(6), which specifically covers, and is limited to, pretrial substance abuse intervention. The intervention program applicable here, which does not involve substance abuse, provides in section 948.08(5):

At the end of the intervention period, the administrator shall recommend:
(a) That the case revert to normal channels for prosecution in instances in which the offender’s participation in the program has been unsatisfactory;
(b) That the offender is in need of further supervision; or
(c) That dismissal of charges without prejudice shall be entered in instances in which prosecution is not deemed necessary.
The state attorney shall make the final determination as to whether the prosecution shall continue.

Section 948.08(6), which is limited to pretrial intervention for substance abuse, does not contain the emphasized provision leaving final determination as to prosecution up to the state. On the contrary, it provides that if the court finds that the defendant has successfully completed the program it shall dismiss the charges. We have previously recognized this distinction in State v. Gullett, 652 So.2d 1265 (Fla. 4th DCA 1995). We accordingly reverse.

WARNER and HAZOURI, JJ., concur.


text:
    Anthon MAGRAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3206.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See United States v. Wilson, 895 F.2d 168 (4th Cir.1990).

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Daniel MATOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2087.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Daniel Matos timely appeals an order revoking his community control. We find that the evidence presented by the State was insufficient to establish Matos violated the terms of his community control by failing to remain in his residence on May 26, 2004 at 10:00 p.m., and therefore we order the trial court to strike reference to this alleged violation from its revocation order. However, we affirm the order revoking Matos’ community control because Matos was found in violation of, and does not appeal, eight other counts. See Haygood v. State, 687 So.2d 318, 319 (Fla. 4th DCA 1997) (striking portion of order revoking community control because some violations were not supported by evidence, but affirming revocation because it was clear trial court would have revoked community control based solely on proper violations).

AFFIRMED and REMANDED with instructions.

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


text:
    Thomas SEEBER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1624.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      Arthur B. Brandt of Brandt & Gufford, Stuart, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Appellant filed, without reference to Florida Rule of Criminal Procedure 3.800(c), a motion simply titled “Motion to Modify Sentence.” The trial court treated the motion as a rule 3.800(c) motion and, after the sixty-day jurisdictional window expired, denied the motion for lack of jurisdiction. We dismiss the appeal as a non-appealable order. See State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004); Grosse v. State, 511 So.2d 688 (Fla. 4th DCA 1987), rev. denied, 519 So.2d 987 (Fla.1988).

GUNTHER, HAZOURI and MAY, JJ., concur.


text:
    Herbert Lee HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3801.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. This case is remanded, however, for entry of a written order of revocation of probation.

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Larry Gene GLADDEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3357.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Larry Gene Gladden, Jr., Coleman, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed., See Mendoza v. State, 948 So.2d 1005 (Fla. 4th DCA 2007).

SHAHOOD, GROSS and MAY, JJ„ concur.


text:
    Jevon FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3749.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Richard L. Rosenbaum of the Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of Ferguson’s claims for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, except that af-firmance is without prejudice to appellant’s right to file an amended motion in the trial court within thirty days of the issuance of this opinion, limited to grounds two and three (labeled four by Ferguson), addressing the requirement of availability of the witnesses, pursuant to Nelson v. State, 875 So.2d 579, 583-584 (Fla.2004)(“when a defendant fails to allege that a witness would have been available, the defendant should be granted leave to amend the motion within a specified time period”).

Affirmed.

GUNTHER, FARMER and MAY, JJ., concur.