author: TORPY, J.

text:
    J.M., Mother of A.F., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D05-3544.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2006.

      David T. Young of David T. Young, P.A., Rockledge, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
    Kelly A. Swartz and Thomas Wade Young, Orlando, for Guardian Ad Litem Program.
   TORPY, J.

In this parental rights termination case, the only issue that we need consider is whether the trial court erred by denying Appellant’s motion to set aside the final judgment because of insufficient service of process. We conclude that, because the Department did not conduct a diligent search for Appellant in an effort to effect actual service of process, constructive service was not proper. Therefore, we reverse the challenged order and remand this cause for further proceedings consistent with this opinion.

Appellant and the father of A.F. apparently had a tumultuous relationship. After an incident of domestic violence in February of 2004, during which the father choked Appellant, the Department sheltered A.F., who was then nine months old. Shortly thereafter, the Department filed a petition seeking the court’s declaration that the child was dependent as to Appellant and the father. Although the initial goal of the dependency case was reunification, Appellant made little, if any, progress towards completion of her case plan and had little contact with her child. Consequently, the Department sought termination of the parental rights of both parents by filing a petition for termination of parental rights on February 28, 2005.

The Department made no attempt to serve the termination petition upon Appellant by actual service. Instead, on March 9, 2005, the Department filed an “Affidavit of Diligent Search and Inquiry” evidencing attempts that it had made to contact Appellant in connection with the dependency proceedings in November and December of 2004 and in January of 2005. The affidavit had been executed by agents of the Department on January 28, 2005, approximately one month before the termination petition was filed.

Thereafter, the Department proceeded to serve the termination petition and summons by publication in The Florida Today newspaper. On April 8, 2005, proof of service by publication was filed in the lower court. The lower court entered a default against Appellant based upon her failure to appear in response to the published summons. A final judgment based upon the default subsequently entered. Appellant, thereafter, filed a motion to set aside the default based upon, among other things, insufficient service of process. When the lower court denied Appellant’s motion, this appeal timely ensued.

In a proceeding to terminate parental rights, personal service of the petition and summons on each parent is required, unless personal service “cannot be had” after diligent search and inquiry, in which case constructive service is authorized. § 49.021, Fla. Stat. (2005); Fla. R. Juv. P. 8.505(a)(1); M.J.W. v. Dep’t of Children & Families, 825 So.2d 1038, 1040—41 (Fla. 1st DCA 2002). When constructive service is employed, however, strict statutory compliance is imperative; otherwise, service is ineffective and any judgment based thereon is void or voidable. Shepheard v. Deutsche Bank Trust Co. Americas, 922 So.2d 340, 343 (Fla. 5th DCA 2006); Floyd v. Fed. Nat’l Mortgage Ass’n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998). It is the petitioner’s burden to show that constructive service was proper. Shepheard, 922 So.2d at 343. When challenge is made on the basis that a diligent search had not been conducted, it is the trial court’s duty to determine whether “the [petitioner] reasonably employed the knowledge at [its] command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance to acquire the information necessary to enable [it] to effect actual service.” Id. at 343-44.

Although the trial court made a finding that “the affidavit of diligent search was proper,” it made no attempt to determine whether the Department had actually conducted a diligent search. Instead, the trial court concluded that the motion to set aside should be denied because Appellant had failed to demonstrate excusable neglect and a meritorious defense. In reaching this legal conclusion, the trial court employed the wrong analysis. The requirement that a movant establish excusable neglect and a meritorious defense is not applicable when, as here, sufficiency of the service of process is the issue. Green Solutions Int’l, Inc. v. Gilligan, 807 So.2d 693, 696 (Fla. 5th DCA 2002) (proof of a meritorious defense and excusable neglect is not necessary when default is void because of failure to comply with due process requirements); Int’l Energy Corp. v. Hackett, 687 So.2d 941, 943 (Fla. 3d DCA 1997); Taito Corp. v. Ferris, 681 So.2d 1156, 1157 (Fla. 5th DCA 1996); Henry P. Trawick, Jr., Florida Practice and Procedure § 25-3 (2005 ed.).

Here, the record clearly bears out that the Department did not conduct a diligent search and inquiry. At all material times, the Department knew the precise location of Appellant’s place of employment. Indeed, the Department identified Appellant’s place of employment in its dependency petition. Furthermore, the record reflects that Appellant had executed a document, filed in open court, known as a “Permanent Mailing Address Designation and Warning.” (Emphasis added). In that document, Appellant provided a specific mailing address in Satellite Beach, Florida. Later, at the hearing on Appellant’s motion to set aside the default, Appellant testified that the Satellite Beach address had remained her mailing address throughout the dependency and termination proceedings. Appellant explained that the address was that of her best friend, who knew where Appellant could be located at any given moment and who forwarded to Appellant all mail received. At no time during the proceedings did Appellant ever inform the court that this written designation had changed.

The Department never attempted to deliver the termination petition to Appellant. Instead, it documented in its “Affidavit of Diligent Search and Inquiry” numerous purported attempts to contact Appellant prior to the filing of the termination petition. These included an attempt to contact Appellant at an address given to the Department by the child’s father and the child’s father’s probation officer. The Department also attempted to contact Appellant at an address it claimed was given to the court by a “parent” at a court proceeding on December 15, 2004. The record before us is ambiguous as to whether proceedings were conducted before the court on December 15, 2004. Nevertheless, it is unclear from the affidavit which “parent” purportedly gave this address. The Department made its last documented attempt to contact Appellant at a hotel more than one month before the petition was filed based upon information provided by an unidentified male. That attempt failed, however, because the Department’s representative could not find the hotel, even though the evidence reflects that the hotel is conspicuously located on a major thoroughfare in Cocoa Beach. Beyond that, the Department merely sent letters to the IRS and the Social Security Administration, to which no response was received.

We find these attempts at contact to be woefully deficient. The Department did not allege any attempt to contact Appellant at the address she had provided to the court in writing, nor did it attempt to contact Appellant at her place of employment. See Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678, 680 (Fla. 4th DCA 2004) (diligent search requires inquiry of persons likely or presumed to know the defendant’s location). Most of the attempts at contact appear to have been at addresses provided by, and for, the child’s father based on the Department’s assumption that the parents remained together. The Department knew, however, that the relationship between the parents of the child was tenuous at best, given the numerous incidences of domestic violence. Finally, sending letters to the IRS and the Social Security Administration, while ignoring the other information available to the Department, was clearly a specious attempt to locate Appellant.

REVERSED AND REMANDED.

THOMPSON and PALMER, JJ., concur.

      . The child's father consented to the termination of his parental rights.

      . The Department did not defend this aspect of the appeal on the merits. Instead it chose only to interpose a jurisdictional objection because the lower court had not entered a written order. To expedite the proceedings involving this young child, we relinquished jurisdiction to the trial court to enter a written order, which it did. Still, the Department made no attempt to address this issue on the merits. In fact, the Department's counsel inexplicably failed to appear at oral argument. The GAL's attorney, Mr. Young, did appear, however, and performed admirably.

      . A movant may, of course, seek alternative relief based upon this ground should the court determine that service was proper.

      . Appellant suggests that the Department’s lack of any attempt to serve the petition after it had been filed is a fatal flaw in service by publication. We need not address this argument, however, because we have concluded that a diligent search was not conducted.

      . The court reporter certified that no such proceedings were found, although the record shows that there might have been a status conference before the magistrate.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Linzell FEAGIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1555.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2006.
   PER CURIAM.

Linzell Feagin, Jr., appeals the posteon-viction court’s summary denial of his motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of his second claim without comment. In his first claim, Feagin argues that the trial court lacked jurisdiction to revoke his probation in case number 00-04789 because it had expired. This claim is cognizable under rule 3.850. See Fla. R.Crim. P. 3.850(a)(3); Sepulveda v. State, 909 So.2d 568, 571 (Fla. 2d DCA 2005). Because the record attached to the postconviction court’s order fails to conclusively refute Feagin’s first claim, we reverse and remand for further proceedings.

Feagin was convicted of giving false identification to law enforcement, two counts of battery on a law enforcement officer, resisting an officer with violence, and escape. According to Feagin, the trial court sentenced him as a youthful offender to two years’ imprisonment followed by two years’ probation. Feagin explains that his prison term expired on September 1, 2002, and that his probationary term ended on September 1, 2004. Thus, Feag-in contends that the trial court lacked jurisdiction to revoke his probation at a January 28, 2005, revocation hearing. The postconviction court denied his claim as conclusively refuted by the record.

However, the record attached to the postconviction court’s order does not conclusively refute Feagin’s claim because it contains conflicting sentencing documents. One document supports Feagin’s assertion that on March 20, 2001, he was sentenced to two years in prison followed by two years’ probation. A second document reflects that Feagin received a two-year prison sentence followed by three years’ probation. If Feagin received three years’ probation rather than two years’ probation, then clearly Feagin’s claim fails. But this cannot be resolved without an eviden-tiary hearing.

The postconviction court reasoned that even if Feagin received two years’ probation, his claim is conclusively refuted because a violation of probation (VOP) affidavit was filed and an arrest warrant was issued prior to September 1, 2004. Again, the record attached to the order does not support this finding.

The postconviction court attached the following records: a Polk County Sheriffs Office booking sheet for an arrest on November 3, 2002, for a new law violation; a November 3, 2003, warrant for different new law violations; a booking sheet for an arrest on December 15, 2003; an amended VOP affidavit that was filed on February 12, 2004; a March 11, 2004, order modifying his probation to include a ten-day weekend release program .(which resulted from his admission to the February 12, 2004, amended VOP affidavit); an unidentifiable document filed on April 19, 2004, requesting the arrest of Feagin for failing to appear for the weekend work release program; another booking sheet for an arrest on May 15, 2004; an August 18, 2004, warrant for more new law violations; a booking sheet for an arrest on September 13, 2004; a September 14, 2004, surety bond receipt; an October 27, 2004, warrant for more new law violations; a booking sheet for an arrest on November 1, 2004; a second amended VOP affidavit alleging new law violations filed on January 19, 2005; and February 11, 2005, sentencing documents for case 00-04789, which followed his revocation of probation.

Although these documents demonstrate that Feagin was periodically arrested and accused of violating his probation, they do not conclusively refute Feagin’s claim that the trial court lacked jurisdiction to revoke his probation on January 28, 2005, because the record does not reflect how the trial court disposed of his earlier VOP violations. If the trial court simply found a violation, but continued his terms of probation, then a two-year probationary term would have ended on September 1, 2004, as Feagin alleges. We note that the trial court’s March 11, 2004, order modifying Feagin’s probation to include a work-release program suggests that the court continued the terms of his probation each time Feagin violated it.

The record on appeal suggests that the arrest warrant and the VOP affidavit leading to the January 28, 2005, revocation hearing were filed on August 18, 2004, and January 19, 2005, respectively. In Se-pulveda, we recognized that “[b]oth the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period, and the mere filing of the affidavit is insufficient.” 909 So.2d at 570; see also Jean-Gilles v. State, 921 So.2d 860, 862 (Fla. 4th DCA 2006) (finding that filing a warrant, but not a VOP affidavit, was also insufficient to toll the probationary period). Thus, if Feag-in’s probationary term was only two years, then his probationary term expired on September 1, 2004, despite the August 17, 2004, warrant, because tolling requires both a warrant and a VOP affidavit.

Given the ambiguous record attachments to the postconviction court’s order, we must reverse. On remand, the post-conviction court should either attach other portions of the record conclusively refuting Feagin’s claim or conduct an evidentiary hearing.

Affirmed in part; reversed in part; and remanded.

CASANUEVA, SALCINES, and KELLY, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Mark Wayne PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2243.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Mark Wayne Patterson appeals an order withholding adjudication and placing him on probation for a series of motor vehicle offenses, the most serious of which was the third-degree felony offense of driving while license suspended as a habitual traffic offender. See §§ 322.264, .34(5), Fla. Stat. (2003). Mr. Patterson entered a plea of no contest to the charges, but reserved the right to appeal one issue: the denial of his “motion in limine to exclude prior un-counseled pleas.” This motion argued that Mr. Patterson could not be convicted of driving while license suspended as a habitual traffic offender because some of the prior convictions that supported his designation as a habitual traffic offender were entered in violation of his right to counsel. Pursuant to Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), we conclude there is no constitutional infirmity in the use of uncounseled pleas to support Mr. Patterson’s designation as a habitual traffic offender or the subsequent use of this designation to “reclassify” his subsequent offense. We therefore affirm the order withholding adjudication and placing Mr. Patterson on probation.

I. BACKGROUND

On September 19, 2003, as a result of a routine traffic stop, Mr. Patterson was charged with a number of traffic infractions. At the time, Mr. Patterson’s license was suspended because the Department of Highway Safety and Motor Vehicles (DHSMV) had classified him as a habitual traffic offender and suspended his license as required by section 322.264. Thus, the most serious charge Mr. Patterson faced was the third-degree felony of “driving while license suspended as a habitual traffic offender.” § 322.34(5).

Mr. Patterson filed a “motion in limine to exclude prior uncounseled pleas.” He alleged that his designation as a habitual traffic offender was the result of pleas he entered in four prior case numbers, based on charges that were punishable by up to nine months in jail. Mr. Patterson asserted that he had entered the pleas without the assistance of counsel at a time when he was indigent and that he entered the pleas without knowingly and voluntarily waiving his right to counsel. As a result, Mr. Patterson argued, these offenses could not be used to enhance his sentence or reclassify his current offense of driving with a suspended license from a misdemeanor to a third-degree felony. In support of his argument, Mr. Patterson cited State v. Beach, 592 So.2d 237 (Fla.1992), and Hlad v. State, 585 So.2d 928 (Fla.1991). The trial court denied this motion after a brief hearing and later accepted Mr. Patterson’s plea of no contest to this charge, subject to Mr. Patterson’s reserving his right to appeal this issue.

II. THE RECLASSIFICATION OF DRIVING WHILE LICENSE SUSPENDED FROM A MISDEMEANOR TO A FELONY

To understand Mr. Patterson’s argument on appeal and to assess its validity, it is important to first distinguish the two ways in which sequential convictions for driving while license suspended may result in an increase in the degree or level of the offense, thus exposing the defendant to a greater penalty.

A first offense of driving while license suspended is a second-degree misdemean- or. § 322.34(2)(a). Under section 322.34(2)(b), a second offense becomes a first-degree misdemeanor, and under section 322.34(2)(c), a third or subsequent offense becomes a third-degree felony.

Although this was apparently Mr. Patterson’s fifth offense of driving while license suspended, he was not charged under section 322.34(2)(c). Instead, he was charged with a violation of section 322.34(5), which provides:

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree....

Section 322.264 defines a “habitual traffic offender” as a person whose driving record, as maintained by the Department of Highway Safety and Motor Vehicles (DHSMV), reflects three or more convictions for specified moving traffic offenses (including driving while license suspended), occurring within five years. Section 322.27(5) requires the DHSMV to revoke the license of a person designated as a habitual traffic offender for a minimum of five years.

Thus, a person who is charged with a fourth offense of driving while his license is suspended may be charged with either (1) the third-degree felony described in section 322.34(2)(c), or (2) the third-degree felony described in section 322.34(5), as long as the DHSMV has revoked his driver’s license as a habitual traffic offender. Although both offenses are third-degree felonies, the elements of each offense are different. Each requires a current offense of driving while license suspended, but section 322.34(2)(c) specifically relies upon proof of the prior convictions to support the reclassification of the current offense, while section 322.34(5) relies upon proof of the DHSMV’s designation of the defendant as a habitual traffic offender to reclassify the offense.

Because section 322.34(2)(c) requires proof of the prior convictions as elements of the offense, the validity of those convictions may be challenged in an effort to prevent the reclassification of the charged crime. Specifically, Florida courts have held that a defendant charged with a sequential crime may challenge the use of prior convictions to reclassify the crime or increase the penalty when the prior convictions were obtained in violation of the defendant’s constitutional right to appointed counsel. See, e.g., Davis v. State, 710 So.2d 116, 117 (Fla. 2d DCA 1998); Register v. State, 619 So.2d 498 (Fla. 2d DCA 1993); Kirby v. State, 765 So.2d 723 (Fla. 1st DCA 1999). The genesis of these cases can be traced to two Florida Supreme Court cases, Beach, 592 So.2d 237, and Hlad, 585 So.2d 928. In turn, Beach and Hlad were based upon United States Supreme Court precedent involving the constitutional right to counsel and the validity of convictions obtained in violation of that right.

III. THE RIGHT TO COUNSEL AND THE USE OF CONVICTIONS OBTAINED IN VIOLATION OF THAT RIGHT

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court recognized an indigent criminal defendant’s right to appointed counsel in felony criminal proceedings and reversed a conviction obtained in violation of that right. In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Court went a step further, holding that a felony conviction obtained in violation of the right to counsel could not be used to “support guilt or enhance punishment for another offense.” Id. at 115, 88 S.Ct. 258. In fact, the Court held that the prior judgments in Burgett, which did not reflect that the defendant was represented by counsel, raised a presumption that the defendant was denied his right to counsel and that no waiver of that right could be inferred from a silent record. Id. at 114, 88 S.Ct. 258; see also United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (prohibiting use of conviction obtained in violation of right to counsel on sentencing score-sheet); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (holding defendant was deprived of due process by use of convictions that were constitutionally invalid under Gideon to impeach his credibility during trial).

Although a defendant’s right to counsel in felony cases was well established in the 1960s, the law was slower to develop in misdemeanor cases. As of 1979, based upon the United States Supreme Court’s opinions in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), appointed counsel was required in all felony cases but was not required in misdemean- or cases when a term of imprisonment was not actually imposed.

In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), overruled by Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), Baldasar had a prior uncounseled misdemeanor theft conviction, punishable by imprisonment of up to one year, but he had received a sentence of only probation, making the conviction “valid” under Scott and Argersinger. Thereafter, however, the conviction was used to support a charge of felony theft' (second offense), resulting in a sentence of three years’ imprisonment. In addressing whether the prior uncounseled conviction could support the reclassification of the second theft offense, four justices of the Supreme Court joined in a per curiam opinion holding that the prior conviction, though “valid” under Scott, could not be used to support the later more serious charge. Justice Black-mun filed a concurring opinion, agreeing that the prior conviction could not be used to support the subsequent offense, but arguing that a criminal defendant should be afforded appointed counsel in any prosecution for an offense punishable by more than six months’ imprisonment or whenever the defendant is convicted and actually sentenced to a term of imprisonment. Baldasar, 446 U.S. at 229, 100 S.Ct. 1585.

It was within this context that the Florida Supreme Court decided Beach, 592 So.2d 237, and Hlad, 585 So.2d 928, relied upon by Mr. Patterson. In Hlad, the Florida Supreme Court interpreted Justice Blackmun’s concurring opinion in Baldasar as supporting a holding by the majority of the Supreme Court that an uncounseled conviction could not be used to reclassify a subsequent offense or enhance a subsequent sentence if the prior crime was punishable by more than six months’ imprisonment or the defendant was actually subjected to a term of imprisonment. Hlad, 585 So.2d at 930. Said conversely, the uncounseled conviction could be used for these purposes if it was for a crime punishable by less than six months’ imprisonment and the defendant was not actually imprisoned.

In Beach, the Florida Supreme Court relied upon Hlad to establish a procedure by which a defendant could challenge the use of prior uncounseled convictions when the State sought to use them to reclassify or increase the penalty for a subsequent offense. Under Beach, the defendant must file an affidavit asserting under oath (1) that the prior offense was punishable by more than six months in prison or that the defendant was actually subjected to imprisonment (consistent with Hlad’s interpretation of Baldasar)-, (2) that the defendant was indigent and thus entitled to court-appointed counsel; (3) that counsel was not appointed; and (4) that the right to counsel was not waived. Beach, 592 So.2d at 239. At that point, the burden shifts to the State to prove that counsel was indeed provided or that the right to counsel was validly waived.

As stated above, the Beach/Hlad analysis has since been applied to challenge the use of prior uncounseled pleas as predicate offenses for Florida statutory recidivist offenses. See Davis, 710 So.2d 116; Register, 619 So.2d 498; Kirby, 765 So.2d 723. It is this analysis that Mr. Patterson seeks to apply here. However, he seeks to apply it to a statute that does not require proof of prior convictions to support the offense, but requires proof of an administrative designation that was based on prior convictions.

III. THE PRINCIPLES OF BEACH AND HLAD DO NOT APPLY WHEN A RECLASSIFICATION IS BASED ON AN ADMINISTRATIVE DESIGNATION RELYING ON PRIOR UNCOUNSELED CONVICTIONS RATHER THAN DIRECTLY ON PRIOR CONVICTIONS

As explained above, section 322.34(5) does not require, as an element of the crime, a finding of specific prior convictions for the same or similar crimes. State v. Fields, 809 So.2d 99, 101 (Fla. 2d DCA 2002). A conviction under section 322.34(5) simply requires competent evidence showing that the DHSMV maintained a record on the motorist, that the record reflected three prior moving violation convictions, and that the motorist received notice of his designation as a habitual traffic offender and the resulting suspension of his license. Fields, 809 So.2d at 101; State v. Miller, 830 So.2d 214, 215 (Fla. 2d DCA 2002). Thus Florida courts have held that the State is not required to present proof of the prior convictions in order to establish prima fa-cie evidence of this crime. Id.; see also Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2001); Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002) (en banc). Mr. Patterson’s case, therefore, is distinguishable from Beach, Hlad, and their progeny because his conviction rests on a substantially different statutory structure.

Mr. Patterson does not challenge the validity of the civil disability imposed by sections 322.264 and 322.27(5). There is no question the legislature can require a lengthy suspension of a driver’s license when there has been an administrative proceeding determining that the driver poses an unreasonable risk on the road. We have found no precedent that would prevent an administrative body like the DHSMV from relying on uncounseled but at least facially valid convictions to support such an action. Indeed, Mr. Patterson does not allege that he challenged the DHSMV’s decision to designate him as a habitual traffic offender in that administrative proceeding.

At least one court in another jurisdiction has held that the use of uncounseled convictions in administrative proceedings to impose certain civil disabilities is appropriate, even though their use may result in a determination of a “status” that may subject the defendant to more serious criminal sanctions. See Musick v. Kan. Dep’t of Revenue, 16 Kan.App.2d 462, 825 P.2d 531 (1992). In Musick, the court held that an uncounseled conviction can support the label of “habitual violator” as a “civil disability”: “Once a person has been labeled a habitual violator, if he or she ... drives, [the statute] merely imposes criminal sanctions for the subsequent act of driving.” Id. at 537; see also Clark v. Sec’y of State, 483 A.2d 708 (Me.1984).

Musick relied specifically on a United States Supreme Court case, Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). In Lewis, the defendant had been convicted of a felony in Florida, allegedly in violation of his right to counsel. Lewis had not sought postcon-viction relief directed toward this conviction. Thereafter, he was charged under a federal statute for felon in possession of a firearm. After noting that the federal statute governing the offense said nothing about the validity of the underlying conviction, the Supreme Court stated:

We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes.
Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Congress’ judgment that a convicted felon, even one whose conviction was allegedly uncoun-seled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational. Enforcement of that essentially civil disability through a criminal sanction does not “support guilt or enhance punishment,” see Bur-gett, 389 U.S., at 115, 88 S.Ct., at 262, on the basis of a conviction that is unreliable when one considers Congress’ broad purpose....
Again, it is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack.

Lewis, 445 U.S. at 66-68, 100 S.Ct. 915 (footnotes and some citations omitted).

Here, similarly, the habitual traffic offender statutes do not focus on the “reliability” of the prior convictions. They reflect a rational legislative judgment that a certain class of persons should be prevented from driving because of potential dangerousness. Similarly, Mr. Patterson, like the defendant in Lewis, had the opportunity to challenge the validity of one or more of his convictions by seeking postconviction relief before they resulted in a finding that he was a habitual traffic offender. Thus under Lewis, the imposition of the civil disability of license suspension and the enforcement of that disability through a new criminal sanction does not “support guilt or enhance punishment” on the basis of a conviction that is unreliable. Id.

We recognize that the application of Lewis to the habitual traffic offender provisions seems to create a logical inconsistency between similar statutes. That is, the State may be prohibited from seeking a third-degree felony conviction for driving while license suspended under section 322.34(2)(c) because it cannot rely on convictions that are “unreliable” because they were obtained in violation of the right to counsel, but the State can use the same convictions, by way of an administrative designation that does not assess their reliability, to support a third-degree felony conviction under section 322.34(5). In addition, a prior uncounseled conviction that may no longer be subject to a traditional collateral attack, see Fla. R.Crim. P. 3.850(a)(1), (b), may conclusively support a defendant’s designation as a habitual traffic offender, but the same conviction is effectively open to a collateral attack regarding its use on a scoresheet or to support a conviction for a sequential crime.

Nevertheless, the Constitution does not prohibit this inconsistency. Under Lewis, there is no constitutional issue raised by the use of a possibly “unreliable” conviction to support an administrative designation and civil disability or the subsequent punishment arising from violating the law while under that designation and disability. We therefore affirm the order withholding adjudication and placing Mr. Patterson on probation.

Affirmed.

NORTHCUTT and CASANUEVA, JJ., concur.

      . The record is not clear, but it appears these cases involved four other citations for knowingly driving while his license was suspended. See § 322.34(2), Fla. Stat. (2003).

      . We refer generally to the "enhancement” of a sentence when the prior offense is used solely for sentencing purposes, but to the "reclassification” of the offense when the prior offense is used to charge the defendant with an offense that is greater in degree.

      . The four justices who agreed with Justice Blackmun that the case required reversal did not specifically espouse the "punishable by more than six months’ imprisonment” portion of Justice Blackmun’s reasoning.

      . We note that in 1994, the United States Supreme Court overruled Baldosar, in Nichols, 511 U.S. 738, 114 S.Ct. 1921. In Nichols, the Supreme Court effectively reaffirmed the holding in Scott, 440 U.S. 367, 99 S.Ct. 1158 — that a prior uncounseled conviction for a misdemeanor that could have resulted in imprisonment of up to one year in prison but for which the defendant was not imprisoned was a valid conviction that could be used to enhance the penalty for a subsequent offense. But see Shelton, 535 U.S. 654, 122 S.Ct. 1764 (2002) (reversing an uncounseled conviction resulting in a suspended sentence as invalid). Only the First District seems to have noticed the discrepancy between Beach and Hlad, both of which continue to rely on the "punishable by more than six months in prison or actually subjected to imprisonment” analysis, and Nichols, which holds that a misdemeanor conviction obtained without counsel is valid whenever no term of imprisonment is imposed. See Kirby, 765 So.2d 723. In Kirby, the defendant filed the affidavit contemplated in Beach and met Beach's technical requirements by alleging only that the challenged conviction was punishable by more than six months' imprisonment. It was not clear whether Kirby had actually served any term of imprisonment based upon the prior conviction. The First District recognized that Beach and Hlad were issued before Nichols and relied upon the now-overruled Baldosar. However, the Kirby court theorized the Florida state constitutional guarantee of a right to counsel may extend beyond the confines of the federal constitutional right. As such, the First District was unwilling to conclude that Nichols had overruled Beach or Hlad. In this case, Mr. Patterson filed the affidavit envisioned by Beach and identical to the one in Kirby, asserting that his prior convictions would have permitted sentences of over six months’ imprisonment, without indicating whether he was actually imprisoned for any of the offenses. We need not decide in this case whether Beach, Hlad, and Kirby properly delineate the appropriate use of prior convictions to enhance a subsequent criminal penalty because this case presents another issue: whether that reasoning applies when the legislature has designed a recidivist statute to define the offense not by reference to prior convictions, but to an administrative designation based upon such convictions.

      . We note, however, that the law is not clear whether a driver can object at the administrative level to the use of uncounseled convictions to support the habitual traffic offender designation or the resulting license suspension. See, e.g., State, Dep’t of Highway Safety & Motor Vehicles v. Vogt, 489 So.2d 1168 (Fla. 2d DCA 1986) (holding county court had no authority to prohibit the DHSMV from using a prior uncounseled conviction to determine the length of a driver’s license revocation, but suggesting the driver might have been able to seek certiorari review of the DHSMV action).


text:
    Clifford Jon RAINEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1999.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.

      Bruce Rogow and Cynthia E. Gunther, of Bruce S. Rogow, P.A., and Beverly A. Pohl, of Broad and Cassel, Fort Lauder-dale, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Clifford Jon Rainey [“Rainey”] appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We affirm.

Rainey was charged with second-degree murder. The jury found him guilty of the lesser included offense of manslaughter with a weapon, and he was sentenced to thirty years incarceration. Rainey appealed, but his appeal was dismissed by counsel. The direct appeal was later reinstated, and this court affirmed the judgment and sentence. Rainey v. State, 875 So.2d 684 (Fla. 5th DCA 2004).

On September 6, 2001, Rainey filed his first 3.850 motion alleging ineffective assistance of counsel. That motion was denied on October 23, 2001, and the order denying relief was affirmed on appeal. Rainey v. State, 802 So.2d 1185 (Fla. 5th DCA 2002). On July 3, 2003, he filed a 3.800(a) motion to correct sentence, which was denied on September 15, 2003.

Rainey filed this second 3.850 motion for post-conviction relief based on a claim of newly discovered evidence. Dr. Shashi Gore was the State’s forensic medical expert at his trial. Dr. Gore was placed on probation by the Medical Examiner’s Commission in 2004 for negligence and violations of professional standards in his role as an expert in the case of State v. Yurko, Case No. CR98-1730 (Fla. 9th Jud. Cir.). Rainey claims that this disciplinary action constitutes material impeachment evidence that would warrant a new trial or sentencing hearing in his case. He contends that this new evidence could impeach Dr. Gore’s testimony at trial regarding whether the victim had “defense wounds” and whether cuts to the top of the victim’s head were consistent with him being attacked. Rainey argues that since Dr. Gore’s testimony was directed at the issue whether Rainey’s conduct was criminal homicide or a justifiable act of self-defense, this impeachment evidence would “probably” produce an acquittal on retrial or a lesser sentence.

The undisputed evidence at trial showed that Rainey killed Alfred Pritchard [“Pritchard”]. Rainey had gone to his ex-girlfriend’s house near midnight on the date of the homicide. The ex-girlfriend was sleeping with Alfred Pritchard, who awakened, became upset at Rainey’s presence and ran outside in a confrontational manner, carrying both a machete and a firearm. During the altercation that ensued, Rainey took control of the machete. He ultimately hit Pritchard with the machete, killing him. Rainey testified that he acted in self-defense, but the State disputed Rainey’s version that Pritchard was about to shoot him. The State presented evidence from an eyewitness who testified that she did not see Pritchard point his gun at Rainey. The State’s evidence showed that Rainey unexpectedly struck Pritchard with the machete after the confrontation had subsided and the two men were walking back towards the house. The State had argued that the lack of “defensive wounds” on Pritchard’s hands confirmed that he was attacked by surprise. The jury acquitted Rainey of second-degree murder, but also rejected Rai-ney’s claim of self-defense. He was found guilty of the lesser included offense of voluntary manslaughter with a special verdict that he carried a weapon, the machete.

To prevail on a newly discovered evidence claim, Rainey must demonstrate first, that the newly discovered evidence was unknown to him, counsel, or the court at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a nature that it would probably produce an acquittal upon retrial. See Jones v. State, 709 So.2d 512 (Fla.1998); State v. Gunsby, 670 So.2d 920 (Fla.1996). In determining whether the newly discovered evidence would probably produce an acquittal on retrial, the trial court should initially consider its admissibility and then evaluate the weight of the newly discovered evidence and the evidence which was introduced at the trial, taking into consideration whether the newly discovered evidence goes to the substance of the case or whether it constitutes impeachment evidence. See Robinson v. State, 770 So.2d 1167 (Fla.2000).

Dr. Gore was placed on probation in 2004, and Rainey’s trial concluded in 2000. The final order in the disciplinary action against Dr. Gore found only that he exhibited negligence in his work in the case involving the death of the infant in the Yurko case. The findings were limited to the one case, involved specific acts of negligence in that case and would have been of doubtful evidentiary value, even if available in Rainey’s trial. The trial court prepared a thorough and well-reasoned order denying relief, noting that specific acts of misconduct cannot be introduced to impeach the credibility of a witness. See Farinas v. State, 569 So.2d 425 (Fla.1990); Jackson v. State, 545 So.2d 260 (Fla.1989); DeSantis v. Acevedo, 528 So.2d 461 (Fla. 3d DCA 1988). The trial court also concluded that, based on other corroborating evidence, including autopsy photographs of the victim, even Rainey’s own testimony, this new impeachment evidence, would probably not produce a different outcome. Based on our review of the record, we agree with the trial court.

There has been no suggestion in this case of any evidence after trial that Dr. Gore lied when testifying at Rainey’s trial, or that he negligently performed the autopsy of the victim in Rainey’s case.

AFFIRMED.

GRIFFIN, PALMER and EVANDER, JJ., concur.

      . Manslaughter is a second degree felony, but in defendant's case the felony was reclassified to a first-degree felony because the jury made a special finding that he carried a weapon. See § 775.087(1), Fla. Stat. (2005).


author: EVANDER, J.

text:
    Scott TARNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2665.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.

      William J. Sheaffer, of William J. Sheaf-fer, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant was convicted of sexual battery upon a person physically helpless to resist in contravention of section 794.011(4)(a), Florida Statutes (2003). He raises several points on appeal — of which we find only one has merit. Appellant contends the trial court improperly prevented him from introducing testimony of two witnesses which would have impeached the testimony of the alleged victim. We agree and reverse.

The state’s primary witness was the alleged victim, R.H. Appellant and R.H. met, through mutual friends, in Daytona Beach. R.H. and a female friend were looking for a place to stay until they could “get back on their feet” and appellant agreed they could move in with him. The three lived together in Daytona Beach for approximately one year. In January, 2004, appellant and R.H. moved into a two-bedroom apartment in Orlando. R.H. testified that she looked upon appellant as a “big brother” and they did not have a romantic relationship. Appellant and R.H. would regularly socialize together, including drinking with mutual friends. On four — five of these occasions, R.H. would consume alcoholic beverages to the extent that she would “blackout.” On these occasions, R.H. would be unable to recall the events of the evening. She testified that on at least two of these occasions (between January, 2004, and March, 2004), she woke up without any clothes on and feeling as if someone had had sex with her. After one of these occasions, she asked appellant if anything had “happened” between them. According to R.H., appellant initially denied anything had occurred between the two, but shortly thereafter acknowledged that “something happened between us.” R.H. testified she thought about going to the police, but decided not to because it would be his word against hers. Notwithstanding R.H.’s suspicions and appellant’s alleged admission, R.H. did not immediately move out of the apartment.

In April, 2004, a mutual friend, Cassie Houchins, moved into the apartment with appellant and R.H. In early June, 2004, R.H. and Cassie moved to a hotel. R.H. testified that she moved out because she and appellant had been arguing a lot. After two months of living in a hotel, Cassie moved in with her boyfriend. R.H. contacted appellant and asked if she could move back in with him. Appellant agreed and R.H. returned to the two-bedroom apartment in August, 2004. At the time of R.H.’s return, another woman (Sarah Bow-der) and her three children, were also residing in the apartment. R.H. did not believe appellant and Sarah had a romantic relationship. Sarah’s children stayed in one bedroom and the three adults would rotate as to who slept in the remaining bedroom and who slept on the couch.

In October, 2004, R.H.’s new boyfriend was also living in the apartment. On October 31, 2004, R.H. wanted to show Sarah her scrapbook. Because of space limitations, R.H. kept some of her personal belongings in appellant’s bedroom closet. While searching for her scrapbook, R.H. came upon a box owned by appellant. This box contained numerous photographs depicting R.H. naked and apparently asleep or unconscious. R.H. testified these photographs were taken without her knowledge or consent. Two of the photographs in the box depicted a man and a woman engaged in sexual intercourse. Although neither of the photos showed the upper half of the woman’s body, R.H. identified herself as the woman in the photos based on her bathing suit lines and a birthmark. She identified appellant as the male in the two photos. (One of the photos included the face of the male. In the other photo, R.H. identified appellant based on the shape and location of a tattoo.) R.H.’s new boyfriend came into the room, saw the photos and became angry. The police were immediately contacted and appellant was subsequently arrested. R.H. maintained that she had never had consensual sex with appellant. She also maintained that she had never seen or been aware of the existence of these photographs prior to this date.

On cross-examination, R.H. acknowledged that her boyfriend demanded an explanation regarding the photographs. She denied the police were called to placate her boyfriend. Of particular importance to this appeal, R.H. denied that in May, 2004, she had discussed “sex” photos taken of her by appellant with her former roommate, Cassie. R.H. further denied that in June, 2004, she had a discussion with appellant’s mother concerning the existence of “pornographic” pictures of R.H.

After the state rested, appellant attempted to introduce testimony from Cassie to impeach R.H.’s testimony that R.H. first learned of the existence of the “sex photos” on October 31, 2004. When Cassie was asked whether she had a conversation with R.H. in May, 2004, regarding the existence of “sex photos” of R.H., the state objected on hearsay grounds. Although appellant’s counsel stated the testimony was being offered for impeachment purposes, the trial judge sustained the objection, stating: “[Ijmpeachment is not an exception to the hearsay rule.” Appellant’s effort to introduce the testimony of a conversation between appellant’s mother and R.H. in June, 2004, regarding “pornographic” photos of R.H. was similarly thwarted. The trial court did permit appellant’s counsel to make a proffer of Cassie’s testimony and appellant’s mother’s testimony out of the presence of the jury. In her proffered testimony, Cassie stated that R.H. had told her that she (R.H.) had found photographs in appellant’s closet depicting R.H. and appellant having sex. R.H. further stated she didn’t know if it was “voluntary or involuntary” because she was drunk. Appellant’s mother’s proffered testimony was that she asked R.H. if appellant had taken pornographic pictures of her. According to appellant’s mother, R.H. was “flustered by the question” but then said “it was no big deal.” The proffered testimony did not change the trial court’s ruling.

The trial judge erred in finding the proffered testimony to be hearsay. The testimony of Cassie and appellant’s mother was offered to impeach the testimony of R.H. A statement offered to impeach a witness is not hearsay because it is not offered to prove the truth of the matter asserted. Rather, it is offered to show why the witness is not trustworthy. Fitzpatrick v. State, 900 So.2d 495, 515 (Fla.2005).

The state argues the trial court’s decision to exclude the proffered testimony was correct, albeit for the wrong reason. As the state correctly notes, section 90.608(5), Florida Statutes, provides that a party may attack the credibility of a witness by introducing testimony of another witness that material facts are not as testified by the witness being impeached. The state contends the proffered testimony was inadmissible because the date on which R.H. learned of the existence of the photographs was not a material fact. We cannot agree.

Appellant argued to the jury that R.H. falsely accused him of nonconsensual sex to placate an admittedly angry boyfriend. Certainly, appellant’s argument would be more plausible if R.H. had been aware of the photographs prior to the date on which her boyfriend first saw the photos. Second, if the jury believed R.H. was aware of the photographs prior to August, 2004, R.H.’s claim of nonconsensual sex would be undermined by the fact that she voluntarily chose to move back in with appellant in August.

Finally, during closing argument, the prosecutor specifically argued that R.H. did not contact the police prior to October 31, 2004, because October 31st was the date she first learned of the existence of the photographs. This argument was made to bolster R.H.’s credibility. Accordingly, it would appear that, at trial, the state considered the date on which R.H. learned of the existence of the photographs to be a material fact.

REVERSED and REMANDED for a new trial.

GRIFFIN and SAWAYA, JJ., concur.


text:
    PAUL N. HOWARD COMPANY, INA of Texas, et al., Petitioner, v. CAMP, DRESSER & McKEE, INC., et al., Respondent.
    No. 5D06-2356.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Michael M. Bell and Mary Grace Dyle-ski, Bell, Leeper & Roper, P.A., Orlando, for Petitioners.
    James D. Kisio of Irby G. Pugh, P.A., Orlando, and William H. Selde of Sodoro, Daly & Sodoro, P.C., Omaha, for Respondents.
   PER CURIAM.

We dismiss the petition for writ of cer-tiorari filed by Paul N. Howard Company, INA of Texas, Pacific Employers Insurance Company, INA Insurance Company of Illinois and Atlantic Employers Insurance Company. A non-final order denying a motion for summary judgment is generally not reviewable by interlocutory appeal or common law certiorari. Barber v. Wonderland Greyhound Park, 656 So.2d 961, 961-62 (Fla. 5th DCA 1995) (citing Vaneo Constr., Inc. v. Nucor Corp., 378 So.2d 116 (Fla. 5th DCA 1980)); see also Baptist Hosp. of Miami, Inc. v. Demario, 682 So.2d 1106 (Fla. 3d DCA 1996).

PETITION FOR WRIT OF CERTIO-RARI DISMISSED.

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


text:
    Kevin PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2566.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Kevin D. Phillips, East Palatka, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Kevin Phillips appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. This Court issued an order to show cause because Mr. Phillips’s notice of appeal was untimely. Mr. Phillips responded that the delay was caused “due to [the] prison mail system,” although he offers nothing to substantiate that claim. This appeal must be dismissed as untimely. However, this dismissal is without prejudice to file a petition for belated appeal in compliance with Florida Rule of Appellate Procedure 9.141(c).

DISMISSED WITHOUT PREJUDICE.

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    Jonette JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1089.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.

      Jonette Johnson, Riverview, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Jonette Johnson filed a petition for writ of mandamus, seeking to compel the circuit court of the Ninth Judicial Circuit to rule on her motion for postconviction relief filed on July 29, 2005. In response to our order to show cause, the State advised this Court that on April 25, 2006, the circuit court ordered it to respond to Johnson’s rule 3.850 motion within thirty days. The State urged that because “the circuit court is aware of the pending motion, the petition for writ of mandamus should be denied.” We declined the State’s invitation to dismiss the matter, and, instead directed the State to file a status report regarding the postconviction proceedings on or before June 26, 2006. In compliance therewith, the State notified this Court that on June 15, 2006, the trial court determined that Johnson was entitled to an evidentiary hearing on one of her postconviction claims, although that order did not set the hearing. This Court ordered yet another status report on the matter, and the State now advises that the evidentiary hearing was to be held on September 9, 2006, some thirteen months after the initial postcon-viction motion was filed. We should note that we do not have enough of the record below to determine which judge or judges have been assigned to this case since the filing of the postconviction motion. The currently assigned judge first appears in our record on April 25, 2006.

Mandamus lies to compel a trial court to rule on a motion or petition after a reasonable time. Matthews v. Circuit Court, 515 So.2d 1065 (Fla. 5th DCA 1987). While we are loath to interfere with a trial judge’s management of his or her docket, we are concerned that the failure to rule on Johnson’s motion impairs her rights of access to the courts and due process. Due to the delay in considering the postconviction motion, Johnson was required to seek relief from this Court, resulting in the issuance of four orders to determine the status of the proceedings below (and hopefully hasten consideration of the matter). This matter has also consumed the limited resources available to the Office of Attorney General, which was required to respond to each of the orders issued by this Court. We recognize that the circuit court has an enormous case load, but we also believe that an unreasonable delay has ensued in the consideration of Johnson’s postconviction motion.

Accordingly, we direct the judge to whom this matter is assigned to rule on Johnson’s 3.850 motion within thirty days following receipt of this order.

PETITION GRANTED; WRIT ISSUED.

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

      . Although the State's status report indicates that an evidentiary hearing is to be held on September 9, 2006, the trial court's order provided to us by the State actually sets the matter for a "status hearing.” It is unclear if the status hearing is intended to be the evi-dentiary hearing.


text:
    Raul GONZALEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3243.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Raul Gonzalez, Quincy, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Raul Gonzalez petitions this court for a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Because the petition was not sworn as required by Florida Rule of Appellate Procedure 9.141(c)(3)(F), we deny his petition as facially insufficient. See Popp v. State, 935 So.2d 93 (Fla. 5th DCA 2006) (stating when a petition for belated appeal is un-sworn, it would be denied as facially insufficient, without prejudice to file a facially sufficient sworn petition); Abbot v. State, 929 So.2d 723 (Fla. 5th DCA 2006); Cosby v. State, 911 So.2d 275 (Fla. 5th DCA 2005). The denial is without prejudice for Gonzalez to file a facially sufficient sworn petition.

Petition for Belated Appeal DENIED.

THOMPSON, PALMER and EVANDER, JJ., concur.


text:
    Frank JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2620.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2006.
   PER CURIAM.

Affirmed without prejudice to the Appellants right to file a timely, facially sufficient petition pursuant to Florida Rule of Appellate Procedure 9.141(c).

DAVIS, SILBERMAN, and CANADY, JJ., Concur.


author: VILLANTI, Judge.

text:
    Theresa L. FRANKS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Price Hamilton & Price Chartered, Appellees.
    No. 2D06-114.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2006.
    Theresa L. Franks, pro se.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Price Hamilton & Price Chartered.
   VILLANTI, Judge.

Theresa L. Franks appeals the order of the Unemployment Appeals Commission affirming the decision of the appeals referee that disqualified her from receiving benefits. Because Ms. Franks’ actions, which resulted in her discharge from employment, did not rise to the level of misconduct as defined in section 443.036(29), Florida Statutes (2004), we reverse.

Ms. Franks was employed as a legal assistant with the law firm of Price Hamilton & Price Chartered. Ms. Franks was taking online classes during the course of her employment. She then began taking classes at a local campus. Her new school schedule affected her work hours. At some point during her employment, the employer permitted Ms. Franks to work an irregular schedule. Soon after Ms. Franks’ local classes began, the employer decided to enforce a regular work schedule. Rather than giving Ms. Franks the option of working regular full-time hours, the employer discharged her. At no time prior to her discharge did the employer advise Ms. Franks that the irregular work schedule would no longer be allowed to continue.

When Ms. Franks applied for unemployment compensation benefits, her employer reported that Ms. Franks had quit her job “because the employer refused to change the work schedule which was agreed upon at the time of hire.” Her application for benefits was denied based upon her employer’s report. Ms. Franks appealed the decision, and a telephonic hearing was held. At the hearing, the employer admitted that Franks had been fired. Following the hearing, the appeals referee found that Ms. Franks did not quit but had been discharged by the employer for “misconduct connected with work.” The Unemployment Appeals Commission affirmed the appeals referee’s decision, and Ms. Franks timely appealed to this court.

Section 443.101(l)(a) disqualifies a person for unemployment compensation benefits if that person has been discharged “for misconduct connected with his or her work.” Misconduct is defined by the statute as:

(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

§ 443.036(29).

The alleged misconduct by Ms. Franks involved her irregular work schedule. However, “[ujnless an employer expressly disapproves an employee’s irregular schedule, that schedule does not constitute employee misconduct.” Har-tenstein v. Fla. Dep’t of Labor & Employment Sec., 383 So.2d 759, 761 (Fla. 2d DCA 1980). In Bonomo v. Division of Employment Security, 346 So.2d 128 (Fla. 1st DCA 1977), the court reviewed a discharge for work-related misconduct because the worker had requested a reduction in hours. In response to her request, the worker was fired. The court found that the worker should have been told to either resume her old work hours or face discharge. The court held that absent that choice, “the claimant’s discharge could not have been based on work related misconduct; therefore, she was able to recover unemployment compensation benefits.” Hartenstein, 383 So.2d at 761.

Here, the record shows that the employer had previously allowed Ms. Franks to work an irregular schedule. The record also shows that Ms. Franks was terminated without being given the opportunity to comply with the employer’s new stance on work hours. Without being notified by the employer that regular hours were required and Ms. Franks refusing to comply with the request, Ms. Franks’ conduct could not constitute misconduct within the meaning of the statute.

Accordingly, we reverse the order of the Unemployment Appeals Commission and remand with directions to enter an order allowing the benefits.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.

      . Our decision makes it unnecessary to address Ms. Franks’ claim on appeal that the administrative proceedings deprived her of a fair hearing and thus denied her due process of law.


text:
    Kathy STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4619.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2006.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Kathy Stokes appeals her judgment and sentence, arguing that the trial court erred in denying her motion to withdraw her no contest plea, which was filed pursuant to Florida Rule of Criminal Procedure 3.170(i). Because she established a manifest injustice, the trial court abused its discretion by denying the motion. Accordingly, we reverse and remand for further proceedings.

From the outset of the case, the State, the defense counsel, and the trial judge were aware of the fact that Ms. Stokes had serious mental and emotional problems. A mental health expert was appointed to evaluate Ms. Stokes and found her competent to stand trial. At the change of plea hearing, defense counsel advised the trial judge that the evaluating psychologist would be present for the sentencing hearing. The plea hearing proceeded, and significantly, the trial judge asked no questions regarding Ms. Stokes’ mental status in order to determine that she was voluntarily entering the plea. Whether Ms. Stokes was on any medication that affected her competency to enter a plea was not addressed at the plea hearing or on the written plea form. In fact, the transcript does not affirmatively show that Ms. Stokes had any idea what she was doing when entering the plea.

Under the circumstances of this case, it was incumbent upon the trial judge to develop sufficient record information supporting Ms. Stokes’ competency to enter the no contest plea. Even in cases without mental health issues, rote recitation of the bare minimum required by Florida Rule of Criminal Procedure 3.172(c) and perfunctory responses are generally inadequate to support a finding that a plea is voluntarily entered. “Because a guilty, or no contest, plea has serious consequences for the accused, the taking of a plea ‘demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.’ ” Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (quoting Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Whether Ms. Stokes was on medication that affected her competency to enter the no contest plea was not addressed at the plea hearing. Thus, there was no record evidence to refute Ms. Stokes’ later claim that she was not competent to enter the plea because she was affected adversely by medication.

Rule 3.170(i) provides for the withdrawal of a plea after sentencing on certain limited grounds, including involuntariness of the plea. A defendant has the burden to demonstrate that a manifest injustice requiring correction compels the withdrawal of the plea. See Lopez v. State, 536 So.2d 226, 229 (Fla.1988). The record shows that Ms. Stokes met that burden.

“Due process requires a court accepting a guilty plea to carefully inquire into the defendant’s understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary.” Koenig, 597 So.2d at 258. The record here contains no careful inquiry; the plea colloquy was perfunctory at best and completely failed to protect Ms. Stokes’ due process rights. Such a failure equates to a manifest injustice. Because the trial court abused its discretion by denying the motion to withdraw the plea, we reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ, concur.

      .The earlier finding of competency does not release the trial judge from making a full inquiry at the time of the change of plea. See, e.g., Randall v. State, 885 So.2d 932, 933 (Fla. 5th DCA 2004) (finding a defendant's claim in a rule 3.850 motion that he was never asked whether he was under the influence of any medications, despite his history of mental illness and psychiatric hospitalizations, was facially sufficient despite finding of competency to stand trial); Doward v. State, 802 So.2d 518, 519 (Fla. 5th DCA 2001) (finding that, in denying a rule 3.850 motion, a trial judge could not rely on a psychiatrist’s report prepared three months prior to the plea hearing concerning competency to stand trial because the report did not address the defendant’s mental status at the time he entered his plea. Additionally, the court was still obligated to question the defendant about "his medications and his ability to understand the consequences of entering a plea.”).

      . At the hearing on her motion to withdraw the plea, Ms. Stokes testified that in prison her medications now included Thorazine and Haldol.

      . The motion to withdraw the plea states that Ms. Stokes "at the time of her plea had been prescribed heavy medication, was under the influence of medications, and possibly was not medicated properly.” These medications included antidepressants, antianxiety medications, and antipsychotic medications.


author: STRINGER, Judge.

text:
    Anthony R. CECENA, Jr., Appellant, v. Ginger A. CHAMBERS, Appellee.
    No. 2D05-5715.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2006.
    Julian A. Hayes of Law Offices of J.A. Hayes, P.A., Tampa, for Appellant.
    Neal Weinstein, Tampa, for Appellee.
   STRINGER, Judge.

Anthony R. Cecena, Jr., the Father, seeks review of a postdissolution order granting the supplemental petition for modification of custody filed by Ginger A. Chambers, the Mother. We reverse because the trial court did not make a determination that the modification of custody was supported by a substantial change in circumstances.

The parties in this case entered into a marital settlement agreement that provided for shared parental responsibility with the Father as the primary residential parent. It provided for visitation by “mutual agreement,” or in the absence of mutual agreement, the marital settlement agreement provided two detailed visitation schedules: one that applied if the parties resided 100 miles or less apart and another that applied if the parties resided more than 100 miles apart. The marital settlement agreement also provided that if either parent relocates, “the relocating parent shall be responsible for the transportation, including pickup from and return to the other parent’s residence for visitation.” At the time the marital settlement agreement was executed, the parties lived less than 100 miles apart.

The final judgment of dissolution was entered on March 5, 2004, and shortly thereafter, the Father relocated to Iowa with the parties’ two-year-old child. The Father refused to pay for the child’s transportation to Florida for visitation with the Mother as required by the marital settlement agreement. In response, the Mother filed three pleadings with the court on April 24, 2004, about six weeks after entry of the final judgment: (1) a motion for relief from judgment alleging that she never read the marital settlement agreement, (2) an emergency motion for order directing return of the child to the jurisdiction, and (3) a supplemental petition for modification of the final judgment. The supplemental petition for modification alleged that the Father’s relocation to Iowa constituted a substantial change in circumstances and requested that the Mother be awarded primary residential custody of the child.

The court held hearings on the first two motions in July and September 2004. In September 2004, the Mother filed a motion for contempt or, in the alternative, to enforce the final judgment. The motion alleged that the Father had not provided for the child’s transportation from Iowa for visitation in Florida with the Mother as required by the marital settlement agreement.

In January 2005, the court rendered a written order denying the motion for relief from judgment based on its finding that the Mother’s failure to read the marital settlement agreement was her own fault. The court also denied the emergency motion for order directing return of the child to the jurisdiction based on its finding that the final judgment did not prohibit the Father’s relocation. The Mother did not appeal these adverse rulings to this court, and the supplemental petition for modification and motion for contempt or to enforce the final judgment remained pending.

The court held a hearing on the two pending motions in May 2005. The transcript of that hearing is not included in the record on appeal. The trial court granted the motion to enforce final judgment and directed the Father to provide forty-two days of visitation between June 1 and August 31, 2005. The parties do not dispute that the Father complied with this order. Nonetheless, after a second hearing in July 2005, the transcript of which is also not in the record, the court granted the Mother’s supplemental petition for modification and awarded custody to the Mother.

In its order granting the supplemental petition for modification, the court cited portions of its order granting the motion to enforce final judgment in which it found that (1) “[wjithin weeks of entry of the Judgment the [Father] unilaterally moved to the State of Iowa with the minor child,” (2) the Father had already decided to move at the time he signed the marital settlement agreement, (3) “[t]he [Mother] testified that, although the [Father] had raised the possibility of moving to Iowa, she did not know that the [Father] planned, within weeks, to move there,” (4) the Mother had not seen the child since the Father moved to Iowa, and (5) “[t]he [Father] knew he would not comply with the visitations [sic] provisions of the Marital Settlement Agreement when he signed it.” The court then conducted a best interests analysis and concluded that even though both parents were equally good providers and loved the child equally, the Father’s failure to facilitate visitation with the Mother rendered a modification of custody in the child’s best interests. What the court did not do was make a determination that modification of custody was supported by a substantial change in circumstances.

On appeal, the Father argues that the modification of custody was not supported by a substantial change in circumstances because relocation was contemplated by the marital settlement agreement. The Father also argues that the trial court erred in refusing to consider less drastic measures to enforce visitation. The Mother argues that the court’s findings that the Father had relocated and had failed to facilitate visitation were “implicit” findings of a substantial change in circumstances. The Mother also argues that no less drastic measures were feasible in this case.

As authority for the modification of custody, the trial court relied on section 61.13(4)(c)(5), Florida Statutes (2003). That statute provides authority for a court to modify custody if the custodial parent refuses to honor the noncustodial parent’s visitation rights without proper cause and the modification is in the best interests of the child. At least one Florida court has previously held that a substantial change in circumstances was not required for custody modifications under section 61.13(4)(c)(5). See, e.g., Compton v. Compton, 701 So.2d 110, 112 (Fla. 5th DCA 1997); Steiner v. Romano-Steiner, 687 So.2d 21 (Fla. 5th DCA 1996). However, the supreme court has recently held that the substantial change test “applies to modification of all child custody matters.” Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005). Thus, under Wade, the substantial change test now applies to custody modifications under section 61.13(4)(c)(5). Morales v. Morales, 915 So.2d 247, 249 (Fla. 5th DCA 2005). In this case, the trial court did not consider the substantial change test in determining whether to grant the Mother’s supplemental petition for modification. Accordingly, we reverse and remand for the court to reconsider the Mother’s supplemental petition for modification of custody.

We decline the Mother’s invitation to find that the court’s findings that the Father had relocated and had failed to facilitate visitation were “implicit” findings of a substantial change in circumstances.

This substantial change test requires the movant [seeking modification of custody] must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Wade, 903 So.2d at 931 n. 2. The trial court appeared to focus on the Father’s “unilateral” move to Iowa in considering the supplemental petition for modification. However, a parent’s relocation that is contemplated by a marital settlement agreement is not a substantial change in circumstances in itself. Smith v. Smith, 927 So.2d 118, 121 (Fla. 2d DCA 2006).

Furthermore, we question whether the Father’s failure to provide the child for visitation over a six-week period constitutes a substantial, material change since the original custody determination. It is unlikely that such a time period could be sufficient for a determination that there has been a substantial change in circumstances. Although the Father did not provide the child for visitation during the fifteen-month period the Mother’s supplemental petition for modification remained pending in the trial court, the Father’s ultimate delivery of the child for forty-two days of visitation in the summer of 2005 tends to suggest that the visitation issue had been resolved. The Father strenuously asserts on appeal that he did not make arrangements for the child to visit the Mother because he could not afford to do so without the monthly child support the Mother was delinquent in paying. It may be that the child support issue has been resolved and the Father can now afford visitation; we are unable to make that determination without the missing record transcripts.

We recognize that the trial court found that the Father never intended to comply with the visitation provision of the marital settlement agreement. This finding may well be supported by evidence taken at the hearings on the Mother’s motions, but the absence of the transcripts of the hearings precludes our review of the trial court’s factual findings.

This leads to the Father’s second argument, which is that the trial court erred in refusing to consider less drastic measures to enforce visitation. We decline to rule on this argument at this time because it is premature without a finding that modification is supported by a substantial change in circumstances. It is important to note that a modification of custody can only be used in a very narrow set of circumstances as a sanction for a parent’s conduct in dissolution proceedings. For example, modification of custody is not a proper sanction for a contempt finding based on a custodial parent’s refusal to comply with a visitation decree. See, e.g., Burckle v. Burckle, 915 So.2d 747, 749 (Fla. 2d DCA 2005). Similarly, entry of a default in a custody modification proceeding is not a proper sanction for a custodial parent’s failure to comply with other types of court decrees. See, e.g., Andrews v. Andrews, 624 So.2d 391, 392 (Fla. 2d DCA 1993). While section 61.13(4)(c)(5) does provide for the modification of custody as a sanction for a custodial parent’s refusal to honor the non-custodial parent’s visitation rights, it should be done only upon the filing of a petition for modification with proper notice and only as a last resort. Furthermore, the decision to modify custody under section 61.13(4)(c)(5) must also be in the child’s best interests.

Based on the foregoing analysis, we reverse the order granting the Mother’s supplemental petition for modification of custody and remand for the court to reconsider the petition using the substantial change test. This may necessitate the taking of additional evidence depending on whether the parties presented evidence on this issue below, which we are unable to determine without the transcripts of the hearings.

Reversed and remanded.

SILBERMAN, and LaROSE, JJ., Concur.

      . We note that a custodial parent is precluded from withholding visitation from a noncustodial parent in retaliation for the noncustodial parent’s failure to pay child support. See § 61.13(4)(a). However, it is a financial reality that the noncustodial parent’s failure to pay child support may well prevent an out-of-state custodial parent from being able to afford transportation for visitation.


author: SHAHOOD, J.

text:
    John NEGRON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4838.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, John Negron, was charged by information with aggravated battery. He appeals his conviction and sentence on the lesser included offense of aggravated assault. It was alleged that he drove a motor vehicle at and struck the victim, Marvin Manning (Manning). We reverse and remand for a new trial based on the following.

On the night of the incident leading to the charges against appellant, there was a pool tournament at a local bar in which both appellant and Manning participated. After being paired up in the tournament, Manning claimed to have seen appellant cheating. Manning confronted appellant but appellant denied doing anything wrong. As Manning was walking away from appellant, appellant hit him over the shoulder with a pool stick. Manning turned toward appellant but others in the bar intervened, preventing any further confrontation in the bar.

After being asked to leave, Manning exited the bar to the back alleyway to his car. Appellant exited through the front of the bar to his car. A witness, Debra Collins, knew both the appellant and Manning. She heard them arguing and also left toward the back alleyway to her car. While in the alleyway, she talked with Manning for a couple of minutes and then saw appellant driving his truck down the alleyway. She stood in front of appellant’s truck and begged him not to do whatever he was going to do. Believing he was leaving, she got into her own car to leave. As she was driving away, she heard tires squeal and saw appellant come out of the alleyway doing about fifty miles an hour and almost “t-boned” her car. Back in the alleyway, a patron from the bar saw that Manning was injured and helped him into the bar. When the police arrived, Manning told them that his injuries were caused by appellant, who ran him over.

After the State and defense rested, the court asked appellant if he wanted any lesser included offenses presented to the jury and he stated that he wanted guilty or not guilty only with no lesser included offenses presented to the jury. The State requested the lesser included offense of aggravated assault and the defense counsel objected on appellant’s behalf. The court instructed the jury on aggravated battery and the lesser included offense of aggravated assault.

Decisions regarding jury instructions are within the sound discretion of the trial judge and will be affirmed absent prejudicial error. See generally Ryder TRS, Inc. v. Hirsch, 900 So.2d 608 (Fla. 4th DCA 2005). A jury may convict, based on the indictment or information, any attempt or lesser offense of the named offense under Florida Rule of Criminal Procedure 3.510.

An aggravated battery arises when a person who in committing a “battery” either “[ijntentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or ... [u]ses a deadly weapon.” § 784.045(l)(a), Fla. Stat. A “battery” occurs when a person “[a]etually and intentionally touches or strikes another person against the will of the other; or ... [ijntentionally causes bodily harm to another person.” § 784.03(l)(a), Fla. Stat.

An aggravated assault is an “assault” with a deadly weapon without intent to kill or with an intent to commit a felony. § 784.021, Fla. Stat. An “assault” is “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat.

An aggravated assault has different elements than an aggravated battery. See Stokes v. State, 773 So.2d 1239 (Fla. 4th DCA 2000). In order for aggravated assault to be a lesser included offense of aggravated battery, the information must charge the elements of both and there must be facts necessary to support both. Wilburn v. State, 840 So.2d 384 (Fla. 2d DCA 2003), receded from on other grounds, Chambers v. State, 880 So.2d 696 (Fla. 2d DCA 2004); see also Lawrence v. State, 685 So.2d 1356, 1357 (Fla. 2d DCA 1996) (noting that to sustain a conviction of a category two lesser included offense, the information must allege each element of that crime).

As held in Stokes:

“Aggravated assault is not a necessarily lesser included offense of aggravated battery and it can be considered an included offense only, if at all, where the information charges the elements of both and the facts necessary to support both.” Salas v. State, 591 So.2d 257, 258 (Fla. 4th DCA 1991); see Moody v. State, 597 So.2d 839 (Fla. 5th DCA 1992).

773 So.2d at 1240.

In this case, the information did not allege the necessary elements to support a lesser included instruction for aggravated assault. The information did not allege that the defendant placed Manning in fear by a threat to do violence, coupled with the apparent ability to do so.

Here, the information charged appellant only with aggravated battery. The reversal of a conviction is warranted where the information fails to allege an essential element of a crime. See, e.g., Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995) (applying the general rule to convictions on lesser included offenses of aggravated assault where the information alleged only the elements of murder and not a wellfounded fear); Range v. State, 834 So.2d 379 (Fla. 4th DCA 2003) (conviction of assault reversed where court found that defendant was charged with battery and assault is not a lesser included offense of battery).

Based on the foregoing, we hold the trial court erred in instructing the jury on aggravated assault. We accordingly reverse and remand for a new trial. On remand, the State may file a new or amended information charging appellant with aggravated assault if it so elects. See K.H. v. State, 763 So.2d 1187, 1188 n. 1 (Fla. 4th DCA 2000). Because we are reversing for a new trial we decline to address all other issues raised by appellant.

Reversed and Remanded for New Trial.

FARMER and TAYLOR, JJ., concur.


text:
    Andrew CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1875.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

GUNTHER, SHAHOOD and HAZOURI, JJ., concur.


author: MAY, J.

text:
    Devoris ALLEN, Travis Edwards and Jeffery Leon Browning, Jr., Appellants, v. STATE of Florida, Appellee.
    No. 4D06-1035.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Ira D. Karmelin, West Palm Beach, for appellants.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendants appeal their convictions and sentences for attempted robbery. In their second issue, they argue that the absence of a valid waiver of jury trial requires a reversal. The State agrees that the record fails to contain “either a written or oral waiver of a jury trial” by any of the defendants. We therefore reverse and remand the case for a new trial. Cf Tucker v. State, 559 So.2d 218 (Fla.1990) (opining that best practice is to have record evidence of both an oral and written waiver of jury trial, but affirming when there was record evidence of only a knowing and intelligent oral waiver).

Reversed and Remanded.

WARNER and HAZOURI, JJ., concur.


text:
    Adalberto RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3554.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed., Yisrael v. State, No. 4D04-2967, 2006 WL 2355519, 938 So.2d 546 (Fla. 4th DCA Aug.16, 2006).

POLEN, KLEIN and MAY, JJ., concur.


text:
    Danny HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2486.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sousa, 903 So.2d 923 (Fla.2005).

POLEN, KLEIN and MAY, JJ., concur.