author: PER CURIAM. ERVIN, J.,

text:
    Kathleen R. MACK, Appellant, v. WESTMINSTER SUNCOAST MANOR, Travelers Insurance, and C.L. Claims, Appellees.
    No. 1D05-1776.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Joey D. Oquist, St. Petersburg, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.

      Thomas A. Moore and Nicole Florentino of Moore, Peterson & Zeitler, P.A., Orlando, for Appellees.
   PER CURIAM.

We affirm the dismissal of the claimant’s petitions for benefits. Because the claimant had exhausted the grievance process under her managed care arrangement (MCA), the Judge of Compensation Claims (JCC) had jurisdiction over the claimant’s petitions. However, the resolution of the petitions continued to be governed by the MCA. See § 440.134(16), Fla. Stat. (2003). The employer/carrier (e/c) has not denied the treatment requested by the claimant. Rather, the e/c has only dictated which provider will provide the treatment. Under the terms of the MCA, the e/c has sole authority to select a specialist and although the e/c may ■ negotiate with the claimant on the matter, the e/c is not required to do so. Therefore, the JCC properly dismissed the claimant’s petitions because the e/c has acted in compliance with the terms of the MCA.

AFFIRMED.

WOLF and DAVIS, JJ., concur; ERVIN, J., dissents with opinion.

ERVIN, J.,

Dissenting.

Claimant, Kathleen Mack, appeals from a final workers’ compensation order dismissing two petitions for benefits seeking the authorization of a physiatrist for treatment of claimant’s cervical radiculopathy, as recommended by her authorized treating physician, or the authorization of a pain-management physician from the employer/carrier’s (E/C’s) managed-care arrangement, and costs and attorney’s fees. Despite finding the carrier estopped from relying on the defense of the claimant’s failure to exhaust the grievance procedure before filing her petitions for benefits, the judge of compensation claims (JCC) inconsistently dismissed the petitions because she concluded that the managed-care procedures were not exhausted in that the E/C’s offer to claimant of one specialist at a time complied with its managed-care arrangement.

The JCC’s estoppel finding is supported by competent, substantial evidence. Among other things, the JCC found that the E/C failed to respond to claimant’s documents that were clearly intended to invoke the grievance procedures; that rather than assisting the claimant in meeting the carrier’s requirements to activate the grievance procedure, the carrier did nothing, and that by the time claimant filed her second petition for benefits on November 22, 2004, the carrier had sufficient time to process and act on claimant’s first grievance, which claimant faxed to the E/C’s adjuster on September 21, 2004, requesting a specific pain-management physician, as claimant’s authorized physician had previously recommended in July 2004, which the adjuster received on August 5, 2004.

The carrier denied that it had received the grievances because they were not submitted on the forms it required; however, claimant’s counsel presented certified mail receipts and fax confirmation sheets for each document submitted. Because claimant’s attorney forwarded the grievances, a simple telephone call would have been sufficient to clarify the proper form and procedure for filing grievances and/or submitting a request for a change in physician. Instead, the carrier’s staff did nothing. Although an aggrieved employee is precluded by section 440.192(3), Florida Statutes (2003), from filing a petition for benefits under chapter 440 until the employee has exhausted the grievance procedure of the managed-care plan, the JCC’s determination of estoppel is, in my opinion, an effective finding that claimant had exhausted the grievance procedures.

The managed-care statute requires that the E/C provide services with reasonable promptness and that grievances be considered in a timely manner. See Begyn v. State Bus. & Prof l Regulations, 849 So.2d 336, 338 (Fla. 1st DCA 2003). In Begyn, the E/C failed to provide the employee with information regarding the managed-care plan, including the grievance procedures, and then failed to respond to requests for medical services and to a letter properly characterized as a grievance within the time required by rules promulgated by AHCA. This court commented that “while section 440.134(16), Florida Statutes ..., provides a presumption that a claimant has received all necessary benefits under a managed-care system, the statute does not create a presumption that the E/C necessarily fulfilled its notice duties in the grievance process.” Id. at 339. We stated that “the legislature clearly did not contemplate that a request for medical benefits should be ignored for a protracted period of time; yet, this is precisely what happened in the present case.” Id. at 338. We concluded by reversing the order denying claimant’s request- for authorization of a medical provider, and remanded the case with directions for the JCC to consider the claim on its merits.

Similarly, once the JCC made a finding in the present case that was tantamount to a determination that claimant had exhausted the grievance procedure, I conclude the JCC was, as in Begyn, obligated to consider and rule upon the merits of the petition for benefits. I would therefore reverse the order of dismissal and remand the case with directions that the E/C be required to treat the petition as a “request for service,” to negotiate the choice of a pain-management specialist with the claimant within the seven to fourteen days set forth in the managed-care plan, and to grant claimant’s request for costs and attorney’s fees.

      . The managed-care materials of record fail to contain any statement that the carrier will not accept faxed documents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephen M. TROTTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1217.
    District Court of Appeal of Florida, First District.
    May 9, 2006.
    Stephen M. Trotter, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ALLEN, WEBSTER, and HAWKES, JJ., Concur.


text:
    Willie SMITH, Petitioner, v. CAPTAIN SADLER, et al., Respondents.
    No. 1D06-1828.
    District Court of Appeal of Florida, First District.
    May 9, 2006.
    Willie Smith, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002).

ALLEN, WEBSTER, and HAWKES, JJ., concur.


author: SILBERMAN, Judge.

text:
    David REDILLA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2682.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), David Redilla, Jr., challenges his judgment and sentence for third-degree grand theft and criminal mischief. Except for two minor sentencing errors that Redilla raised in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), we affirm. See In re Anders Briefs, 581 So.2d 149, 152 (Fla. 1991) (stating that “indigents in their first appeal as of right should not lose their Anders rights simply because counsel are able to identify some relatively minor sentencing issues in ‘no merit’ briefs”).

The trial court rendered an order on May 2, 2005, that granted Redilla’s second motion to correct a sentencing error. In that order, the trial court vacated a restitution order and stated, “Within 10 days of the date of this order the Department of Corrections SHALL PREPARE an Amended Order of Community Supervision or Order of Modification of Probation striking Financial Condition 36, which requires Defendant to pay $3,545.85 in restitution.” Neither order was prepared, according to a certificate from the circuit court clerk dated May 23, 2005. Thus, we remand and direct the trial court to entel-an amended order of community supervision or an order of modification of probation striking financial condition 36 that requires Redilla to pay $3545.85 in restitution.

In its order of May 2, 2005, the trial court also ordered the clerk of the circuit court to file an amended uniform costs order to reflect the striking of the $150 court cost imposed pursuant to section 939.18, Florida Statutes (2003), and the $2 cost imposed pursuant to section 938.15, Florida Statutes (2003). The amended uniform costs order filed on June 6, 2005, deleted those costs but imposed two additional costs that had not been imposed in the original uniform costs order of May 17, 2004. Apparently, the additional costs were inadvertently imposed due to the trial court’s use of a new uniform costs order. Therefore, we direct the trial court on remand to strike the first amended uniform costs order of June 6, 2005. The trial court shall enter a second amended uniform costs order that does not include the additional $50 crime prevention court cost, pursuant to section 775.083, Florida Statutes (2004), and the additional $65 court cost, pursuant to section 939.185, Florida Statutes (2004), that were not imposed in the original uniform costs order.

Accordingly, we affirm Redilla’s judgment and sentence except that we remand for correction of the above sentencing errors.

CASANUEVA and KELLY, JJ., Concur.


text:
    Samuel ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1008.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, for appellee.
   PER CURIAM.

Affirmed. See Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005).

STONE, POLEN and FARMER, JJ., concur.


author: KELLY, Judge.

text:
    Thomas Dale SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4119.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Thomas Smith appeals from the order revoking his probation. Smith was alleged to have violated condition number three of his probation by moving from his last known residence without the permission of his probation officer. He argues that reversal is required because the State relied entirely on hearsay evidence to prove the violation. We agree and reverse. See Rowan v. State, 696 So.2d 842 (Fla. 2d DCA 1997) (holding that although hearsay testimony is admissible in a revocation hearing, it may not be the only evidence on which the revocation is based); Kipp v. State, 657 So.2d 931 (Fla. 2d DCA 1995) (same).

Reversed.

NORTHCUTT, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    Kenneth JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-160.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Kenneth Jones, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s claims for post conviction 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 issuance of this opinion, limited to claim three, addressing the requirement of availability of the witness, pursuant to Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004) (stating, “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”).

WARNER, FARMER and TAYLOR, JJ., concur.


author: PER CURIAM.'

text:
    Stephen S. BRONDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4743.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Stephen S. Bronder, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee. .
   PER CURIAM.'

Stephen S. Bronder appeals the order summarily denying his rule 3.850 motion for post-conviction relief, alleging his trial counsel was ineffective in failing to raise, in the motion to suppress his statement to the police, that the Miranda rights warning which he was read was defective. He claimed no other inculpatory evidence was adduced at trial against him, and thus, the result of the trial would have been different had his statement been suppressed. He alleged that the version of the rights he was given was the same as the one held defective in President v. State, 884 So.2d 126 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla. 2005), and he attached to his motion, as an example, the Miranda rights waiver form which was signed by his co-defendant.

As we have held before, this claim was legally sufficient. Accordingly, we reverse and remand either for the attachment of portions of the record conclusively refuting the claim or for an evidentiary hearing.

Reversed and Remanded.

POLEN, SHAHOOD and TAYLOR, JJ„ concur.

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

      . See also Roberts v. State, 874 So.2d 1225, 1229 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla. 2005).

      . He explained in his motion for rehearing that he was not asked to sign a form, but he was read his rights from a card that contained the same language, which did not properly advise him of the right to have counsel present during interrogation. According to his unsworn reply to this court, his co-defendant signed that form on the same day Defendant’s rights were read to him.

        .Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Coney v. State, 31 Fla. L. Weekly D591, 2006 WL 398431,-So.2d-(Fla. 4th DCA Feb.22, 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005).


text:
    Larry LEATHERWOOD, Appellant, v. CARDSERVICE INTERNATIONAL, INC., Appellee.
    No. 4D05-2136.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Larry Leatherwood, Pompano Beach, pro se.
    Eric G. Belsky of Johnson, Leiter & Belsky, Fort Lauderdale, for appellee.
   PER CURIAM.

In Leatherwood v. Cardservice International, Inc., 885 So.2d 997 (Fla. 4th DCA 2004), this court reversed and remanded the decision of the trial court to dismiss appellant, Larry Leatherwood’s, complaint for improper venue. Issues of fact were raised which required an evidentiary hearing.

On remand, a hearing was held by the trial court on appellee, Cardservice International, Inc.’s, motion to dismiss for improper venue. Upon the evidence presented, the trial court properly found that appellant entered into -a Merchant Agreement with appellee on the Internet. Appellant entered into the contract- by clicking on “I accept” and guarantying payment personally. Such “click agreements” have been found to be valid and enforceable. See Siedle v. Nat’l Ass’n of Sec. Dealers, 248 F.Supp.2d 1140, 1143 (M.D.Fla.2002). Pursuant to the venue provision of the Merchant Agreement, venue for any action thereon is in California. The trial court properly dismissed the complaint.

Appellant also argues and appellee concedes that the trial court erred in dismissing appellant’s complaint with prejudice. Dismissals for improper venue are without prejudice. Smith v. St. Vil, 714 So.2d 603, 605 (Fla. 4th DCA 1998). We reverse and remand for the entry of a dismissal without prejudice.

Reversed and Remanded.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Kalvin FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1510.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Carey Haughwout, Public Defender, and James W. Melntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Kalvin Flowers, argues in his appeal that he is entitled to a new trial because his trial counsel was ineffective for not objecting to the police officer’s opinion as to his guilt and in allowing prosecutorial misconduct.

We affirm his conviction on the charges of burglary with damages over $1,000 and grand theft, without prejudice to his right to raise his ineffective assistance of counsel claims in a post-conviction motion. See Bradberry v. State, 922 So.2d 457 (Fla. 4th DCA 2006).

Affirmed.

KLEIN, SHAHOOD and TAYLOR, JJ., concur.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Cheree L. PLATE, Appellee.
    No. 5D05-3496.
    District Court of Appeal of Florida, Fifth District.
    May 10, 2006.

      Charles J. Christ, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   ORFINGER, J.

The State of Florida appeals the trial court’s order dismissing its charge of obtaining a motor vehicle by fraud against Cheree L. Plate. Because there was no legal basis authorizing the court to dismiss the charge, we reverse.

The trial court, acting at its own behest, dismissed the charge against Plate, apparently in an effort to save Plate’s military career. The court indicated that the victim could “file a civil suit for whatever the damages are.” Notwithstanding the trial court’s good intentions, the dismissal over the State’s objection was an abuse of discretion. State v. Franklin, 901 So.2d 394 (Fla. 5th DCA 2005); see State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999) (holding that trial court’s sua sponte dismissal of charge constituted an improper infringement upon the State’s discretion to prosecute, notwithstanding trial court’s belief that the best interests of the public and the parties would be served by dismissal).

The dismissal is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

PALMER and MONACO, JJ, concur.


text:
    Nelson CASTILLO, Appellant, v. STATE of Florida CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 3D05-2784.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Bared & Associates, Coral Gables and Pablo Bared and Warren Diener, for appellant.
    Charles J. Crist, Jr, and Reginald D. Dixon and Diane L. Guillementte (Tallahassee), for appellee.
    Before COPE, C.J, and FLETCHER and SUAREZ, JJ.
   PER CURIAM.

The appellee Construction Industry Licensing Board [Board] has conceded error (failure to notify Castillo’s attorney as required by section 120.60(3), Florida Statutes (2005)) and has suggested that we reverse the Final Order and remand the case to the Board in order to correct its error. The Board has also conceded that Castillo has the right to petition for an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2005).

Accordingly we reverse the Final Order and remand with instructions to the Board to correct its error, thus providing Castillo the opportunity to petition for an eviden-tiary hearing pursuant to section 120.57(1), which petition shall be granted, if timely filed. At the evidentiary hearing Castillo may raise the alleged ambiguity in the settlement stipulation, and further factual and legal issues as bear on the matters related to Castillo’s entitlement to the applied — for license.

Reversed and remanded with instructions.


author: ROTHENBERG, Judge.

text:
    Gladwin BOUCICAUT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D05-2039.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Gladwin Boucicaut, in proper person.
    John D. Maher, Tallahassee, for appel-lees.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

Gladwin Boucicaut (“Boucicaut”) appeals an order of the Unemployment Appeals Commission (“Commission”) affirming a decision of an unemployment compensation appeals referee, which disqualified Bouci-caut from receiving unemployment benefits, and found that Boucicaut had received benefits for which he was not entitled. As we conclude that the referee’s findings are supported by competent substantial record evidence, we affirm. See Garcia v. Fla. Unemployment Appeals Comm’n, 872 So.2d 966, 969 (Fla. 3d DCA 2004)(holding that the appeals referee’s findings will not be overturned unless they are not supported by competent, substantial evidence in the record).

Boucicaut challenges the appeals referee’s conclusions which were adopted by the Commission, on the basis that there was conflicting evidence regarding whether Boucicaut’s discharge was due to misconduct within the meaning of the unemployment compensation statute. Credibility of a witness and the weight to be given to the evidence presented is, however, within the sound discretion of the fact finder, see Glover v. Sanford Child Care, Inc., 429 So.2d 91 (Fla. 5th DCA 1983), which in this case was the appeals referee. Thus, to challenge the factual findings of the appeals referee, Boucicaut must demonstrate that these findings were not supported by competent substantial evidence, a burden he did not meet.

Affirmed.


text:
    B.F., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-1603.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Joseph M. Albury, for appellant.
    Calianne P. Lantz, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

We affirm the final judgment terminating the mother’s parental rights given that the judgment was supported by clear and convincing evidence and that termination was the least restrictive means of protecting the minor child. See J.R. v. Dept, of Children and Families, 754 So.2d 714 (Fla. 4th DCA 1998)(affirming termination of parental rights where clear and convincing evidence showed that mother failed to substantially comply with case plan); In re T.M., 641 So.2d 410, 412-13 (Fla. 1994)(least restrictive means analysis requires only that state prove good faith effort to rehabilitate parent and unify family by providing case plan and related services).

Affirmed.


text:
    Electo ECHEVARRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3029.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Rehearing Denied June 15, 2006.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

On this appeal from convictions and sentences for first degree murder and associated crimes committed during a home invasion armed robbery, we find no error and affirm with the exception of requiring the correction of a scrivener’s error in the judgment as to count 3 consistent with the jury verdict. The defendant need not be present.

Affirmed as modified.


text:
    Franklyn DAWSON, a/k/a Franklin Tamar Dawson, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-66.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Franklyn Dawson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800. On appeal from a summary denial, this Court must reverse unless the post conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.


text:
    Sophia WOOD, Petitioner, v. MIAMI-DADE COUNTY, Clerk of Courts, Respondent.
    No. 3D05-1646.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      Richard Lee Ruben, Miami, for petitioner.
    Murray A. Greenberg, Miami-Dade County Attorney, and William X. Candela, Assistant County Attorney, for respondent.
    Before LEVY, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari and deny certiorari. Fla. R.App. P. 9.030(b)(2)(B); see Kee v. Miami-Dade County, 760 So.2d 1094 (Fla. 3d DCA 2000).


text:
    George C. HIBBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1045.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

George Hibbert (“Hibbert”), appeals his judgment.and sentence for direct criminal contempt. We reverse.

Florida Rule of Criminal Procedure 3.830 requires the trial judge to inform the defendant of the accusation of criminal contempt and inquire whether the defendant has cause to show why he should not be held in contempt and sentenced. See Fla. R.Crim. P. 3.830. Rule 3.830 also requires the trial judge to give the defendant the opportunity to present evidence of excusing or mitigating circumstances before the sentencing. See Fla. R.Crim. P. 3.830.

Here, the trial judge asked Hibbert to show cause why he should not be held in direct criminal contempt. However, the trial judge did not give Hibbert an opportunity to present evidence of mitigating circumstances or to discuss why the trial judge should or should not impose a particular sentence. Thus, the trial judge failed to follow the procedural requirements, which is fundamental error. See Garrett v. State, 876 So.2d 24 (Fla. 1st DCA 2004).

Accordingly, we reverse the trial court’s judgment and sentence for proper criminal contempt proceedings.

Reversed and remanded.


text:
    W.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-595.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See J.L. v. State, 684 So.2d 883 (Fla. 3d DCA 1996); Butler v. State, 354 So.2d 437 (Fla. 3d DCA 1978); Vickers v. State, 303 So.2d 700 (Fla. 1st DCA 1974).


author: SUAREZ, Judge.

text:
    Ray Francisco NIEVES, Appellant, v. SNAPP INDUSTRIES, INC., Appellee.
    No. 3D04-2917.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      Brett A. Weinberg and Manuel Valdivie-so, for appellant.
    Peterson Bernard and James G. Salerno, Fort Lauderdale, for appellee.
    Before COPE, C.J., and FLETCHER and SUAREZ, JJ.
   SUAREZ, Judge.

Ray Francisco Nieves (“Nieves”) appeals the trial court’s denial of his motion to enforce a settlement agreement with one of the defendants below, Snapp Industries, Inc. (“Snapp”). We affirm.

Nieves argues that the trial court erred by denying his motion to enforce a settlement agreement with Snapp. Snapp asserts that the notice of appeal is deficient and that the purported settlement agreement is barred as a matter of law.

Snapp and Nieves reached a settlement whereby Snapp would pay Nieves $5,000 in exchange for Nieves’ agreement not to oppose Snapp’s motion for summary judgment. Nieves argues this arrangement would allow him to settle with Snapp and would block Snapp’s co-defendants from making Snapp a Fabre defendant. Snapp withdrew its offer to settle after expressing concern that the arrangement might be unethical. Nieves moved the trial court to enforce the settlement. The trial court denied the motion and instructed Snapp and Nieves to either settle the matter or to pursue summary judgment. Snapp offered to settle for the $5,000. Nieves refused to accept without Snapp pursuing the unopposed summary judgment. Snapp then moved for summary judgment, which Nieves did not oppose. The trial court granted summary judgment in favor of Snapp. Nieves then sought reconsideration of his motion to enforce settlement which the trial court denied.

We affirm the trial court’s denial of Nieves’ motion to enforce. Nieves attempted to enforce his settlement agreement with Snapp in addition to obtaining a ruling on Snapp’s summary judgment motion, thereby blocking the co-defendants from making Snapp a Fabre defendant. This type of settlement agreement is barred as a matter of law. Dosdounan v. Carsten, 624 So.2d 241 (Fla.1993). The trial court correctly refused to enforce it.

Affirmed.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).


author: WELLS, Judge.

text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant/Cross-appellee, v. Kiril ANATKOV, Appellee/Cross-appellant.
    No. 3D05-397.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster and Scot E. Samis, St. Petersburg, for appellant/cross-appellee.
    David M. Shenkman; Sale & Kuehne and Benedict P. Kuehne, Miami, for appel-lee/cross-appellant.

      Before LEVY, GERSTEN and WELLS, JJ.
   WELLS, Judge.

Mercury Insurance Company of Florida appeals a determination of coverage and an award of costs and fees in favor of insured Kiril Anatkov. Anatkov cross appeals the trial court’s decision not to apply a multiplier in calculating the fees awarded to him. We affirm both the appeal and cross appeal.

On February 28, 2003, Anatkov was involved in an automobile accident with Gustavo Salazar. Salazar had liability coverage with State Farm with limits of $25,000. Anatkov had coverage with Mercury Insurance with limits of $50,000/100,000. Because his damages exceeded $25,000, Anatkov made a claim for uninsured/un-derinsured motorist (UM/UIM) benefits from Mercury. Mercury denied coverage claiming that Anatkov had waived these benefits.

Anatkov denied having waived UM/UIM benefits, but facing mounting medical bills, settled his claim against Salazar upon State Farm’s payment of $25,000. Anat-kov did not notify Mercury prior to settlement.

Two days after settling with Salazar and his insurer, Anatkov brought suit against Mercury alleging breach of contract and violation of Floridas UM/UIM statute. Mercury, which by then had discovered that Anatkov’s signature on the UM/UIM waiver form had been forged, admitted that Anatkov “was covered under an insurance contract with” Mercury, but still denied that the policy provided UM coverage. Mercury claimed instead that “contingent upon [Anatkovs] payment of an additional premium, [it] ha[d] offered and continues to offer [Anatkov] [retroactive] underinsured motorist coverage equal to the bodily injury liability limits provided ... under [Anatkov’s] policy.” Mercury also claimed that Anatkov was “barred from asserting an underinsured motorists claim” because he had extinguished Mercury’s subrogation rights by failing to provide notice to Mercury and to obtain its consent prior to settlement.

Summary judgment was entered in An-atkov’s favor, and his attorney was awarded $30,899.83 in fees and costs. Mercury appeals claiming (1) that its offer, made prior to Anatkov’s settlement with State Farm and Salazar, to provide UM/UIM coverage upon payment of a $135 premium, precludes judgment in Anatkov’s favor, see § 627.727(6)(a), Fla. Stat. (2003) (requiring an injured claimant to notify the claimant’s insurer of a proposed settlement where settlement will not fully satisfy the claim); see also Gray v. State Farm Mut. Auto. Ins. Co., 734 So.2d 1102, 1103 (Fla. 2d DCA 1999) (concluding that the failure to notify the insurer of a proposed settlement voids UM/UIM coverage unless the insured demonstrates waiver of the notification procedure or lack of prejudice on the insurer’s part); and (2) that the court erred in awarding Anatkov attorneys’ fees. Anatkov cross-appeals the trial court’s refusal to apply a risk multiplier when calculating the fee award. We disagree with both of Mercury’s arguments and affirm. We also find no merit in Anatkov’s argument on cross-appeal.

Section 627.727(1) of the Florida Statutes requires every motor vehicle liability insurance policy providing for bodily injury coverage to include uninsured motor vehicle coverage unless the insured has rejected that coverage in writing. § 627.727(1), Fla. Stat. (2003). Because Anatkov did not reject UM/UIM coverage in writing, he was entitled to this coverage by operation of law. See Quirk v. Anthony, 563 So.2d 710, 714 (Fla. 2d DCA 1990), approved, 583 So.2d 1026 (“If the underwriting file contains a signed rejection, a policy can be issued without UM. If the insured fails to sign and submit a rejection form, the carrier simply can refuse to issue a policy without UM.”).

Where, as here, an insurer denies coverage which actually exists, “the insurer has breached the contract and therefore cannot be allowed to rely upon a contractual provision prohibiting the insured from settlement of the claim with a responsible party in order to relieve itself from liability.” Aristonico Infante v. Preferred Risk Mut. Ins. Co., 364 So.2d 874, 875 (Fla. 3d DCA 1978); see also Wegener v. International Bankers Ins. Co., 494 So.2d 259, 259 (Fla. 3d DCA 1986)(con-firming that the effect of a repudiation of coverage found to be improper “was to waive any right to insist upon the insureds’ necessarily-thus-futile compliance with the various conditions to recovery—including notice and the preservation of the carrier’s subrogation rights”). By virtue of Mercury’s breach, Anatkov was relieved of the obligation to notify Mercury of the settlement with State Farm and Salazar.

Mercury also did not cure its breach, as it claims, by its subsequent “offer” of UM coverage. That offer was conditioned on payment of a premium. The offer was not accepted because no premium payment was made. Anatkov did not need to accept this offer since he already had UM/UIM coverage by virtue of Mercury’s failure to secure a valid written waiver before issuing his existing policy. See § 627.727(1), Fla. Stat. (2003). It is the breach of this coverage provision that relieved Anatkov of any obligation to notify Mercury of the settlement and entitles him to the instant judgment.

We likewise find no error in the trial court’s fee award. Mercury’s repudiation of UM/UIM coverage engendered the instant statutory and breach of contract claims and warranted a statutory fee and cost award. As observed in Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001):

If a dispute is within the scope of section 627.428 and an insured must enforce rights under a contract and a judgment is rendered against the insurer, the insurer is required to pay attorney’s fees to the insured or beneficiary. Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla.1999). This applies when an insured prevails in a declaratory judgment action regarding coverage. Aetna Cas. & Sur. Co. v. Mills, 192 So.2d 59 (Fla. 3d DCA 1966). As we observed in Sanchez v. American Ambassador Casualty Co., 559 So.2d 344 (Fla. 2d DCA 1990), the purpose of section 627.428 is to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.

A fee award was appropriate.

We also find no abuse of discretion in the trial court’s refusal to apply a risk multiplier in determining the amount of the fee award. See United Auto. Ins. Co. v. Ricardo, 916 So.2d 44, 44 (Fla. 3d DCA 2005). We therefore affirm the judgment in all respects.

Affirmed.

      . In a letter dated July 25, 2003, addressed to Anatkovs counsel, Mercury stated that it would provide UM/UIM coverage upon payment of an additional $135.00 premium. The letter was not signed, was not printed on Mercury letterhead, had no return address, was not sent by return receipt mail, and was sent to Anatkovs counsel at non-existent address. Anatkovs counsel maintained that he never received the letter. Mercury does not dispute this.


author: GREEN, J.

text:
    M.M.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-398, 3D05-2689.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge.
   GREEN, J.

This consolidated appeal stems from an adjudication of delinquency and the resulting revocation of probation for prior adjudications. For the following reasons, we reverse.

M.M.H., age 15, was charged by petition of delinquency with resisting a law enforcement officer without violence. Before the hearing, amended affidavits of violation of probation were filed in M.M.H.’s three open cases, alleging that M.M.H. had violated the terms of his probation by allegedly resisting the officer in question without violence.

During the delinquency hearing, the state presented one witness, Officer Emilio Theodoro. He testified that on August 3, 2005, at approximately 11:00 p.m., he responded to a call about “suspicious activity around a suspicious vehicle.” When he arrived at the scene, Officer Theodoro saw a vehicle that matched the description of a stolen vehicle used earlier during an armed robbery. He also noticed that the engine of the vehicle was still hot, and saw the victim’s belongings lying on the grass next to the vehicle.

Officer Theodoro’s partner made contact with the caller who reported the “suspicious vehicle” to the police. Officer Theo-doro then noticed M.M.H. riding a bicycle within close proximity to the vehicle. Officer Theodoro verbally commanded M.M.H. to come over to him to talk. According to the officer, M.M.H. “took off on the bicycle.” M.M.H. was eventually restrained by the police.

M.M.H.’s first and second motions for judgment of acquittal were both denied. After hearing arguments from both sides, the court found M.M.H. guilty as charged, and adjudicated him delinquent. As to the allegations of violating probation, the court stated that:

It is the Court’s intention to make a finding that you have, per se, violated your probation by committing the offense of resisting an officer without violence, because this Court already heard testimony [in the delinquency hearing] and found that you have committed the offense as charged in this case. So at this juncture, on these three ■ [prior] cases, I’m going to adjudicate you delinquent for violating your probation.

The court, thereafter, ordered that M.M.H. be committed to the Department of Juvenile Justice, to be placed in a moderate risk residential program, with conditional release. These appeals followed.

To prove the crime of resisting an officer without violence, the state must establish that the officer was engaged in the lawful scope of his or her duties. See B.D.H. v. State, 903 So.2d 390 (Fla. 3d DCA 2005). To meet this burden, the state claims that Officer Theodoro was acting within the lawful scope of his duty and that the adjudication of delinquency should be affirmed. We disagree.

In this case, Officer Theodoro was responding to a call about a suspicious vehicle and found M.M.H. in close proximity to that vehicle. The officer commanded M.M.H. to talk to him, and M.M.H. fled the scene.

Generally, flight, standing alone, does not constitute the crime of resisting without violence. D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004). To do so, the state must prove that “(1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.” Id. at 524 (quoting V.L. v. State, 790 So.2d 1140, 1142-43 (Fla. 5th DCA 2001)). See also D.G. v. State, 831 So.2d 256, 257 (Fla. 3d DCA 2002)(“Absent reasonable suspicion of the commission of a crime, a person has an affirmative right to avoid police contact.”). Moreover, even if a person is within a suspected crime area, flight itself, is insufficient to justify an arrest for resisting arrest without violence. See D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996)(passenger of stopped car who fled from police not guilty of obstruction without violence); S.G.K. v. State, 657 So.2d 1246 (Fla. 1st DCA 1995)(presence at scene of auto theft followed by flight when police approached insufficient to justify finding that juvenile resisted arrest without violence). Here, there is nothing in the record to demonstrate that Officer Theodoro had an “articulable well-founded suspicion of criminal activity” to justify stopping M.M.H.

Absent consent, a police officer may temporarily detain a person if the officer has a reasonable, well-founded, ar-ticulable suspicion that the person has committed, or is about to commit a crime. See State v. Taylor, 826 So.2d 399, 402 (Fla. 3d DCA 2002)(citing Popple v. State, 626 So.2d 185, 186 (Fla.1993)). Because we find that Officer Theodoro had no lawful basis to detain M.M.H., his adjudication of delinquency must be vacated. Moreover, since M.M.H.’s probation was revoked solely on the grounds that he had been adjudicated delinquent in this case, we reverse that order and instruct the court to reinstate the initial terms of M.M.H.’s probation.

Reversed and remanded with instructions.

      . M.M.H. had previously entered a plea of nolo contendere in three petitions unrelated to this case. He was placed on intensive probation for these cases.


author: COPE, C.J. WELLS, Judge

text:
    Ronald BRENNER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D05-940.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      Ronald Brenner, in proper person.
    John D. Maher, Tallahassee, for appellee Florida Unemployment Appeals Commission.
    Before COPE, C.J., and RAMIREZ and WELLS, JJ.
   COPE, C.J.

Ronald Brenner (“Claimant”) appeals the denial of his claim for unemployment compensation benefits. The claim was denied on the ground that the government position which the Claimant occupied was excluded by statute from receiving unemployment compensation benefits. We conclude that the agency erred in that determination for the time period relevant here. That is so because the Claimant’s job responsibilities were reduced effective January 5, 2003 after which he was no longer statutorily excluded from receiving unemployment compensation benefits.

In 1991, Claimant became employed by the Department of Banking & Finance as a Senior Attorney. In 1999, he was promoted to Regional Director of the South Florida region, a Senior Management Service position. In that position, he reported directly to the Office of Comptroller in Tallahassee and had complete authority over the Miami office. On January 5, 2003, the Department of Banking & Finance became the Department of Financial Services, Office of Financial Institutions and Security Regulation. At that time, although Claimant continued with the same title of Regional Director, his salary, duties and responsibilities were altered so that his position was no longer a policy-making or advisory position. Claimant’s salary was reduced to $50,000 annually. He reported to the Bureau Chief of the Bureau of Finance Regulation. Whereas the Claimant had previously supervised an office having approximately thirty employees, these were reorganized into a different unit. The Claimant was left with no supervisory authority. Effective June 30, 2003, the position of Regional Director of the South Florida region was eliminated, and Claimant’s employment was terminated.

Claimant filed a claim for unemployment compensation effective June 30, 2003 with a base period of calendar year 2002. The Commission determined that Claimant was not entitled to benefits on account of the statutory exclusion. The Claimant appealed and this court upheld the Commission’s finding. See Brenner v. Dept. of Banking & Finance, 892 So.2d 1129 (Fla. 3rd DCA 2004).

Upon receiving this ruling, the Claimant was still unemployed. He filed a new claim on June 29, 2004 with a base period of calendar year 2003. The appeals referee again ruled that because the Claimant held a Senior Management Service position, he remained excluded from unemployment compensation benefits in calendar year 2003. The Unemployment Appeals Commission approved the referee’s decision, and the Claimant has appealed.

The Claimant bases his argument on the text of the statutory exclusion. The 2002 version of the statute is applicable here. At that time the statute excluded, among other things, anyone:

4. In the employ of a governmental entity referred to in paragraph (b), if such service is performed by an individual in the exercise of duties:
d. In a position which, under or pursuant to the laws of this state, is designated as a major nontenured pol-icymaking or advisory position or a policymaking or advisory position, the performance of the duties of which ordinarily does not require more than 8 hours per week.

§ 443.036(21)(d)4., Fla. Stat. (2002) (emphasis added). The Commission denied the claim because the Claimant’s position was designated as part of the Senior Management Service. The Commission reasoned that if a position was in the Senior Management Service, the position must necessarily be a policymaking or advisory position for purposes of the unemployment compensation exclusion.

We are unable to accept the Commission’s analysis of the 2002 statute. In order for the Claimant to be excluded from unemployment compensation coverage, he had to occupy a policymaking or advisory position. See id.

To be classified in the Senior Management Service there was a different statutory test. The Senior Management Service consisted of “positions in the executive branch, the duties and responsibilities of which are primarily and essentially policy-making or managerial in nature.” § 110.402(1), Fla. Stat. (2002) (emphasis added).

Since in 2002 the two statutory definitions were different, it follows that placing a position in the Senior Management Service did not automatically mean that the position was excluded from unemployment compensation coverage. The 2002 unemployment compensation exclusion applied to policymaking or advisory positions, but not managerial positions.

In order to determine whether the Claimant was excluded from unemployment coverage under the 2002 statute, we must look to the Claimant’s duties to see if he was in a policymaking or advisory position. It is undisputed that effective January 5, 2003 there was a reorganization which resulted in the elimination of all of the Claimant’s duties which could be described as policymaking, advisory, or for that matter, managerial. At the time the Department eliminated the Claimant’s job on June 30, 2003, the 2002 statute remained in effect. Since the Claimant did not fit any of the criteria for exclusion from unemployment benefits, it follows that the Claimant is entitled to benefits.

The order now before us is reversed and the cause remanded for further proceedings consistent herewith.

RAMIREZ, J., concurs.

WELLS, Judge

(dissenting).

I respectfully dissent and would affirm the Unemployment Appeals Commission’s decision to deny benefits on the authority of Brenner v. Dept. of Banking and Fin., 892 So.2d 1129 (Fla. 3d DCA 2004) (citing to Gray v. Florida Unemployment Appeals Comm’n, 541 So.2d 1319, 1320 (Fla. 1st DCA 1989), and affirming denial of benefits to this same claimant under the 2003 version of section 443.036(21) because of his position in the Senior Management Service), and Gray, 541 So.2d at 1320 (concluding that the 1987 version of section 443.036(21), which sets out the same exclusion relevant here, “is applicable to positions in senior management service”)-

      . Effective October 1, 2003, the Legislature amended chapter 443 to specify that the exclusion from unemployment coverage includes "a position in the Senior Management Service created under s.l 10.402 § 443.1216(4)(c)4„ Fla. Stat. (2003); see ch.2003-36, §§ 30, 53, Laws of Fla.

      . Apparently no issue was made in the Claimant's prior appeal regarding which version of the unemployment compensation statute is controlling, as the prior panel relied on the 2003 version in its opinion. See Brenner, 892 So.2d at 1130. As the Claimant’s prior appeal involved a claim submitted for a different base year, 2002, and the present claim is a subsequent claim for a different base year, 2003, we see no impediment to accepting the parties' agreement that the 2002 statute is the relevant one.

      . This provision excludes from unemployment benefits service performed in the employ of a public employer in “a position that, under state law, is designated as a major nontenured policymaking or advisory position, including a position in the Senior Management Service § 443.1216(4)(c)4, Fla. Stat. (2003).

      . The relevant statute in Gray excluded from unemployment benefits service performed in the employ of a governmental entity "in a position which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position Gray, 541 So.2d at 1320.
      The 2002 version of section 443.036(21) on which the majority relies, also excluded from unemployment benefits service performed in the employ of a governmental entity in "a position which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position ...." § 443.036(2l)(d)4.d„ Fla. Stat. (2002).


author: PER CURIAM. THOMAS, J.,

text:
    Edward L. GINSBERG, Appellant, v. ChemMED CORP. d/b/a Roto Rooter Service Company, Payroll Transfers, Gallagher Bassett Services, Inc., and Crawford and Company, Appellees.
    No. 1D05-3832.
    District Court of Appeal of Florida, First District.
    May 11, 2006.

      Ivan Matusek and Raymond Burger of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for Appellant.
    Robert C. Alston of Alston & Baker, P.A., Zephyrhills; Joseph A. Corsmeier of Joseph A. Corsmeier, P.A., Clearwater, for Appellees.
   PER CURIAM.

Claimant appeals an order granting the employer/carrier’s (E/C) motion for summary final order entered by the Judge of Compensation Claims (JCC), denying and dismissing all pending claims based on the running of the statute of limitations, section 440.19, Florida Statutes (1998). Claimant argues that the JCC erred by basing the date the statute began to run on the date claimant was prescribed pain medication as remedial treatment for his compensable injury, and instead should have used the date claimant finished the course of treatment by taking the last dose of the medication within the time prescribed. We agree, and therefore reverse. However, claimant’s alternative ground for relief, that the E/C’s authorization of evaluation and treatment with a pain management physician tolls the statute of limitations, does not warrant reversal in this case.

I. BACKGROUND

On October 15, 1998, claimant, a plumber, injured both knees while working in a trench. The E/C accepted the injury as compensable and provided compensation benefits, including medical treatment. On June 27, 2002, claimant was seen by his authorized orthopedic surgeon, Dr. Koco Eaton, who diagnosed claimant with “endstage arthritis left knee.” Dr. Eaton’s report from this visit provided that claimant’s only treatment option would be total knee replacement, and pending that, pain management treatment. Dr. Eaton told claimant he could only write him one prescription for Oxycontin, a pain relief medication, and that he was being referred for pain management treatment until he decided to have the knee replacement surgery. The claimant was provided with a prescription for a thirty-day supply of Oxycontin, which was filled the same day. The E/C paid for both the prescription and the doctor’s visit.

On July 30, 2002, claimant filed a petition for authorization for pain management treatment. Shortly after this petition was filed, the E/C authorized evaluation and treatment with a pain management physician to be chosen by claimant from a carrier-approved list. In response, claimant voluntarily withdrew his petition. However, claimant did not seek treatment pursuant to this authorization until July 9, 2003.

On July 10, 2003, claimant called the E/C’s adjuster and stated he wanted a return visit with Dr. Eaton. The adjuster denied the return visit indicating that the statute of limitations had run. On July 22, 2003, more than one year after the prescription was filled, but less than one year after the thirty-day supply of pain medication would have been depleted, claimant made a return visit to Dr. Eaton on his own. However, the E/C denied the bill for this visit based on the statute of limitations.

On February 25, 2004, within one year of claimant’s second visit to Dr. Eaton’s office, claimant filed a petition for benefits requesting medical expenses, medical care under the supervision of Dr. Eaton and a pain management physician, authorized and continuing treatment with Dr. Eaton and pain management treatment of both knees, and costs and attorney’s fees. The E/C filed a motion for summary final order, alleging that the statute of limitations had run on the claim. The JCC granted this motion after rehearing, finding that the statute of limitations had run in this case. The order specifically found the following: “Case law substantiates that the time began to run from the physician’s appointment, June 27, 2002, and not from some arbitrary point in the future when the Claimant asserts that he finished taking the prescription.” The order denied and dismissed all pending claims regarding the 1998 accident.

II. ANALYSIS

Section 440.19(1), Florida Statutes (1998), provides a two-year statute of limitations for workers’ compensation claims from the date the employee knew or should have known of an injury arising out of work performed in the scope and course of employment. This statute of limitations would bar the claims in the present case unless the statute was tolled pursuant to section 440.19(2), Florida Statutes (1998). This section provides the following:

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.

§ 440.19(2), Fla. Stat. (1998) (emphasis added).

A. The Prescription Medication

Claimant argues that remedial treatment is furnished during the entire course of treatment, in this case, through the last dose of the medication taken by claimant at the end of the thirty-day prescription period. If this date is used to toll the statute of limitations as claimant suggests, then claimant’s claims are not barred by the statute of limitations. Claimant made his second visit to Dr. Eaton within one year from the date claimant’s prescription pain medication would have been depleted. Further, claimant’s petition for benefits was filed within one year of this second visit to Dr. Eaton.

While several decisions of this court cite the date the prescription was received as the date the statute of limitations begins to run, these cases do not address the narrow issue presented by claimant in this case. See Thomas v. Jacksonville Elec. Auth., 536 So.2d 310 (Fla. 1st DCA 1988) (holding that the prescribed medication in that case received on May 27, 1987, tolled the statute of limitations and therefore, the July 7, 1987 claim for benefits was timely filed); City of Orlando v. Blackburn, 519 So.2d 1017 (Fla. 1st DCA 1987) (holding that “remedial” as used in section 440.19 includes treatment that mitigates the effects of injury, such as pain medication, and that eleven prescriptions for pain medication ordered by the doctor without office visits tolled the statute of limitations so that claimant’s claim, filed within one year of the last prescription, was not barred).

In the present case, there is no dispute that the E/C knew about this course of treatment, because the E/C paid for the prescription and the doctor’s visit. Additionally, because the E/C paid for the prescription, there is no question that the pain medication was prescribed for treatment of claimant’s work-related injury. Dr. Eaton only prescribed a thirty-day supply of pain medication, and did not renew this prescription. Claimant argues that the statute of limitations should begin to run at the end of this thirty-day period.

Under the specific facts of this case, we agree with claimant, that the statute of limitations began to run at the end of this thirty-day period, so long as claimant was taking the medication as prescribed. Cf. Fuster v. E. Airlines, Inc., 545 So.2d 268 (Fla. 1st DCA 1988) (holding there was competent substantial evidence and case law to support the deputy’s finding that the wearing of a back brace, prescribed to alleviate pain, constituted remedial treatment which tolled the statute of limitations, where it was clear that the employer knew about the treatment); Taylor v. Metro. Dade County, 596 So.2d 798 (Fla. 1st DCA 1992) (citing Fuster; reversing and remanding for findings of fact where the JCC found that the statute of limitations barred the claimant’s claim, but did not address the claimant’s testimony that a back brace had been prescribed and that the claimant wore the back brace off and on during the critical two-year time period). If claimant took the pain medication as prescribed by Dr. Eaton through the end of this thirty-day time period, then remedial treatment was furnished to claimant through the end of the prescribed period.

B. The E/C’s Authorization of Treatment

As an alternative ground for reversal, claimant argues that the statute of limitations was tolled by the E/C’s authorization' of evaluation and treatment by a pain management physician. This offer of treatment occurred after claimant filed a petition for benefits on July 30, 2002, which was later voluntarily dismissed after treatment was agreed to by the E/C.

This argument does not provide an independent ground for reversal. The petition for benefits, although timely filed, does not toll the statute of limitations in this case because it was voluntarily dismissed. See McBride v. Pratt & Whitney, 909 So.2d 386 (Fla. 1st DCA 2005) (holding that the running of the statute of limitations was not tolled during the period when two earlier petitions were filed by claimant and later voluntarily dismissed). Additionally, the authorization of treatment does not toll the statute of limitations because claimant does not allege he sought remedial treatment pursuant to this authorization within one year of claimant’s June 27, 2002 appointment with Dr. Eaton. See Eagle Point Mobile Home Estates v. Smith, 475 So.2d 992 (Fla. 1st DCA 1985) (ruling that where the adjuster initially stated she “saw no problem” with requested surgery, the statute was not tolled where the E/C revoked the authorization prior to the time claimant received the surgery); Gen. Elec. Co. v. Shepard, 440 So.2d 462 (Fla. 1st DCA 1983) (providing that an outstanding order requiring treatment which has not been furnished will not toll the running of the statute of limitations).

Conclusion

Therefore, we reverse and remand for further proceedings. In order to determine when remedial treatment was “furnished” to claimant for purposes of tolling the statute of limitations, the JCC should make factual findings as to when claimant last took the medication as prescribed during the thirty-day period.

REVERSED and REMANDED with directions.

BENTON and POLSTON, JJ. CONCUR; THOMAS, J. CONCURS WITH OPINION.

THOMAS, J.,

specially concurring.

I concur because prior decisions constrain me from properly interpreting section 440.19(2), Florida Statutes (1998). See Fuster v. Eastern Airlines, Inc., 545 So.2d 268 (Fla. 1st DCA 1988); Taylor v. Metro. Dade County, 596 So.2d 798 (Fla. 1st DCA 1992). See generally, Lee v. City of Jacksonville, 616 So.2d 37, 39 (Fla.1993) (“In order for treatment to be ‘furnished by the employer,’ the employer or carrier must have actual knowledge that the claimant is receiving remedial treatment.”) In my view, the better rule and proper interpretation of the operative language would hold that the statute of limitations begins to run on the date that the drugs are prescribed, not on the date that a person consumes the last pill prescribed.

The operative language in section 440.19(2) initiates the statute of limitations with E/C’s “furnishing of remedial treatment. ...” I do not believe the language includes the time that a claimant consumes a prescription medicine which was previously provided to him by prescription. I believe that the correct interpretation of section 440.19(2) here would result in affirming the JCC’s order, as the medicine was “furnished” when Dr. Eaton provided the prescription to Claimant.

To interpret section 440.19(2), as this court did in Fuster, requires extensive factual determinations that are problematic. Here, the statute of limitations, as interpreted, will either bar or allow the claim, based on the date that Claimant took the last Oxycontin pill. Claimant must testify to establish this date, but understandably, he may not be able to accurately recall when he took a pill during a month in 2002. It is equally unlikely that there will be any other witness who can testify that they observed Claimant take a pill on a date certain four years ago.

The result here is a perfect example of why a bright-line rule is preferable, especially where the plain language of the statute supports such a rule. The Florida Supreme Court has held that bright-line rules are preferable when implementing statutes of limitations. See Silvestrone v. Edell, 721 So.2d 1173, 1176 (Fla.1998). In Silvestrone, the supreme court interpreted a professional malpractice statute of limitations to run from the date of final judgment. Id. at 1174. The court stated: “This bright-line rule will provide certainty and reduce litigation over when the statute starts to run. Without such a rule, the courts would be required to make a factual determination on a case by case basis.... ” Id. at 1176. The supreme court’s preference for a bright-line rule has been reaffirmed. Gilbride, Heller & Brown, P.A. v. Watkins, 783 So.2d 224, 226 (Fla.2001) (“This conclusion is consistent with the purposes of the bright-line rule announced in Silvestrone: to provide certainty and reduce litigation concerning when the statute starts to run.”) See also, Steele v. Kehoe, 747 So.2d 931, 933 (Fla.1999) (requiring a convicted defendant to obtain postconviction relief before maintaining a malpractice action “provides a bright line for determining when the statute of limitations runs”). Similarly, parties in workers’ compensation cases need certainty and a rule which reduces litigation.

Enforcing a statute of limitations on the kind of evaluations necessary here will not likely produce reliable factual determinations. The proper administration of justice, as well as the plain language of the statute, compels that courts should interpret the operative language to apply to the date the drug is prescribed, not the date the drug is consumed. This interpretation would establish a bright-line rule that is easily determined without the need for litigation and possibly unreliable factual determinations.

In the alternative, a better rule would simply require that the statute of limitations begins to run on the date the claimant fills the prescription, which also would constitute “furnishing” treatment. This rule would eliminate the need for litigation in most cases, as records would establish when a prescription was filled.

Because I am constrained by this court’s prior decisions in Fuster and Taylor, I concur in the majority opinion.

      . Because knowledge of the treatment in this case is not at issue, we do not address whether the E/C must have actual knowledge that claimant is receiving remedial treatment in the form of prescription medication in order for the treatment to be furnished by the E/C. See Lee v. City of Jacksonville, 616 So.2d 37 (Fla. 1993) (holding that, where the claimant was continuing to use a prescribed TENS unit to control pain two years after it was prescribed, "[i]n order for treatment to be 'furnished by the employer,' the employer or carrier must have actual knowledge that the claimant is receiving remedial treatment”). But see Sol Dale Bldgs., Inc. v. Schweickert, 656 So.2d 606 (Fla. 1st DCA 1995) (providing that the holding of Lee only applies to a claimant's continuing use of medical devices).


author: BROWNING, J.

text:
    Harvey Lee JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1124.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant challenges án order that he pay restitution. Appellant’s absence from the restitution hearing necessitates a new restitution hearing. See Whitten v. State, 830 So.2d 247, 248 (Fla. 4th DCA 2002); Papageorge v. State, 710 So.2d 53, 55 (Fla. 4th DCA 1998). This fact renders the other issues on appeal moot. We note what appears to be a scrivener’s error in the sentencing documents, ordering $268.96 in restitution to the victim in this case rather than, as Appellant agreed in his plea, in connection with his misdemean- or case of passing a worthless check in that amount.

Accordingly, we hereby REVERSE the restitution order and REMAND for a new restitution hearing.

WOLF and WEBSTER, JJ., concur.


text:
    Charles J. GATTON, Beverly E. Gatton and Contemporary Management, Inc., Appellants, v. FIRST FEDERAL SAVINGS BANK OF FLORIDA, Appellee.
    No. 1D06-0816.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Brent W. Siegel and W. Charles Hughes, Gainesville, for Appellants Charles J. Gatton and Beverly E. Gatton.
    Andrew J. Decker, III, Live Oak, for Appellee.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of February 28, 2006, the Court has determined that the order on appeal is not final. See Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999) (holding that an order determining entitlement to judgment without actual entry of judgment or other indicia of finality is not a final judgment). Accordingly, the appeal is hereby dismissed for lack of jurisdiction, In light of this dismissal, the Joint Motion to Vacate Trial Court’s Order and Remand is denied as moot.

ALLEN, WOLF, and WEBSTER, JJ., concur.


text:
    LAZY DAYS’ RV CENTER, INC., Appellant, v. Madalynn A. SHEPLEY, Appellee.
    No. 1D06-1136.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Richard C. McCrea, Jr., and Luisette Gierbolini of Zinober & McCrea, P.A., Tampa, for Appellant.
    Craig L. Berman, St. Petersburg, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 10, 2006, the Court has determined that the order is not a final appealable order. See Dept. of Corrections v. Sautter, 751 So.2d 163 (Fla. 1st DCA 2000); see also Mathis v. Dep’t of Corrections, 726 So.2d 389 (Fla. 1st DCA 1999).

Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

ALLEN, WOLF, and WEBSTER, JJ., concur.


author: GRIFFIN, J. THOMPSON, J.,

text:
    Juan Raul CUERVO, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3879.
    District Court of Appeal of Florida, Fifth District.
    May 12, 2006.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Juan Raul Cuervo [“Cuervo”] appeals his conviction of attempted first-degree murder with a weapon and burglary of a conveyance with an assault or battery with a weapon. He argues that the trial court erred by denying his motion to suppress his confession because it was involuntarily made without a free and intelligent waiver of his right to remain silent. We affirm.

The victim lived in her sister’s house; Cuervo lived in the garage. On the evening of the attack, Cuervo hid in the victim’s vehicle and emerged from the rear seat while she was driving. He held a knife to her throat and said that her day had come — and she was going to die. He continuously stabbed her until she escaped the vehicle. He then exited the vehicle and continued to stab her. She finally was able to flag down a passing vehicle, and law enforcement was called.

Law enforcement apprehended Cuervo the next day and read him his Miranda rights. Deputy Garcia translated for Detective Palmieri because Cuervo could not speak English. Garcia asked Cuervo, “Do you wish to talk about the matter and make a statement, yes or no?” Cuervo responded, “No, I do not want to declare anything. I just — I do not want to declare anything.” Detective Palmieri noticed that the Miranda form had not been initialed or signed, and she asked Officer Garcia to review the rights again and to have Cuervo do so. The following exchange then occurred:

Officer Garcia: (Explains Miranda rights in Spanish.)
Detective Palmieri: Please explain to him that at this time if he does wish to speak with us that he can give us his side of the story. If he doesn’t wish to, that’s his right. He does not have to. Just let him know that.
Officer Garcia: He is saying that he does — he does not wish to speak because he doesn’t know if the victim already said anything or the victim’s mother, because he’s afraid that they’ve been here for 30 years or more and that they can use anything against him to (indiscernible).
Detective Palmieri: Okay. Does he have an attorney that we can speak with?
Officer Garcia: He doesn’t know anybody in this country, and he does not have an attorney. He’s by himself in this country. He doesn’t have any family (inaudible).
Detective Palmieri: Okay. So at this time, he’s refusing to talk to us?
Officer Garcia: He says he — if you ask him a — questions, he will answer them although if he feels like he doesn’t want to answer that one, then he won’t answer that one.
Detective Palmieri: Tell him that’s fine. He doesn’t have to answer any question that I ask.

In response to the ensuing questions, Cuervo then related information largely consistent with the victim’s account of the events. Cuervo said that the victim had been driving him crazy, he was lying in the rear seat of her vehicle when she left for work, a twelve-inch knife was in the ear, and he only intended to talk to her, but he got angry and began to stab her.

During the suppression hearing, Palmi-eri explained why she did not cease communicating with Cuervo:

Well, ... there was the communication barrier.... Originally, I told Deputy Garcia to have him — read him the rights, and to have him initial to make sure he understands. And, I guess, at that point Deputy Garcia told me he does not want to talk. But when I looked down at the paperwork, it showed that he did not sign it. So I told him please go back, have him initial it, and make sure he understands. And I said make sure he understands this is his opportunity to speak. But I just wanted to make sure that was clear, ... I wanted to make sure he knew his rights, and I wanted it initialed.

The State’s position was that Cuervo made equivocal responses. The State pointed out that in the leading Florida case, Owen v. State, 862 So.2d 687 (Fla. 2003), the statements “I don’t want to talk about it,” and, “I’d rather not talk about it,” were deemed equivocal. The State argued that Cuervo merely made “cryptic statements” and, even if Cuervo had made an unambiguous statement, the police were only prevented from asking substantive questions.

The trial court found that Cuervo’s statements were ambiguous and that the exchange that followed was only for clarification, and did not amount to a violation of Cuervo’s constitutional rights. We agree that Cuervo’s statements were not subject to suppression.

At the very least, the brief exchange between Palmieri and Cuervo, with Garcia translating, was sufficiently uncertain to allow clarifying questions. The entire dialogue took only about five minutes and arose in the context of a translation. Cuervo began by responding that he did not want to “declare anything.” The follow-up question elicited from him an odd narrative about his family that was the opposite of “not speaking” and which compounded the ambiguity about whether he wished “to speak” or not. In response to the question about whether he had counsel the police could talk to, he responded by volunteering to answer questions put to him — or not — as he chose. In the entire exchange, there was manifestly no coercion of any sort, no effort to overcome a settled decision to invoke his right to remain silent, no interrogation.

Police can certainly clarify an ambiguous exchange with a suspect, although they are under no obligation to do so. See Owen, 862 So.2d at 697-698. They may also give multiple Miranda warnings, to ascertain a defendant’s intent. Sotolongo v. State, 787 So.2d 915 (Fla. 3d DCA 2001). They are also permitted to continue to communicate with a defendant even after he has invoked his right to remain silent. Everett v. State, 893 So.2d 1278 (Fla.2004) (law enforcement officer’s request for a consent to search from a defendant in custody who has invoked the right to counsel does not violate the Fifth Amendment). What is prohibited following the invocation of rights is custodial interrogation or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), “[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Id. at 302, 100 S.Ct. 1682. Also prohibited are persistent efforts to wear down a suspect’s resistance and make him change his mind about invoking his rights. Michigan v. Mosley, 423 U.S. 96, 105, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). However, neither circumstance was present in this case.

Bright lines are valuable tools in this area of the law, but there is nothing in this brief exchange, as it is communicated back and forth in two languages for which the protection of Miranda is required. When asked point blank if he was refusing to speak, Cuervo could simply have said, “yes.” He chose, instead, to hear the investigator’s questions and to respond — or not, as he chose.

AFFIRMED.

ORFINGER, J., concurs.

THOMPSON, J., dissents, with opinion.

THOMPSON, J.,

dissenting, with opinion.

I respectfully dissent. First, I acknowledge the majority has objectively and neutrally stated the facts from the record on appeal. I simply restate certain facts from the suppression hearing for emphasis before discussing my basis for dissenting.

During the suppression hearing, Officer Palmieri conceded that Cuervo twice stated he did not wish to speak to them. Palmieri explained why questioning continued:

Well, ... there was the communication barrier.... Originally, I told Deputy Garcia to have him — read him the rights, and to have him initial to make sure he understands. And, I guess, at that point Deputy Garcia told me he does not want to talk. But when I looked down at the paperwork, it showed that he did not sign it. So I told him please go back, have him initial it, and make sure he understands. And I said make sure he understands this is his opportunity to speak. But I just wanted to make sure that was clear, ... I wanted to make sure he knew his rights, and I wanted it initialed.

The trial court found that Cuervo’s statements were ambiguous and that Pal-mieri’s question about not wanting to talk was only clarification; therefore, it denied Cuervo’s motion. Here, I believe the trial court erred.

I presume that the trial court’s findings of fact are correct, but independently review mixed questions of law and fact arising in the context of the Fifth Amendment and Article I, section 9 of the Florida Constitution. See Globe v. State, 877 So.2d 663, 668-69 (Fla.2004). The admissibility of statements obtained after Cuervo expressly decided to remain silent depends on “whether his right to cut off questioning was scrupulously honored.” See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (citation and internal quotation marks omitted); Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005); Moore v. State, 798 So.2d 50, 52 (Fla. 1st DCA 2001). Here, I don’t think it was.

If the suspect clearly indicates that he does not want to be questioned, questioning must stop immediately. Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; Globe, 877 So.2d at 669; Traylor v. State, 596 So.2d 957, 966 (Fla.1992); Dooley v. State, 743 So.2d 65, 68 (Fla. 4th DCA 1999). In Globe, the supreme court considered five factors derived from Mosley to determine whether, under the totality of the circumstances, the suspect’s Miranda rights were violated when questioning resumed after his invocation of the right to silence:

First, Mosley was informed of his rights both times before questioning began. Second, the officer immediately ceased questioning when Mosley unequivocally said he did not want to talk about the burglaries. Third, there was a significant lapse of time between the questioning on the burglary and the questioning on the homicide. Fourth, the second episode of questioning took place in a different location. Fifth, the second episode involved a different crime.

Globe, 877 So.2d at 670.

The Supreme Court’s conclusion in Mosley is instructive:

This is not a case ... where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.

423 U.S. at 105, 96 S.Ct. 321.

Here, Cuervo was informed of his rights. However, the officers did not cease questioning about the same crime after Cuervo indicated he did not want to talk, and they did not conduct questioning at a different location or after any time lapse. Although the officers did not need to persist in repeated efforts to make Cuervo change his mind, they did not scrupulously honor his invocation of silence.

The majority cites State v. Owen, 696 So.2d 715 (Fla.1997), and related cases for the proposition that the police need not ask clarifying questions, let alone stop interrogations, when suspects ambiguously invoke Fifth Amendment rights. Owen, 696 So.2d at 719. The majority relies on Owen to claim that Cuervo’s statements were ambiguous because phrases such as “I don’t want to talk about it” and “I’d rather not talk about it” are equivocal statements. I think Owen is inapposite.

In contrast to Owen, Cuervo made two statements that clearly showed he did not wish to speak to the police. Invocation of the Fifth Amendment should not require “criminal suspects to speak with the discrimination of an Oxford don.” Davis v. United States, 512 U.S. 452, 476, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (Souter, J., concurring). Both officers specifically testified that Cuervo stated he did not want to speak to them; that expression sufficed. See Smith v. State, 915 So.2d 692 (Fla. 3d DCA 2005) (dismissing State’s contention that defendant’s assertion was ambiguous). Courts have held that admitting statements after such an expression is error, even if improper questioning quickly leads a suspect to change his mind. See Dooley, 743 So.2d at 67-69.

Here, the State’s argument that Palmi-eri’s questions were clarifying rather than substantive is sleight of hand. Taken to its logical conclusion, an officer can testify that clarifying questioning continued because the defendant appeared confused or puzzled. An officer could also state that, in light of defendant’s minimal education, clarification was needed to be sure the defendant understood his rights. If nothing else, Miranda stands for the proposition that police questioning must stop when the defendant invokes his rights. To reiterate, if the suspect clearly indicates that he does not want to be questioned, interrogation must cease. Globe, 877 So.2d at 669; Traylor, 596 So.2d at 966.

Interrogation occurs when a suspect is subjected to express questions or other actions by a state agent that a reasonable person would conclude are designed to lead to incriminating responses. Traylor, 596 So.2d at 966 n. 17; Moore, 798 So.2d at 53. Tangential statements and non-substantive questions may constitute interrogation. Origi, 912 So.2d 69 (holding that suspect’s response to the officer’s statement, “[tjhat’s a lot of drugs you had,” was inadmissible); Moore, 798 So.2d at 52 (ruling that defendant’s response, that clothes found in one hotel room were his, was inadmissible). Furthermore, Palmieri’s intention as to whether she was trying to elicit an incriminating response is not dis-positive. See Moore, 798 So.2d at 53. Her first clarification resulted from the fact Cuervo had not initialed the form acknowledging his rights. Cuervo had already invoked them. Her second clarification sprang from her opinion that Cuervo sounded like he was debating whether he wanted to talk. Regardless of the suspect’s reason for saying nothing, it is not the officer’s prerogative to examine whether the suspect really means it. Questioning must cease and may resume under conditions that satisfy Globe. Palmieri’s questions could have only led to one of two results: Cuervo remained silent, or he relented and provided incriminating information. This constituted questioning that should have ceased when Cuervo unequivocally stated he did not want to make a statement, and I do not deem this error to be harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). Accordingly, I would reverse and remand for further proceedings.

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

      . As the supreme court clarified, the first question to Owen concerned whether he deliberately targeted a house, and the second question concerned the location of a bicycle. “In both statements it was unclear whether Owen was referring to the immediate topic of discussion, i.e., the house and the bicycle, or to the underlying right to cut off questioning.” Almeida v. State, 737 So.2d 520, 523 (Fla. 1999).


text:
    Willie E. SHULER, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2161.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Nancy A. Daniels, Public Defender, Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The appellant challenges his convictions for possession of a firearm by a convicted felon and driving while license suspended or revoked. Although his other arguments lack merit, the appellant correctly argues that the trial court erred in denying his motion for a severance of the charges. See Tucker v. State, 884 So.2d 168 (Fla. 2d DCA 2004); State v. Vazquez, 419 So.2d 1088 (Fla.1982). The appellant’s conviction for driving while license suspended or revoked is therefore reversed and the case is remanded on that count. The conviction for possession of a firearm by a convicted felon is not affected by the trial court’s error and is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    Warren R. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5528.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Clifton W. Wilson, Jr., P.A., Lake City, for Petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted and the 'appeal will proceed in case number 1D05-5612.

DAVIS, POLSTON, and THOMAS, JJ., concur.


text:
    Joseph DOMBROWSKY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0611.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Luke Newman, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General; Trisha Meggs Pate and Christine Ann Guard, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the August 11, 2005, order denying motion for post conviction relief in Bay County Circuit Court case number 01-2250C. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

DAVIS, POLSTON, and THOMAS, JJ., concur.


text:
    Timothy E. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-3812.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Timothy E. White, pro se, Petitioner.

      Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the April 11, 2005, order denying motion for post conviction relief in Duval County Circuit Court case number 16-1992-CF-4672-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

DAVIS, POLSTON, and THOMAS, JJ., concur.


text:
    Reginald WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5236.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Reginald Wright, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003) (holding that pro se pleadings from defendants who are represented by counsel in the pending criminal proceedings are unauthorized).

DAVIS, POLSTON, and THOMAS, JJ., concur.


text:
    Brian BALDWIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-6108.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Brian Baldwin, pro se, Petitioner.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the October 12, 2005, order denying motion for post conviction relief in Leon County Circuit Court case numbers 03-CF-298 and 99-CF-5097. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal.

PETITION GRANTED.

DAVIS, POLSTON, and THOMAS, JJ., concur.


text:
    Vincent A. HOLLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0419.
    District Court of Appeal of Florida, First District.
    May 15, 2006.
    Vincent A. Holly, pro se, Petitionér.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s recent issuance of an order to show cause' and the filing of a response below, we conclude that the granting of mandamus relief is not warranted. We do, however, encourage the circuit court to promptly rule on the merits of the claim before it. Munn v. Florida Parole Comm., 807 So.2d 733 (Fla. 1st DCA 2002).

PETITION DENIED.

DAVIS, POLSTON, and THOMAS, JJ., Concur.


text:
    Henry CUESTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-251.
    District Court of Appeal of Florida, Third District.
    May 15, 2006.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   PER CURIAM.

Henry Cuesta appeals a contempt judgment, challenging certain special conditions contained in the judgment. We strike the special conditions.

Cuesta is a prisoner serving a life sentence for attempted first degree murder with a firearm. The state sought Cuesta’s testimony against his co-defendant, which Cuesta refused to provide. Specifically, Cuesta refused to testify because he feared retribution from other prisoners for being a “snitch.”

At the trial of the co-defendant, Cuesta refused to testify. As a consequence the trial court found him to be in criminal contempt and sentenced him to six months in Dade County jail with loss of privileges, including no phone, family or contact visits, exercise, television, library or commissary.

Although we affirm the finding of criminal contempt, we strike the special conditions added to the sentence imposed. We do so “[b]ecause the trial court is without jurisdiction and lacks the authority to regulate the treatment of prison inmates.” Moore v. Burns, 796 So.2d 1261 (Fla. 3d DCA 2001); Singletary v. Acosta, 659 So.2d 449, 450 (Fla. 3d DCA 1995) (“[T]he trial court wholly lacks authority to regulate the treatment and placement of a sentenced defendant in the prison system.”). See also Moore v. Peavey, 729 So.2d 494, 495 (Fla. 5th DCA 1999); Singletary v. Carpenter, 705 So.2d 110 (Fla. 2d DCA 1998). This rule applies to county jails as well as to facilities run by the Department of Corrections. McCrimager v. State, 919 So.2d 673, 674 (Fla. 1st DCA 2006)(striking provision for “hard labor” in county jail sentence).

We are not insensitive to the frustrations of the trial court in desiring to punish Cuesta for failing to comply with its order to testify, but the court lacked the authority to impose the conditions. See A.A. v. Rolle, 604 So.2d 813, 819 (Fla.1992). Accordingly we strike the special conditions.

This ruling is effective immediately and will not be delayed by the filing of a motion for rehearing or other post-decision motion.

Affirmed as modified.


text:
    Johnny BEATON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1051.
    District Court of Appeal of Florida, First District.
    May 16, 2006.

      Johnny Beaton, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

ALLEN, WEBSTER, and HAWKES, JJ., concur.


text:
    Willie SMITH, Petitioner, v. Lt. STEVENSON, et al. Respondents.
    No. 1D06-1827.
    District Court of Appeal of Florida, First District.
    May 16, 2006.
    Willie Smith, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002).

ALLEN, WEBSTER, and HAWKES, JJ., concur.


text:
    Robert STABAK, Appellant, v. TROPICAL BREEZE ESTATES, INC., Appellee.
    No. 4D05-3577.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Robert Stabak, Boynton Beach, pro se.
    John R. Sheppard, Jr. of Becker & Po-liakoff, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

Reversed. See Stabak v. Tropical Breeze Estates, Inc., 925 So.2d 1104 (Fla. 4th DCA 2006).

STONE, POLEN and FARMER, JJ., concur.


text:
    Steve FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-983.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

This is an appeal from an order summarily denying a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

We disagree with the state’s position that this motion was properly denied as successive. This motion attacked a different final proceeding than an earlier 3.850 motion.

We affirm the summary denial on the merits. The circuit court’s handling of the misdemeanor cases was in the context of deciding whether appellant was guilty of violating his probation on a felony offense. The circuit court had jurisdiction.

STONE, FARMER and GROSS, JJ., concur.


text:
    James L. TATE, Jr., Appellant, v. James V. CROSBY, etc., et al., Appellee.
    No. 4D05-3321.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    James L. Tate, Jr., Raiford, pro se.
    No appearance for appellee. ■
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315.

STEVENSON, C.J., STONE and WARNER, JJ., concur.