author: SHAHOOD, J.

text:
    Richard S. ROSS, Appellant, v. Dr. Diane BLANK, Appellee.
    No. 4D06-2712.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied May 11, 2007.

      Richard S. Ross, Fort Lauderdale, pro se.
    Anne C. Sullivan and Miriam R. Merlo of Gaebe, Mullen, Antonelli, Esco & DiMatteo, Coral Gables, for appellee.
   SHAHOOD, J.

Richard S. Ross (“appellant”) appeals (1) the trial court’s order and final judgment granting final summary judgment in favor of Dr. Diane Blank (“Blank”) on Count I of Ross’s Second Amended Complaint, (2) the trial court’s order granting Blank’s Motion for Sanctions pursuant to section 57.105, Florida Statutes, and (3) the trial court’s order denying appellant’s motion for in camera inspection of certain documents.

This case stems from the dissolution of appellant’s marriage. The wife met with Blank, a practicing psychologist, several times in connection with the divorce proceeding. On one occasion, the wife took the older of the couple’s two daughters with her. The wife asked the daughter to discuss with Dr. Blank the situation of the older daughter showering with appellant. The wife also brought the couple’s younger daughter with her to see Blank at a different counseling session.

Appellant learned about the counseling session between Blank and his older daughter. He contacted Blank to find out what had transpired. On May 21, 2002, appellant met briefly with the wife, the older child, and Blank.

Blank subsequently consulted Dr. William Samek, a colleague with whom she was not previously familiar, for guidance about her reporting responsibilities to the Department of Children and Families (“DCF”) regarding suspected sexual abuse. Blank presented the suspected abuse situation to Dr. Samek in the form of a hypothetical, but with the understanding it was an actual case she was working. Dr. Samek was of the opinion there was sufficient evidence to suspect the possibility of child abuse by the father against the daughter. Blank made a report to DCF of a possible threat of harm regarding appellant.

Appellant sued Blank for defamation per se and negligence. Appellant alleged that Blank’s failure to report any suspected abuse to DCF from March 19, 2002, to June 10, 2002, coupled with Blank’s admission that she knew she had a duty to report suspected abuse, was evidence that Blank did not in fact suspect appellant had committed child abuse. Appellant claimed that Blank filed the DCF report in retaliation for appellant having her banned from further involvement with the children as psychological counselor in the divorce proceeding. Appellant alleged that Blank knew his wife’s allegations were not reportable because she was informed of this by DCF, that the reporting was made maliciously for the purpose of hurting him, and that the reporting caused him mental anguish, torment, and humiliation.

Blank filed a motion for summary judgment in which she argued that her statements were made in accordance with the mandatory reporting requirements imposed on her by section 39.201(1), Florida Statutes, and that statements made in compliance therewith are immune from civil liability pursuant to section 39.203(l)(a), Florida Statutes. The motion also argued that the other allegedly defamatory statements made by Blank fell under the litigation privilege because they were made in the course of legal proceedings. As to appellant’s negligence claim, the motion argued that Blank owed no duty to appellant because he was not her patient. The trial court granted Blank’s motion for summary judgment as to the defamation claim and denied the motion as to the negligence claim. Appellant later voluntarily dismissed the negligence claim.

Blank also filed a motion for attorney’s fees against appellant under section 57.105, Florida Statutes. The motion alleged that appellant was aware it was Blank’s duty to report the suspected abuse, that appellant had no evidence that any defamatory statement was ever made to Dr. Samek, and that appellant was aware he was not a patient of Blank sufficient to satisfy the duty for malpractice. The motion sought sanctions against appellant for filing a frivolous suit. The trial court granted this motion as to the defamation claim and ordered that a hearing to determine the amount of fees and costs would be set at a later date.

Appellant filed a motion for relief from the court’s order for sanctions and the summary judgment on the defamation count. He argued that Blank could still be liable for defamation despite having a duty to report suspected abuse to DCF. Appellant further requested that the court conduct an in camera review of the DCF report filed by Blank. The court declined appellant’s request to inspect the DCF report in camera.

Section 39.201, Florida Statutes, sets out the mandatory reporting requirement for suspected child abuse. The statute names a non-exclusive list of professions such as physicians, teachers, and law enforcement officers, and requires that any of them “who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare shall report such knowledge or suspicion to the department....” § 39.201, Fla. Stat. (2002). Section 39.203(l)(a), Florida Statutes (2002), provides immunity from liability in connection with such reporting:

Any person, official, or institution participating in good faith in any act authorized or required by this chapter, or reporting in good faith any instance of child abuse, abandonment, or neglect to the department or any law enforcement agency, shall be immune from any civil or criminal liability which might otherwise result by reason of such action.

The First District recently decided the similar case of Urquhart v. Helmich, 947 So.2d 539 (Fla. 1st DCA 2006). In Urquhart, a child’s parents sued a doctor for intentional infliction of emotional distress. Id. at 540. The parents alleged that the doctor reported the child’s injury to state authorities as possibly caused by abuse or neglect in order to spite the parents for arguing with her about the infant’s care. Id. at 541. The doctor moved for summary judgment and provided affidavits from several other doctors stating that under the circumstances she had a duty to report the injury. Id. In opposition to summary judgment, the Urquharts argued that the doctor’s alleged anger and desire to refute one of their explanations for the child’s injury provided disputed factual issues about the doctor’s motive. Id. The trial court found the doctor was immune from civil liability as a matter of law and granted summary judgment in her favor. Id.

In examining the relationship between the mandatory reporting requirement of section 39.201 and the grant of immunity provided to those who make a report by section 39.203, the First District drew a distinction between the immunity provided to an ordinary citizen who makes a report and a doctor who reports possible abuse discovered in the course of treatment. Id. at 542. The court found that the doctor’s feelings about the suspected abuser are irrelevant because the report is required by law. Id. The court rejected a reading of the statutes that “would lead to a conclusion that the legislature had exposed a doctor to civil liability for doing nothing more than what it has required the doctor to do under penalty of law.” Id.

Like the parents in Urquhart, appellant alleged malicious motive on the part of a health professional who reported suspected abuse to DCF. The triable issues of fact that appellant claims exist are insufficient to avoid summary judgment for the same reason as those advanced by the Urquharts: if a reasonable basis existed for Blank to report suspected abuse, her motives in doing so were irrelevant because she was required to report by the statute. The record supports the trial court’s finding that Blank had a reasonable basis to suspect abuse under these circumstances. Blank’s affidavit states that in the spring of 2002 she was informed by appellant’s wife that appellant showered with one of the daughters and kept naked pictures of the daughters on his desk and in his car.

Appellant also claimed defamation for statements Blank allegedly made to two individuals: Dr. Martha Jacobsen, the psychologist who was the court-appointed custodial evaluator in the custody dispute; and Catherine Roselli, the guardian ad litem. Blank allegedly told Dr. Jacobsen that appellant met the criteria for a pedophile. Blank allegedly told Ro-selli that appellant was a pedophile or sexual abuser. Appellant’s argument on this point is without merit due to the litigation privilege. “[Statements made ‘in connection with’ or ‘in the course of an existing judicial proceeding are protected by absolute immunity, even if they are not necessarily made in court or under oath.” Fariello v. Gavin, 873 So.2d 1243, 1244 (Fla. 5th DCA 2004); see also Stucchio v. Tincher, 726 So.2d 372, 374 (Fla. 5th DCA 1999). The falsity or maliciousness of the alleged statements is irrelevant to this analysis. Id. The statements were absolutely privileged as made in the course of litigation. Appellant has failed to demonstrate the trial court erred in granting summary judgment of his defamation claim.

As his second issue, appellant contends that the trial court abused its discretion in sanctioning him under section 57.105, Florida Statutes. We find that this issue is not ripe for appellate review because the trial court did not fix the amount of fees to be paid and explicitly contemplated another hearing for that purpose. See Boyce v. Cluett, 672 So.2d 858, 860 (Fla. 4th DCA 1996); Winkelman v. Toll, 632 So.2d 130, 131-32 (Fla. 4th DCA 1994). We dismiss the appeal from the sanction order as premature, but also note that the order contains no finding that appellant’s defamation claim lacked any factual or legal support. See Russo & Baker, P.A. v. Fernandez, 752 So.2d 716, 717 (Fla. 3d DCA 2000)(reversing attorney’s fee award where trial court’s order failed to contain finding of complete absence of justiciable issue of law or fact).

Finally, appellant claims the trial court abused its discretion by failing to conduct an in camera review of a DCF report. Appellant argued that the report contained an admission by Blank that she actually did not suspect appellant abused his children. Appellant believes that the report is relevant to determination of his defamation claim.

The standard of review of the trial court’s decision not to conduct an in camera inspection of the DCF report is whether the trial court abused its discretion. Elders v. State, 849 So.2d 331, 332 (Fla. 2d DCA 2003). Section 39.202, Florida Statutes, governs confidentiality of reports and records in cases of child abuse or neglect. That statute allows a trial court to review a DCF report in camera “upon its finding that access to such records may be necessary for the determination of an issue before the court.” § 39.202(f), Fla. Stat. (2005).

Having found that Blank was required to report the suspected abuse regardless of her motive, there was no issue to be determined by the court which would have required review of the report. The trial court did not abuse its discretion in refusing to examine the DCF report in camera.

Affirmed in part, Dismissed in part.

KLEIN, J., and REYES, ISRAEL U., Associate Judge, concur.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Arthur ROSS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-2825.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied June 13, 2007.
    Arthur Ross, Daytona Beach, pro se.
    Bill McCullom, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent.
   WARNER, J.

Petitioner Arthur Ross brings this petition alleging ineffective assistance of appellate counsel for counsel’s failure to challenge his resentencing by a successor judge. Ross alleges that the successor judge did not comply with the requirements of Florida Rule of Criminal Procedure 3.700(c)(1) in that the judge did not sufficiently familiarize himself with the facts of the case before passing sentence. Ross claims that appellate counsel should have filed a rule 3.800(b)(2) motion to preserve this error. We deny the petition as we conclude that appellate counsel was not ineffective for failing to challenge the re-sentencing judge, as the successor judge reviewed the file, obtained the guidelines scoresheet, and most importantly, reviewed the plea agreement before imposing the sentence.

Ross was originally sentenced pursuant to a plea agreement for two counts of burglary, two counts of grand theft, and various other charges. He received concurrent sentences on all charges, the longest being fifteen years for the burglary charges. The trial court sentenced him as a prison releasee reoffender. On postcon-viction relief, this court determined that he did not qualify as a PRR and remanded for a non-PRR sentence. See Ross v. State, 901 So.2d 252 (Fla. 4th DCA 2005). At resentencing, both the state and the defense agreed that the original plea agreement called for fifteen-year sentences for the burglary charges with all sentences running concurrently. Ross asked for a lower sentence, because he had turned his life around in prison. The original trial judge had retired, so a successor judge sentenced Ross in accordance with the plea agreement.

The new sentence was appealed, and appellate counsel filed an Anders brief on the resentencing. Ross filed his own brief, claiming that the successor judge had not sufficiently familiarized himself with the case prior to the resentencing. This court affirmed.

In this petition, Ross claims appellate counsel was ineffective for failing to preserve his contention that the successor judge should have reviewed the transcript of the original sentencing proceeding before imposing sentence. There is no showing that this transcript was available to the successor judge. Nevertheless, just as reviewing the complete transcript of a trial is not mandatory, see Watson v. State, 820 So.2d 1057 (Fla. 4th DCA 2002), so too we believe that review of the prior sentencing hearing is not mandatory. What is essential is for the successor judge to be sufficiently familiar with the case so that the imposition of a sentence is his or her act of independent judgment, not mere reliance on the decision of the original judge. See, e.g., Persaud v. State, 821 So.2d 411 (Fla. 2d DCA 2002). Ross’ insistence that the successor judge look to the intent of the original sentencing judge in imposing a sentence is the exact opposite of what is required by rule 3.700(c)(1).

While the successor judge did impose the same sentence that the prior judge imposed, he expressed an intent to follow the freely negotiated plea agreement, not merely impose the will of the original sentencing judge. He imposed the sentence that Ross had agreed to in the plea agreement, which included the state’s agreement to have all sentences run concurrently, rather than consecutively. This reduced his sentence from a possible term of forty-five years to a term of fifteen years.

On this record, petitioner’s claim of ineffective appellate counsel fails. We therefore deny the petition.

KLEIN and GROSS, JJ., concur.

      . See, e.g., Snyder v. State, 870 So.2d 140 (Fla. 2d DCA 2004) (defendant preserved objection to successor judge through rule 3.800(b) motion).


author: WALLACE, Judge.

text:
    SOUTHERN AUTO & TRUCK BROKERS, INC., Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION and International Resolution Services, Inc., Appellees.
    No. 2D06-2596.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
    Daniel K. Schaffner, Clearwater, for Appellant.
    Hinda Klein and Marie P. Montefusco of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee General Motors Acceptance Corporation.
    No appearance for Appellee International Resolution Services, Inc.
   WALLACE, Judge.

Southern Auto & Truck Brokers, Inc., a licensed Florida motor vehicle dealer, appeals a final judgment in favor of General Motors Acceptance Corporation (GMAC). The trial court ruled that GMAC was the owner of a 2003 Hummer H2, a motor vehicle to which both parties claimed superior title. The trial court also awarded GMAC damages under section 78.20, Florida Statutes (2003), for the depreciation in the Hummer’s value while the litigation was pending. We affirm, without comment, the trial court’s ruling on ownership. However, because there was no “taking” of the vehicle within the meaning of the statute, we reverse the damages award.

The Proceedings in the Trial Court

Southern Auto asserted multiple claims against GMAC in the trial court, including a claim for the replevin of the Hummer. At trial, GMAC claimed that it was obligated to hold the vehicle “at the Florida Auto Auction ... since GMAC was sued [by Southern Auto] in 2004.” Relying on section 78.20, GMAC argued that it was entitled to damages for the depreciation of the Hummer measured by the decrease in the National Automobile Dealers Association (NADA) wholesale value from the day that GMAC took possession of the vehicle from Southern Auto through the date of the trial. The trial court agreed and awarded GMAC $13,275 in depreciation damages. The trial court also ruled that GMAC was entitled to recover its attorney’s fees and costs under section 78.20. The final judgment included a reservation of jurisdiction to determine those amounts.

Section 78.20

The trial court relied exclusively on section 78.20 as the basis for the damages award. This section, which appears in the chapter of the Florida Statutes concerning replevin, provides in pertinent part:

Judgment for defendant when goods retained by, or redelivered to, defendant. — When property has been retained by, or redelivered to, defendant on his or her forthcoming bond or upon the dissolution of a prejudgment writ and defendant prevails, he or she shall have judgment against plaintiff for his or her damages for the taking, if any, of the property, attorney fees, and costs.

(Emphasis added.) Under section 78.20, when property has been redelivered to the defendant “upon the dissolution of a prejudgment writ” or upon the defendant’s forthcoming bond and the defendant prevails in the replevin action, the defendant is entitled to judgment against the plaintiff for any damages resulting from the initial taking of the property, attorney’s fees, and costs. See Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88, 89-90 (Fla. 1st DCA 1981); see also Butler v. Mirabelli, 179 So.2d 868, 871 (Fla. 2d DCA 1965) (stating that section 78.20 sets out what the judgment is to cover in a case when the defendant who prevails in a replevin action is in possession of the property by virtue of his forthcoming bond).

Analysis

After a thorough review of the record, we conclude that section 78.20 is inapplicable under the facts of this case. To be sure, GMAC prevailed on Southern Auto’s claim for replevin. Nevertheless, the Hummer was never retained by GMAC or redelivered to GMAC “on [its] forthcoming bond or upon the dissolution of a prejudgment writ” as contemplated under the statute. GMAC took possession before the litigation began, and GMAC had exclusive use, possession, and control of the Hummer through the date of the trial. Contrary to GMAC’s implied claim about its purported obligation to hold the Hummer at the Florida Auto Auction, there was no court order in effect that required GMAC to hold the vehicle at any particular location until the conclusion of the litigation. Cf. McMurrain v. Fason, 584 So.2d 1027, 1033 (Fla. 1st DCA 1991) (“Ordinarily, a party in possession of property under a prejudgment writ of replevin is obligated to hold it in safekeeping pending the completion of the litigation to final judgment.”). If GMAC kept the vehicle at the auction site until the litigation was concluded, that was its choice. In short, there was no “taking” of the Hummer by Southern Auto within the meaning of section 78.20. Therefore, Southern Auto had no liability to GMAC for any damages compensable under the statute.

For these reasons, we affirm the final judgment to the extent that it determines the issue of ownership in favor of GMAC. We reverse the award of damages against Southern Auto.

Affirmed in part; reversed in part.

ALTENBERND and SALCINES, JJ., Concur.

      . Acting through an agent, GMAC took possession of the Hummer at the residence of Southern Auto’s representative on March 10, 2004. The trial was held on April 17, 2006.

      . On appeal, Southern Auto challenges the trial court's award of attorney's fees and costs to GMAC under the statute. However, these issues are not properly before us. The trial court only determined entitlement to fees and costs under the statute and did not establish amounts.


text:
    Zsolt FODOR, Appellant, v. Robert W. GEISZLER and Joan E. Geiszler; and Zsuzsanna Fodor, Appellees.
    No. 2D05-3861.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
    Daniel B. Schuh, St. Petersburg, for Appellant.
    John E. Conley, Clearwater, for Appel-lees Geiszler.
    No appearance for Appellee Zsuzsanna Fodor.
   WALLACE, Judge.

Zsolt Fodor, a judgment debtor, appeals the trial court’s final order that directed him — in his capacity as “surety” on a cash supersedeas bond — to pay certain post-judgment liabilities that he owed to Robert W. Geiszler and Joan E. Geiszler, the judgment creditors. We reverse the order for three reasons. First, because the su-persedeas bond was a cash bond, Zsolt was never liable on it as a surety. Second, to the extent that Zsolt was liable on the supersedeas bond, his liability ended when the judgment that the bond secured was paid in full. Third, the sums that the trial court ordered Zsolt — in his capacity as “surety” — to pay to the Geiszlers were not included within the scope of the supersede-as bond.

I. THE FACTUAL BACKGROUND

A. The Prior Appeal

This is the second appearance of these parties before this court. We previously affirmed a money judgment in favor of the Geiszlers and against Zsolt and Zsuzsanna Fodor. See Fodor v. Geiszler, 888 So.2d 30 (Fla. 2d DCA 2004) (table decision). The amount of the judgment was $44,480.54. This amount was composed of $7546.65 in damages, $29,582.50 in attorney’s fees, prejudgment interest of $1740.84, and $5610.55 in costs.

B. The Supersedeas Bond

In conjunction with their appeal from the judgment, the Fodors posted a cash supersedeas bond with the clerk of the trial court. The amount of the bond was $34,179.56. This amount was less than the amount required by Florida Rule of Appellate Procedure 9.310(b)(1). However, the parties agreed to the lesser amount because the Geiszlers’ attorney held another $14,000 as security for the payment of the judgment. The condition of the bond provided “that if [the Fodors] shall pay or comply with the Orders on Appeal, in full, including costs, interest and attorney’s fees awarded therein should the pending appeal be dismissed or the Orders on appeal be affirmed, then this bond shall be void; otherwise, to remain in full force and effect.” Based on the parties’ stipulation, the trial court entered an order approving the bond.

A review of the bond discloses that the word “surety” does not appear anywhere in it. In addition, neither Zsolt nor Zsuz-sanna signed the bond. Instead, their attorney signed the document on their behalf as “Attorney for Defendants.”

C.The Proceedings in the Trial Court After the First Appeal

After the issuance of this court’s mandate in the first appeal, the Geiszlers filed a motion in the trial court for the entry of an order directing the clerk of the court to disburse sufficient funds to pay the judgment in full. In December 2004, the trial court entered an order that directed the clerk to disburse the sum of $32,196.72 to the Geiszlers. This sum — less the $14,000 held by the Geiszlers’ attorney — represented the balance then due on the judgment, including accrued interest. The trial court also directed the Geiszlers to file a satisfaction of the judgment that had been appealed upon receipt of payment from the clerk. Finally, the trial court ordered the clerk to refund to the Fodors the balance of the cash bond in the amount of $1982.24.

In addition to affirming the trial court’s judgment on the first appeal, this court awarded prevailing party attorney’s fees to the Geiszlers for the services of their attorney on the appeal. After the issuance of our mandate, the trial court set the amount of the Geiszlers’ reasonable appellate attorney’s fees at $8000. In addition, the trial court awarded the Geiszlers an additional $10,000 for collection efforts, plus $875 for expert witness fees. In January 2005, the trial court entered a judgment in favor of the Geiszlers and against the Fodors for $18,875, representing the total of these three amounts. Approximately six weeks later, the trial court entered another judgment taxing “Supplemental Costs” in the amount of $1445.82 in favor of the Geiszlers and against the Fo-dors. The Fodors have not sought review of either of the two judgments that were entered after the conclusion of the first appeal.

When the Fodors failed to pay these two judgments promptly, the Geiszlers moved for an order compelling the Fodors “to pay in full all attorney’s fees, costs and interest awarded pursuant to the Final Judgement [sic] under the inherent conditions of the cash bond that [the Fodors] posted plus any additional fees and costs incurred by [the Geiszlers] resulting from their continued efforts to collect this debt.” In June 2005, the trial court conducted a hearing on this motion. Zsolt attended the hearing. However, Zsuzsanna — who was apparently residing in Hungary at the time of the hearing — was not present. On June 16, 2005, the trial court entered an order finding:

[T]hat the Surety, Zsolt Fodor, is obligated under the Bond to pay the Judgment in Full, including costs, interest, fees and damages for delay to bring finality to this litigation, and that this Court has the power to enforce this Bond if necessary against the Surety by means [of] the holding[] of a contempt proceeding.

Based on this finding, the trial court ordered Zsolt, in his capacity as “Surety,” “to pay the Judgment in Full, including all presently adjudicated costs, interest and attorney’s fees in the amount of $20,330.82 [sic] by check made payable to [the Geisz-lers’] counsel within fifteen (15) days of the date of this Order.” The trial court also ordered Zsolt, in his capacity as “Surety,” “to deposit into the [Geiszlers’] Counsel’s Trust Account, within fifteen (15) days of the date of this Order, an additional $3,992.54 which is [the Geiszlers’] estimate to resolve this matter in full, including fees, costs, and interest.” Thus the additional amounts that the trial court ordered Zsolt to pay the Geiszlers in the June 16 order totaled $24,323.36. Finally, the trial court ordered:

[T]hat [the Geiszlers’] Counsel and the Surety, Mr. Fodor’s, Counsel shall attempt to stipulate to the remaining attorney’s fees, costs, and interest, once the above stated $24,323.36 has, been deposited as herein stated, and set a hearing to resolve the remaining unliqui-dated fees, costs, interest and any additional damages for delay in this matter if a stipulation is unattainable, for which amounts, including the costs of any further hearings on this matter, Zsolt Fo-dor shall remain responsible for under the terms and conditions of this superse-deas bond.

After the trial court denied his motion for rehearing, Zsolt filed this appeal from the June 16 order.

II. DISCUSSION

A party seeking review of a money judgment may obtain a stay pending review in accordance with Florida Rule of Appellate Procedure 9.310(b)(1):

If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

The purpose of conditioning a stay pending review on posting a bond is to ensure the payment to the judgment creditor of the full amount of the order on appeal, including interest, in the event the appeal is unsuccessful. See Wilson v. Woodward, 602 So.2d 545, 546 (Fla. 2d DCA 1991). For purposes of the rule, a “good and sufficient bond” is defined as “a bond with a principal and surety company authorized to do business in the State of Florida, or cash deposited in the circuit court clerk’s office.” Fla. R.App. P. 9.310(c)(1) (emphasis added). Thus there is no surety on a cash bond. A surety is “[a] person who is primarily liable for the payment of another’s debt or the performance of another’s obligation.” Black’s Law Dictionary 1482 (8th ed. 2004). The cash deposited in the clerk’s office eliminates the need for a surety on the bond as security for the performance of the judgment debtor’s obligation. Cf. Superior Garlic Int’l, Inc. v. E & A Produce Corp., 934 So.2d 484 (Fla. 3d DCA 2004) (describing a cash supersedeas bond and outlining the appropriate remedy for its enforcement).

The Fodors’ cash supersedeas bond for the first appeal was approved by the trial court and filed in accordance with the applicable rule. The trial court’s order erroneously compelled Zsolt to take action in his purported capacity as surety on the cash bond. Because the bond was a cash bond, Zsolt never had any liability on it as a surety. Furthermore, any liability that Zsolt may have had on the supersedeas bond ended when the monies on deposit with the clerk were disbursed to the Geisz-lers. At that point, the judgment was paid in full and the bond’s condition was satisfied. Finally, the trial court’s order expanded the scope of the bond’s coverage to require payment of additional amounts that were not included in the final judgment that was the subject of the first appeal. Here, the condition of the super-sedeas bond limited its scope to the payment of “the Orders on Appeal, in full, including costs, interest and attorney’s fees awarded therein.” (Emphasis added.) In the order under review, the trial court erroneously directed Zsolt — as a “Surety” — to pay a variety of items that were not included within the scope of the bond. See City of Coral Gables v. Geary, 398 So.2d 479, 480-81 (Fla. 3d DCA 1981).

For these reasons, we reverse the order on appeal.

ALTENBERND and SALCINES, JJ., Concur.

      . The attorney who signed the bond for the Fodors does not represent them in this appeal.

      . The trial court's disbursement order identified $1982.84 in "unearned interest” due to the Fodors but ordered a refund payment of only $1982.24. We assume that the sixty cents difference resulted from a scrivener's error.

      . The $20,330.82 figure mentioned in the order is $10 more than the sum of the two amounts that the trial court had previously awarded to the Geiszlers as attorney’s fees and costs.


author: ALTENBERND, Judge.

text:
    Bernard Danelle ACKERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3789.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
    Bernard Danelle Ackerman, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Bernard Danelle Ackerman appeals an order summarily denying his motion for postconviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.858 and an order that prohibits him from filing future pro se posteonvietion challenges to his judgment and sentence. Our limited record suggests that it is highly unlikely that any DNA evidence exists in this case, but the record does not conclusively refute Mr. Ackerman’s sworn claim in his amended motion for DNA testing and supporting memorandum of law that such evidence does exist. We therefore reverse the order summarily denying the motion for DNA testing and remand for further proceedings. See Fla. R.App. P. 9.141(b)(2)(D).

To permit Mr. Ackerman the ability to participate in these further proceedings, we also reverse the order prohibiting Mr. Ackerman from filing additional pro se challenges to his judgment and sentence. However, pending the outcome of the rule 3.853 motion, the circuit court is not required to accept new postconviction motions filed pursuant to Florida Rules of Criminal Procedure 3.850 or 3.800 or petitions for habeas corpus challenging the conviction. If the circuit court ultimately concludes that Mr. Ackerman’s sworn allegations in the amended motion for DNA testing are incorrect, it may reissue the order prohibiting further filings.

Mr. Ackerman is serving a life sentence for capital sexual battery that was imposed in 1997 for events occurring in 1996. We affirmed his judgment and sentence on direct appeal in 1999. Ackerman v. State, 736 So.2d 1186 (Fla. 2d DCA 1999). Since then, he has filed numerous postconviction motions and petitions in the circuit court challenging this judgment and sentence, all of which have been denied. In published and unpublished table decisions, we have denied Mr. Ackerman relief in several appellate proceedings arising from his post-conviction pleadings.

Mr. Ackerman has now filed a motion for postconviction DNA testing. In the initial version of this motion, he alleged that a specific physician had collected DNA evidence relevant to his case and that the DNA evidence, if tested, would exonerate him. Mr. Ackerman attached to the motion the trial testimony of the physician. That testimony, however, refuted Mr. Ackerman’s claim; it did not support it. The physician specifically denied conducting an “intrusive” or “internal” examination of the victim. The physician indicated that if an individual case required such an exam, the exam would be referred to and performed by another named physician. The testimony did not address, however, whether any such referral was made in this case or whether the facts of the case would have militated against such a referral.

The circuit court denied Mr. Ackerman’s initial motion as facially insufficient. Mr. Ackerman then filed an amended motion alleging that a rape kit containing DNA evidence had been created as part of a physical exam of the child and that the rape kit was located either at the Sarasota Police Department or the Florida Department of Law Enforcement. The circuit court considered this motion on the merits but summarily denied it. The court held that the physician’s testimony attached to Mr. Ackerman’s motion, as well as the physician’s similar pretrial deposition testimony provided by the State, conclusively refuted Mr. Ackerman’s claim that DNA evidence existed.

We agree that the physician’s testimony conclusively refutes Mr. Ackerman’s initial allegation that this physician collected DNA evidence suitable for testing. It does not, however, conclusively refute Mr. Ackerman’s broader claim in the amended motion that such evidence otherwise exists. In addition, Mr. Ackerman has established that identity was a disputed issue at trial. See Ortiz v. State, 884 So.2d 70, 72 (Fla. 2d DCA 2004). We must therefore reverse the order denying this motion and remand for further proceedings. On remand, if there are other portions of the record that conclusively refute this claim, the circuit court may once again deny it and attach those portions of the record to the order. If the claim cannot be conclusively refuted by the record, a limited evidentiary hearing on the existence of such DNA evidence should be held.

When the circuit court denied Mr. Ack-erman’s amended motion for DNA testing, it also ordered Mr. Ackerman to show cause why he should not be prohibited from filing future pro se challenges to his conviction in this case. The order detailed the numerous unsuccessful pro se pleadings filed by Mr. Ackerman. Some of these motions had simply realleged issues that had already been decided adverse to Mr. Ackerman. Mr. Ackerman responded to the order to show cause but provided no reasonable explanation for his repeated filings of frivolous motions. The circuit court found Mr. Ackerman’s response unavailing and entered an order prohibiting him from filing further pro se posteonviction challenges to this conviction and sentence.

If we could conclude based upon the record before us that Mr. Ackerman was not entitled to any relief in his claim for DNA testing, we would not hesitate to affirm the circuit court’s order prohibiting Mr. Ackerman from filing future pro se challenges to this conviction. See State v. Spencer, 751 So.2d 47 (Fla.1999). Because additional proceedings are required on the motion for DNA testing, we also reverse the sanction order but only to the extent required to allow Mr. Ackerman to fully participate in further proceedings related to the DNA motion. On remand, if the circuit court concludes that Mr. Acker-man’s motion for DNA testing is factually incorrect it may reissue the sanction order. If it determines that Mr. Ackerman’s motion is factually correct, it should vacate the sanction order in its entirety.

Reversed and remanded for further proceedings.

FULMER, C.J., and KELLY, J., Concur.

      . Ackerman v. State, 780 So.2d 66 (Fla. 2d DCA 2000) (table decision) (Case No. 2D00-2350) (affirming without opinion the summary denial of Ackerman’s first motion for postconviction relief pursuant to Fla. R.Crim. P. 3.850); Ackerman v. State, Case No. 2D00-4991 (Fla. 2d DCA Feb. 1, 2001) (unpublished order) (denying review of the summary denial of Ackerman’s first petition for writ of habeas corpus); Ackerman v. State, 793 So.2d 940 (Fla. 2d DCA 2001) (table decision) (Case No. 2D01-2878) (denying without opinion Acker-man’s petition for writ of mandamus); Ackerman v. State, 803 So.2d 720 (Fla. 2d DCA 2001) (table decision) (Case No. 2D01-3746) (affirming without opinion the summary denial of Ackerman’s first motion to correct illegal sentence); Ackerman v. Moore, 803 So.2d 720 (Fla. 2d DCA 2001) (table decision) (Case No. 2D01-4054) (denying review of a summary denial of Ackerman’s second petition for writ of habeas corpus); Ackerman v. Moore, 803 So.2d 720 (Fla. 2d DCA 2001) (table decision) (Case No. 2D01-4480) (denying review of a (summary denial of Ackerman’s third petition for writ of habeas corpus); Ackerman v. State, 875 So.2d 598 (Fla. 2d DCA 2004) (table decision) (Case No. 2D04-379) (affirming without opinion the summary denial of Acker-man's second motion to correct illegal sentence); Ackerman v. State, 906 So.2d 1066 (Fla. 2d DCA 2005) (table decision) (Case No. 2D05-1894) (denying petition for writ of cer-tiorari without opinion); Ackerman v. State, 941 So.2d 372 (Fla. 2d DCA 2006) (table decision) (Case No. 2D06-3899) (denying an unspecified original proceeding).


author: LaROSE, Judge.

text:
    Randy J. WHITTINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4760.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
   LaROSE, Judge.

Randy J. Whittington appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We reverse and remand for further proceedings.

In 1985, a jury convicted Mr. Whitting-ton of capital sexual battery. In his motion, Mr. Whittington sought DNA testing of several items allegedly collected by law enforcement officials during the crime investigation. The postconviction court denied the motion, concluding that at the time of Mr. Whittington’s arrest the items were not available and, therefore, were unavailable for testing now.

The postconviction court did not require a response from the State and did not attach to its order any documentation supporting its finding that the items to be tested do not exist. See Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003). Consequently, we reverse and remand for further proceedings consistent with this opinion. See id. at 1290.

Reversed and remanded.

ALTENBERND and SALCINES, JJ., Concur.


author: PER CURIAM.

text:
    Beverly LASSOR, Appellant, v. The AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 2D05-4491.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
    Beverly Lassor, pro se.
    Raymond R. Deckert, Tampa, for Appel-lee.
   PER CURIAM.

Beverly Lassor challenges a final order that dismissed her action against the Agency for Persons with Disabilities. That order approved a hearing officer’s denial of Ms. Lassor’s petition for an administrative hearing. The hearing officer determined that she had no statutory right to a hearing on her claim against the Agency. We affirm.

The Agency provides services to eligible people with developmental disabilities. § 393.063(10), Fla Stat. (2005). In doing so, the Agency is authorized to contract with private businesses that actually provide the needed services. § 393.066. Ms. Lassor has been receiving services through a support coordinator, § 393.063(42), and direct services providers, § 393.063(12). She was dissatisfied with these providers, and asked for an administrative proceeding to address her concerns.

The Agency is required to provide a hearing in certain circumstances, for example, if a person’s application has been rejected or if her assistance payment has been modified or cancelled. See § 409.285, Fla. Stat. (2005); Fla. Admin. Code R. 65-2.042, 65-2.44. That is not the case here. Ms. Lassor’s application was approved and her assistance payments continue. Neither would she be entitled to a hearing under the Administrative Procedure Act, §§ 120.569, .57, because the Agency has not made a determination involving her “substantial interests.” The hearing officer correctly ruled that she was not entitled to a hearing under the statutes and administrative rules, and the Agency correctly dismissed her appeal of that order.

We understand Ms. Lassor’s frustration, but we can grant her no relief in this appeal. We do note, however, that the United States government has funded Centers for Independent Living, see 29 U.S.C. § 796 — 796(f), which might be able to assist Ms. Lassor in resolving her problems with her service providers. One of these centers, Caring & Sharing CIL, Inc., is located in Largo, Florida, with branches in Gulfport and Holiday.

Affirmed.

NORTHCUTT, SALCINES and CANADY, JJ„ Concur.


text:
    Jim A. BASS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-963.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Jim A. Bass, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Jim A. Bass appeals his judgments and sentences for fleeing or attempting to elude at high speed and aggravated assault. We affirm without prejudice to Mr. Bass’s right to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(c) or 3.850.

Mr. Bass was charged with driving while license suspended or revoked, fleeing or attempting to elude at high speed, and two counts of aggravated assault with a deadly weapon on a law enforcement officer. He negotiated a plea agreement by which all charges were dismissed except for fleeing at high speed and one count of the lesser-included offense of aggravated assault. The written plea agreement provided for concurrent sentences of five years’ incarceration. A condition of the plea was that Mr. Bass would subsequently appear as scheduled for sentencing. After the plea was accepted, Mr. Bass failed to appear for sentencing. He was arrested three days later at or near his family’s home in Avon Park. At the sentencing hearing, without the benefit of the negotiated sentence, he received a sentence of fifteen years’ incarceration for the offense of fleeing at high speed and five years’ consecutive incarceration for the aggravated assault. See Quarterman v. State, 527 So.2d 1380 (Fla.1988) (holding that failure to appear for sentencing when it is a condition of the plea voids sentencing provisions of the negotiated plea).

The written judgment contains a scrivener’s error, designating the fleeing at high speed as a third-degree felony rather than a second-degree felony and omitting the high-speed classification. On remand, this error should be corrected. Mr. Bass is not entitled to any relief on direct appeal concerning his sentences. If he wishes to seek any relief from his lengthy sentence, he must file either a timely motion for reduction of sentence pursuant to rule 3.800(c) or a motion to withdraw his plea pursuant to rule 3.850.

Affirmed with instructions.

NORTHCUTT and LaROSE, JJ., Concur.

      . § 322.34(3)(a), Fla. Stat. (2004).

      . § 316.1935(3)(a), Fla. Stat. (2004).

      .§§ 784.021(l)(a), ,07(2)(c), Fla. Stat. (2004).


text:
    STATE of Florida, Appellant, v. James Laird WOLDRIDGE, Appellee.
    No. 2D06-2466.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    Joseph A. Eustace, Jr., of Anthony J. LaSpada, P.A., Tampa, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order granting James Woldridge’s motion to suppress evidence seized pursuant to a search warrant for his residence. The trial court found that the warrant application contained insufficient information about the source of a tip to establish probable cause. Because the trial court focused its attention on an entity that was not the actual source of the tip, the trial court erred in finding that the magistrate abused his discretion in issuing the warrant. Accordingly, we reverse.

Woldridge was charged by information with ten counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2004). He filed a motion to suppress the evidence seized from his residence on the grounds that the information contained in the affidavit for the search warrant was legally insufficient to support a finding of probable cause.

The affidavit supporting the search warrant application related that Officer Margaret Grow of the Hillsborough County Sheriffs Office had received four reports from the National Center for Missing and Exploited Children (NCMEC) which related that America Online (AOL) had reported that an AOL user with a specific screen name had attempted to e-mail files containing child pornography. After receiving the reports and reviewing the images, Grow subpoenaed AOL for the subscriber information for the specified screen name. In response to the subpoena, AOL identified Woldridge as the account holder of the screen name. Grow’s affidavit then detailed the additional investigation she conducted to confirm where Woldridge was living and receiving internet service. It also detailed Grow’s background in the investigation of on-line child pornography cases and provided background information concerning the characteristics of individuals who use the internet to view and exchange “cyberporn.”

The warrant application sought a warrant to search Woldridge’s home for “computer equipment,” which it defined to include various computer and electronic “storage devices.” After reviewing the warrant application, including the affidavit prepared by Grow, the magistrate issued a search warrant for Woldridge’s home. Pursuant to the search warrant, officers seized Woldridge’s computer and found various pornographic images of children on the hard drive.

In Woldridge’s motion to suppress the evidence seized pursuant to the search warrant, he argued that the warrant application was insufficient to establish probable cause because the affidavit in support of the application contained no information concerning the veracity or basis of knowledge of NCMEC, which he identified as the alleged tipster. The State, on the other hand, argued that AOL was the only tipster involved and that its tip was presumptively reliable because AOL was a “citizen-informant.” The trial court granted the motion to suppress, finding the application legally insufficient to establish probable cause because the affidavit did not contain sufficient information to establish the reliability of NCMEC. This appeal followed.

For a warrant to issue, the issuing magistrate must find probable cause to believe that the contraband is presently in the residence. State v. Bernie, 472 So.2d 1243, 1246 (Fla. 2d DCA 1985).
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Alabama v. White, 496 U.S. 325, 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

State v. Gonzalez, 884 So.2d 330, 333 (Fla. 2d DCA 2004); see also Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Because the determination of probable cause must be made from the four corners of the affidavit, the affidavit itself must contain either information concerning the informant’s veracity or sufficient independent corroborating evidence. Pagan, 830 So.2d at 806-07.

When a trial court is called upon to review a magistrate’s decision to issue a search warrant, the trial court does not conduct a de novo determination of whether there was probable cause to issue the warrant. Bonilla v. State, 579 So.2d 802, 805 (Fla. 5th DCA 1991). Instead, the trial court determines only whether substantial evidence supported the magistrate’s determination that probable cause existed. Id.; see also Gonzalez, 884 So.2d at 333; Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004). Thus, the trial court should not disturb an issuing magistrate’s determination absent a clear demonstration that the magistrate abused his discretion in relying on the information in the affidavit supporting the warrant application to find probable cause. State v. Price, 564 So.2d 1239, 1241 (Fla. 5th DCA 1990).

In this appeal, the State argues that the trial court erred in focusing its attention on the reliability of NCMEC. As it did in the trial court, the State argues that AOL was the only tipster involved and that its tip was presumptively reliable because AOL was a “citizen informant.” We agree that AOL was the only tipster. Additionally, although we hesitate to hold that, as a matter of law, a corporation can always be a citizen informant, we hold that AOL’s compliance with a federal law mandating that it report Woldridge’s activities to NCMEC provides a presumption of reliability akin to that afforded a citizen informant. Accordingly, we hold that the affidavit at issue provided probable cause to issue the search warrant.

First, it is clear from the search warrant affidavit that the tip came from AOL, not NCMEC. The pertinent part of the affidavit states:

Affiant received four reports from the National Center for Missing and Exploited Children. The four reports from the National Center for Missing and Exploited Children listed the Internet Service Provider America Online (AOL) reporting an AOL user twithtt@aol.com who attempted to email files depicting child pornography.

(Emphasis added.) From this language, it is clear that the relevant information originated with AOL, not NCMEC. Thus, AOL was the only “tipster” involved, and the critical question for the issuing magistrate was the reliability of AOL, not NCMEC.

Second, the reliability of the tip from AOL can be presumed because federal law compelled AOL’s report to NCMEC. Although not mentioned by either party in their briefs, AOL was required to report the attempted transmission of these child pornography images to NCMEC for forwarding to law enforcement. Under 42 U.S.C. § 13032(b)(1) (2004), any internet service provider that obtains facts from which a violation of federal child pornography laws is apparent must report the facts and circumstances to the Cyber Tip Line at NCMEC. NCMEC then forwards the reported information to both state and federal law enforcement officials. 42 U.S.C. § 13032(b)(1), (b)(3). An internet service provider that fails to report such facts is subject to significant fines. 42 U.S.C. § 13032(b)(4).

We find that this statutory reporting requirement supports the reliability of AOL’s tip. Contrary to Woldridge’s position at oral argument, the possibility of the imposition of fines for failing to report the transmission of child pornography does not make AOL’s tip less reliable. Nothing about the possible imposition of fines would encourage AOL to make false reports to NCMEC. Further, while it is true that the search warrant affidavit does not reference this statutory mandate, the magistrate and the trial court, like all citizens, are charged with knowing the applicable law.

In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC. “A citizen-informant is one who is ‘motivated not by pecuniary gain, but by the desire to further justice.’ ” State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (quoting State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So.2d 600, 602 n. 1 (Fla. 4th DCA 1982), and Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981))). A citizen informant is one who “by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty.” Evans, 692 So.2d at 219 (quoting Wayne R. LaFave, Search and Seizure § 3.3 (3d ed.1996)). As a general rule, the reliability of a tip from a citizen informant is presumed, and corroboration of the tip is not generally required. Maynard, 783 So.2d at 228; Gonzalez, 884 So.2d at 334.

Here, AOL discovered pornographic images of children attached to an e-mail that an AOL subscriber with a particular screen name attempted to transmit through the AOL server. At that point, AOL was in possession of the images, which it forwarded along with the subscriber’s screen name to law enforcement through NCMEC. Thus, the information did not come to law enforcement from an anonymous source; it came from a recognized, well-established internet service provider. Moreover, AOL essentially witnessed the crime when it received the images from the subscriber. Under these circumstances, AOL was in substantially the same position as a citizen informant, whose reliability can be presumed for purposes of the magistrate’s probable cause determination. See State v. Sisson, 883 A.2d 868, 880 (Del.Super.Ct.2005), aff'd, 903 A.2d 288 (Del.2006).

In an effort to support the trial court’s ruling, Woldridge argues that the State was obligated to include in the search warrant the name of the actual AOL employee who identified the images and information concerning that employee’s reliability. However, Woldridge points to no case supporting his position. Instead, the only reported authority that we have found concerning the issue specifically rejects Woldridge’s argument.

In United States v. Kling, 2006 WL 1980179 (N.D.Iowa July 12, 2006), the defendant, who was charged with possession of child pornography, moved to suppress the evidence seized pursuant to a search warrant, arguing that the warrant application was insufficient. The warrant affidavit in that case stated that the internet service provider Yahoo had reported to NCMEC that an individual using a specific email address had “uploaded or transmitted” images of child pornography. Id. at *5. NCMEC forwarded the information to police, who served subpoenas on Yahoo to obtain information concerning the specified email address. Id. The affidavit then explained how the officers had located and verified the residence at which Kling was living and receiving internet service. Id.

In his motion to suppress, Kling argued that the warrant failed to establish the reliability of the information provided by Yahoo because it did not specify the identity of the particular Yahoo employee who provided the information nor did it give any information regarding that person’s reliability. In rejecting this argument, the court first noted that Kling cited to no case, nor could it find one, that would support “the proposition that information received from an Internet Service Provider may be suspect unless the veracity of the specific individual who provides the information is supported in the warrant application.” Id. at *6. The court then noted:

Courts routinely consider information provided by ISPs and e-mail providers just as they consider information provided by financial institutions, credit card issuers, and utility companies.... Except in unusual circumstances, courts do not require information regarding the credibility of a records custodian or other company employee who verifies business records. What the agents received from Yahoo was just that — business records of who had accessed a Yahoo group and what those individuals had uploaded or downloaded from the group’s site.

Id.

Here, Woldridge, like Kling, has failed to cite any case, and this court has been unable to find one, that requires a search warrant affidavit to contain information regarding the reliability of the custodian of business records when those records are used to supply probable cause for a search warrant. In this case, AOL, as required by federal law, provided its business records concerning the content of specific emails from a specific subscriber to NCMEC for it to forward to law enforcement. Woldridge has offered no basis for the trial court or this court to conclude that the business records provided by AOL were unreliable. Under these circumstances, there was no basis for the trial court to find that the magistrate abused his discretion in issuing the search warrant based on the information provided by AOL.

Woldridge also argues that the trial court’s factual findings concerning the omission of the information concerning NCMEC from the affidavit are entitled to deference. Woldridge is correct on this issue, and this court does not dispute those factual findings. However, the trial court’s conclusion that those omissions resulted in the search warrant application being insufficient to establish probable cause is subject to de novo review. Pagan, 830 So.2d at 806; Gonzalez, 884 So.2d at 333. Here, because the actual tip came from AOL, the omissions identified by the trial court relating to NCMEC were immaterial to the determination of probable cause. Accordingly, the trial court’s legal conclusion that the affidavit did not establish probable cause was incorrect, and thus it erred in concluding that the magistrate abused his discretion in issuing the warrant.

Based on the foregoing, we reverse the order suppressing the evidence and remand for further proceedings. However, because of the dearth of case law on this issue and the increasing frequency of prosecutions arising out of internet sex crimes, we certify the following question as one of great public importance:

WHETHER INFORMATION PROVIDED TO LAW ENFORCEMENT BY AN INTERNET SERVICE PROVIDER PURSUANT TO THE PROVIDER’S STATUTORY OBLIGATION UNDER 42 U.S.C. § 13032(b) IS ACCORDED A PRESUMPTION OF RELIABILITY AKIN TO THAT OF A CITIZEN INFORMANT SUCH THAT NO INFORMATION CONCERNING THE RELIABILITY OF THE “TIPSTER” IS NECESSARY TO PROVIDE PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    A.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5503.
    District Court of Appeal of Florida, Second District.
    May 9, 2007.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

A.M., a juvenile, appeals the commitment orders that adjudicated him delinquent for committing felony battery (count I) and criminal mischief (count II) and that committed him to a moderate-risk residential program. A.M. raises two issues concerning his adjudication of delinquency on count I. He also complains that the juvenile court made several errors in its entry of the commitment orders. The State concedes that the commitment orders contain errors. We affirm without comment the juvenile court’s adjudications of delinquency on both counts. We also affirm the commitment orders. However, because the orders require correction, we remand to the juvenile court to enter amended orders and for further proceedings as explained below.

The Orders

The juvenile court entered a separate commitment order for each count. Each order recited that A.M. had pleaded guilty to the respective count and committed him to a moderate-risk residential program for an indeterminate period, not to extend beyond his twenty-first birthday “or the maximum allowed by law.” Both orders also required A.M. to cooperate with DNA testing and to pay $14,036.34 in restitution to the victim of the battery. On appeal, A.M. complains (1) that the commitment order for count I incorrectly reflects that he pleaded guilty to the felony battery; (2) that the commitment order for count II improperly ordered DNA testing and restitution, which do not apply to the adjudication for criminal mischief; and (3) that the length of the commitment is illegal for both counts and does not credit him for time served. A.M. filed a motion to correct the commitment orders in accordance with Florida Rule of Juvenile Procedure 8.135(b)(2). The juvenile court did not file an order ruling on AM.’s motion within thirty days. Therefore, the motion is deemed to have been denied. See Fla. R. Juv. P. 8.135(b)(1)(B).

Guilty Plea

A.M.’s first objection to his commitment orders is that the order for count I indicated that he had pleaded guilty to that count. A.M. pleaded guilty to count II, but the juvenile court found him to be delinquent on count I after an adjudicatory hearing. A.M. complains that this scrivener’s error could prejudice his right to appeal his adjudication on count I because an adjudication entered as the result of a plea can be appealed only under specified conditions. See State v. T.G., 800 So.2d 204, 207 (Fla.2001) (stating that Florida Rule of Appellate Procedure 9.140 “is applicable to juvenile delinquency appeals by operation of Florida Rule of Appellate Procedure 9.145(a).”). Although we have disposed of AM.’s appeal from his adjudication on count I on the merits, we agree that upon his motion, the juvenile court should have corrected this error. The State concedes this error in the commitment order for count I and requests that we remand the order to the juvenile court for correction. Accordingly, on remand, the juvenile court shall enter an amended order reflecting that A.M. was adjudicated delinquent on count I after a hearing.

Errors Specific to Count II

A.M. objects to his commitment order for count II, criminal mischief, because it requires him to cooperate with DNA testing and to pay $14,036.34 in restitution to the victim of the battery. The State charged A.M. with criminal mischief for “kicking out the window” of a police cruiser, alleging that the damage was “$200.00 or less.” At A.M.’s adjudicatory hearing, the juvenile court found that restitution was appropriate for count II, but the State did not produce any evidence of a specific dollar amount for the destruction of the window. The court reserved jurisdiction to enter a restitution order for both counts. Criminal mischief is a second-degree misdemeanor when, as in this case, the amount of damage resulting from the criminal mischief is $200 or less. § 806.13(l)(b)(l), Fla. Stat. (2004).

Section 943.325, Florida Statutes (2004), requires any person who has been convicted of certain offenses to submit to DNA testing. See § 943.325(l)(b) (enumerating the offenses that trigger the DNA testing requirement). This section applies to juvenile offenders as well as adults. § 943.325(l)(c). However, misdemeanor criminal mischief is not one of the offenses that triggers the DNA testing requirement. § 943.325(l)(b). A.M. argues that because he had no history of an adjudication or a withhold of adjudication for any offense listed in section 943.325, the juvenile court erred in requiring him to submit to DNA testing for count II. The State submits that the court was correct in ordering A.M. to cooperate with DNA testing for count I and suggests that the order for DNA testing on count II was a scrivener’s error.

A.M. also argues that the juvenile court erred in requiring him to pay $14,036.34 in restitution to the victim of the battery in its order on count II. A.M. contends that the restitution to the victim is not related to his criminal mischief offense. Section 775.089, Florida Statutes (2004), requires that a court order a defendant to pay restitution for: “1. Damage or loss caused directly or indirectly by the defendant’s offense; and 2. Damage or loss related to the defendant’s criminal episode.” The State agrees that the battery victim’s loss does “not bear a significant relationship to” A.M.’s criminal mischief offense. See R.A.B. v. State, 932 So.2d 1227, 1229 (Fla. 2d DCA 2006) (reversing an order of restitution to a victim that did “not bear a significant relationship to the offense of obstructing or opposing an officer without violence”). However, the State requests that we remand the order to the juvenile court so that the court may enter a corrected order of restitution for count II that would significantly relate to that charge.

Because A.M. had no prior felony adjudications or adjudications withheld, the juvenile court erred in ordering him to cooperate with DNA testing on count II. We find also that the court erred by including in the commitment order for count II an order for A.M. to pay restitution to the victim of the battery. Therefore, on remand, the juvenile court shall enter an amended commitment order for count II omitting the requirements for DNA testing and for restitution to the victim of the battery. The court shall hold further proceedings to determine the appropriate amount of restitution on count II.

Sentencing Issues

Both orders commit A.M. “to the Department of Juvenile Justice (DJJ) for an indeterminate period, which shall not extend beyond the Child’s 21st birthday or the maximum allowed by law.” Neither order credits A.M. with the time he served in secure detention before his adjudicatory hearing. A.M. argues that this is error and asks that we remand the commitment orders to the juvenile court for correction of these sentencing errors.

Section 985.231(l)(d), Florida Statues (2004), requires that “[a]ny commitment of a delinquent child to the Department of Juvenile Justice” be for an indeterminate time. However, that “time may not exceed the maximum term of imprisonment that an adult may serve for the same offense.” Id. Further, the commitment may not extend beyond the child’s twenty-first birthday. Id. The maximum sentence for third-degree felony battery is five years’ imprisonment. See §§ 784.041(2), 775.082(3)(d), Fla. Stat. (2004). The maximum sentence for a second-degree misdemeanor under the 2004 version of the Florida Statutes is sixty days. § 775.082(4)(b). The juvenile court signed A.M.’s commitment orders on October 6, 2005. Therefore, A.M., who was born in 1990, will have served the maximum sentence for each offense before his twenty-first birthday. To further ensure that his commitment “will not exceed statutory limits,” the juvenile court must credit A.M. with the days that he spent in secure detention before his adjudicatory hearing. See J.I.S. v. State, 930 So.2d 587, 590 (Fla.2006). This is so because A.M.’s commitment, although technically indeterminate, “will necessarily conclude before the juvenile reaches the age at which DJJ’s authority ends.” Id.

The State concedes that the commitment orders could be construed as committing A.M. beyond the maximum terms allowed for his offenses. The State suggests that we remand the orders to the juvenile court for the entry of corrected orders that add the clarifying language “whichever comes first” after the words “or the maximum allowed by law.” This language is suggested by Florida Rule of Juvenile Procedure Form 8.947. However, it is undeniable that the maximum terms for A.M.’s offenses will end before his twenty-first birthday. Therefore, we remand for the juvenile court to clarify the commitment orders. The amended order for count I shall commit A.M. to the Department of Juvenile Justice for an indeterminate term not to exceed five years; the amended order for count II shall commit him for an indeterminate term not to exceed sixty days. On remand, the juvenile court shall also credit A.M. with the time he served in secure detention prior to his adjudicatory hearing.

Affirmed; remanded with directions.

WHATLEY, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Both of A.M.’s offenses were committed on November 22, 2004.

      . Approximately three months after the entry of the commitment orders, the juvenile court entered an order of restitution. In this separate restitution order, the juvenile court found the $14,036.34 amount to be "reasonable restitution for the Child and/or parents to pay through the Court.” The juvenile court ordered further that restitution payments at the rate of $50 per month would begin ninety days after A.M. was released from the program to which he was committed. On appeal, A.M. contends that the separate restitution order improperly requires his parents to make restitution. According to A.M., the juvenile court did not make the necessary inquiries that would authorize it to find that his parents are liable to make restitution as a result of his delinquent acts. We do not address this issue because neither A.M. nor his parents filed a notice of appeal from the separate restitution order. In addition, we note that the juvenile court lacked jurisdiction to enter the separate restitution order because that order was entered after A.M. filed his notice of appeal. See Pearson v. State, 686 So.2d 721, 721-22 (Fla. 2d DCA 1997). However, we do agree with A.M. that the preprint-ed form “Order of Restitution” employed by the juvenile court in this case is subject to conflicting interpretations on the issue of parental liability for restitution. The juvenile court may wish to consider revising this form to avoid the same problem in future orders.

      . The legislature amended section 985.231(d) to increase the length of time a juvenile could be committed for a second-degree misdemeanor to a maximum of six months, effective July 1, 2005. See ch. 05-263, § 6, at 2405, Laws of Fla. Section 985.231(d) has since been renumbered as section 985.455(3). See ch. 06-120, § 53, at 1493-95, Laws of Fla.


author: FARMER, J.

text:
    Philip E. MEHL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1018.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Rehearing Denied June 29, 2007.

      Benjamin S. Waxman of Robbins, Tun-key, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Facing 84 counts of unlawful sale of securities and sales without a license, which could yield a prison term of 400 years, defendant entered into a plea agreement containing the following provision:

“Alleged ETS payphone victims shall not testify at the sentencing hearing. Victims who purchased securities related to the filed charges and ETS payphones may testify only as to the filed charges. The prosecutor may not argue that Mehl’s points on the punishment score sheet would have been higher had the State filed ETS charges.”

None of the charges covered by the plea involved the ETS securities.

At the lengthy sentencing hearing defendant produced several character witnesses, including his accountant/income tax consultant. On cross examination, the state questioned the accountant about her own purchase of ETS securities. The state also cross examined his physician about purchasing ETS securities. When Mehl himself testified, the state cross examined him about sales of ETS. When the state presented witnesses, it examined some of them about ETS sales. The state called several purchasers of securities from Mehl, including four whom it examined about ETS sales. In closing argument about the sentence to be imposed, the state said the following:

“The most egregious, I think, is when he gets the fraud notice. We know that he got it because he sends it up to ETS to the President of ETS. Charles, please look at this. It says, ‘be wary of payphone investments. The telecommunication industry is growing and it’s ringing up profits for scammers who prey on those looking to invest.’
The scoresheet on this and we waived guidelines, but it would go from zero to 400 years. Do you really — . You know, you talk about all the crimes that we didn’t charge him with. Sure we didn’t charge him with racketeering and so forth. There’s no need to. He scores up to 400 years.”

After being sentenced, defendant filed his motion to withdraw his plea. He based the motion on the state’s breach of the plea agreement provision quoted above. The trial court denied any relief, saying:

“Both Mr. Mehl and the State violated the non-testimony agreement. However none of the testimony focuses on the prohibited area. The spirit of the agreement was not violated. Further, Mr. Mehl should not benefit from the State’s minor violations of the plea agreement which he himself violated.”

The denial of all relief brings us this appeal.

The leading case on the enforcement of plea agreements is Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). There, as here, a plea agreement contained provisions relating to sentencing, the New York prosecutor agreeing to make no recommendation as to sentence. At sentencing, the person representing the prosecutor’s office had changed. The new person recommended the maximum sentence. Defense counsel objected and requested an adjournment to address the changed circumstances. Ultimately the trial judge denied the delay, stating that he was not influenced by the recommendation or anything the prosecutor could do and imposed the maximum sentence, citing his criminal record. On review in the United States Supreme Court, the Court held that the breach of a plea agreement by the state is a denial of due process. The Chief Justice explained:

“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” [e.s.]

404 U.S. at 262, 92 S.Ct. 495. Addressing the remedy for a prosecutorial breach of a plea agreement, the Court held:

“the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.” [e.s., f.o.]

404 U.S. at 262-63, 92 S.Ct. 495. The Court also took pains to show that it accepted the trial judge’s assertion that he did not rely on the state’s recommendation. Essentially the Court held that actual harm from the state’s breach of a plea agreement is not the criterion; the mere breach itself is enough to require the San-tobello remedy. Moreover, Santobello makes clear that if specific performance is the remedy, any resentencing “should be by a different judge.” 404 U.S. at 263, 92 S.Ct. 495.

The Florida Supreme Court recognized and enforced Santobello in Tillman v. State, 522 So.2d 14 (Fla.1988). That case also involved a prosecutorial breach of a plea agreement limiting the state’s presentation at sentencing. Finding that the state presented evidence “beyond the scope of this agreement” the court said:

“In Santobello, the Court remanded the case to- state court to determine the appropriate remedy, plea withdrawal or specific performance of the agreement. We are faced with a similar decision. The record discloses that the prosecution introduced evidence beyond what was agreed upon by the parties. This mere breach, no matter how slight, or whether the judge was influenced by it, is grounds for reversal. A defendant agrees to plead guilty based specifically on the agreement he or she has made with the state. Any breach of that agreement by the state renders the plea involuntary, as the plea is based on an agreement that was not fulfilled. ” [e.s.]

522 So.2d at 15-16. Again, the mere appearance of a breach by the state is itself grounds for relief regardless of whether the breach affected the sentence. Finding that defendant had not sought to withdraw his plea, the court remanded for resentencing before a new judge. 522 So.2d at 16; see also Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (Tillman requires the court to assess the remedy due for the breach of the plea agreement, specific performance or withdrawal of plea; where plea was not otherwise shown to be voluntary, withdrawal of plea is proper remedy).

We see no reason to disturb the refusal to vacate the plea in this case. Omitting any suggestion that the plea was otherwise involuntary, defendant argues the state breached its undertaking by presenting evidence and argument plainly barred by the agreement. We conclude that defendant’s consideration for the agreement can be fully satisfied by remanding for resentenc-ing before a different judge. On resen-tencing the new judge shall not be made aware of the sentence imposed by the first judge.

We reject the state’s argument that defendant himself could have breached the agreement and that would justify the state ignoring the sentencing bargain. Using the death penalty sentencing factors as an explanatory analogue only, we read the plea agreement to mean that the state agreed to limit itself as to evidence and argument about specific aggravating factors that if considered might otherwise lead to a lengthier sentence. But there is absolutely nothing in the agreement making plain that defendant agreed to limit himself in any way as to any mitigating evidence or argument. There is a long tradition in criminal sentencing allowing defendants wide latitude in evidence and argument seeking to lessen the sentence. When a plea agreement is open as to the specific sentence, in the absence of very clear language to the contrary, we should be very reluctant in contractual interpretation to infer any limitations on what defendant can present or argue in mitigation.

Without the agreement, the state had the right to present evidence about other crimes besides the ones charged; and nothing in the plea agreement barred the state from offering rebuttal evidence. But without clear language so requiring, it makes no sense to read the agreement to allow the state to present the proscribed evidence as rebuttal to his mitigating evidence. To do so is to make the entire agreement virtually meaningless because such a construction would return the state to its position before the plea agreement.

The agreement was clearly meant to limit the state’s freedom of evidence and argument, not defendant’s. The obvious purpose was to prevent the state entirely from using particular evidence and argument in any context. Defendant’s principal interest in the plea agreement was to give him unfettered room to argue in mitigation.

Reversed and remanded for resentenc-ing before a new judge.

GUNTHER and STONE, JJ., concur.


author: CASANUEVA, Judge.

text:
    Antonio L. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5000.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Antonio Rodriguez asserts that a violation of his constitutional guarantees against double jeopardy occurred when he was convicted of and sentenced for possession of marijuana with intent to sell and possession of the same quantum of marijuana. We agree.

Mr. Rodriguez’s troubles began when an employee of the electric power company informed Collier County Sheriffs deputies that, while investigating an alleged illegal diversion of power at a certain house, he smelled marijuana. The house was placed under surveillance and the deputies observed other indicia of a marijuana “grow house.” Based upon their surveillance, the deputies obtained a search warrant, searched the house, and found marijuana. Subsequently, an information charged Mr. Rodriguez with three third-degree felonies: cultivation of cannabis, possession of cannabis with intent to sell, and possession of over twenty grams of cannabis, all violations of section 893.13, Florida Statutes (2004). After a motion to suppress was denied, Mr. Rodriguez changed his plea to nolo contendere.

Mr. Rodriguez’s scoresheet provided for the lowest permissible sentence of any non-state prison sanction. At the change of plea hearing, defense counsel informed the court that in a plea conference with the State and the judge, Mr. Rodriguez would enter a plea to the three counts and a $5000 fine per count, with the understanding that the sentence would be concurrent terms of two years’ community control followed by three years’ probation on each count. The court then sentenced Mr. Rodriguez as outlined.

By filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), defense counsel brought the double jeopardy violation to the trial court’s attention. The trial court found that the two convictions, possession with intent and possession, do, in fact, violate Mr. Rodriguez’s double jeopardy protection pursuant to Keene v. State, 600 So.2d 513 (Fla. 2d DCA 1992) (holding that possession is a lesser-included offense of possession with intent to sell the same quantum of contraband). However, citing Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006), the trial court dismissed the motion finding the error was not cognizable in a rule 3.800(b)(2) motion because this rule is the vehicle to correct sentencing errors, and Mr. Rodriguez was attacking his convictions rather than his sentences.

Although the trial court properly denied him relief under rule 3.800(b), the clear violation of his constitutional guarantees against double jeopardy entitles Mr. Rodriguez to have his conviction and sentence for possession vacated.

The general rule is that a plea of guilty and subsequent adjudication of guilt precludes a later double jeopardy attack on the conviction and sentence. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

Novaton v. State, 634 So.2d 607, 609 (Fla.1994); see also Melvin v. State, 645 So.2d 448, 449 n. 1 (Fla.1994) (explaining the difference between a “plea agreement” and a “plea bargain”; in a “plea bargain” the defendant negotiates with the State and agrees to plead in exchange for some benefit, such as a reduced sentence).

Our review of the record shows that Mr. Rodriguez has met the three requirements necessary to avail himself of the exception of the rule stated in Novaton, 634 So.2d at 609. There is no indication in this record that he “bargained” with the State because he pleaded as charged and was sentenced to the guidelines sentence; the double jeopardy violation is apparent from the record; and nothing in the record suggests that he waived the double jeopardy violation. Accordingly, we reverse the conviction for possession of marijuana and vacate the sentence for it. In all other respects, the convictions and sentences are affirmed.

Affirmed in part, reversed in part, and remanded with instructions to vacate the judgment and sentence for possession of marijuana.

SILBERMAN and WALLACE, JJ., Concur.

      . U.S. Const, amend. V.; Art. I, § 9, Fla. Const.

      . Mr. Rodriguez signed the Spanish version of the plea form that is titled, "Declaration de culpable o de no disputo a acusaciones delic-tivas.” The "no disputo” portion of the title was circled. More important, however, is the form’s provision about what sentence he might receive: "Le pido al Juez que imponga la sentencia que estime apropiada,” which means, "I ask the judge that he impose the sentence that he thinks appropriate.”


author: WHATLEY, Judge.

text:
    Christopher Emmanuel NASH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-433.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Christopher Emmanuel Nash appeals his judgments and sentences for sale or delivery of a controlled substance and possession of a controlled substance. We affirm his judgments and sentences without comment. However, we reverse the imposition of certain costs.

At sentencing, the trial court orally announced the imposition of a $40 fee for the services of the public defender. However, the sentencing document reflects that Nash was assessed $425 for attorney’s fees and $40 for costs pursuant to section 938.29(l)(a), Florida Statutes (2005).

Section 938.29(5) requires the trial court to give notice and an opportunity for a defendant to object to the amount of an attorney’s fee and cost assessment. Further, pursuant to Florida Rule of Criminal Procedure 3.720(d)(1), a defendant must be advised of his right to a hearing to contest the amount of these costs. Miller v. State, 912 So.2d 1282, 1283 (Fla. 2d DCA 2005). In the present ease, the trial court did not inform Nash of his right to a hearing to contest the amount of the public defender’s fee and the cost assessment, and furthermore, the sentencing document does not conform to the trial court’s oral pronouncement.

Accordingly, we reverse the assessment of $425 for attorney’s fees and $40 for costs. On remand, Nash shall have thirty days from the date of the mandate to file a written objection to the amount assessed. See Miller, 912 So.2d at 1283. If Nash flies such an objection, the trial court should hold a hearing, and if Nash fails to timely file an objection, the trial court may reimpose the fee and cost assessment without a hearing. Id.

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

ALTENBERND and DAVIS, JJ., Concur.

      . Nash preserved this issue by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The circuit court failed to rule on the motion within sixty days as required by rule 3.800(b)(2), and therefore, the motion is deemed denied. See Jones v. State, 898 So.2d 209, 210 (Fla. 2d DCA 2005).


text:
    Len Shannon VERNON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1392.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Len Shannon Vernon appeals an order revoking his probation in four separate cases. After a hearing, the trial court found that Vernon had violated four conditions of his probation. We affirm the revocation order based on Vernon’s violation of conditions five, seven, and twenty-three of his probation, reverse as to the violation of condition thirty-two, and remand for the trial court to strike that violation from the revocation order.

Condition thirty-two of Vernon’s probation required that he obtain drug and alcohol evaluations within thirty days and receive drug and alcohol treatment. It was alleged that Vernon violated this condition when he was unsuccessfully discharged from “DACCO,” a drug treatment program.

On appeal, Vernon argues that he was improperly found in violation of this condition because the probation order did not give him a specific time within which to complete a drug treatment program. The State agrees and acknowledges that the portion of the probation revocation order finding Vernon in violation of condition thirty-two must be stricken. See Anderson v. State, 942 So.2d 1015, 1017-18 (Fla. 2d DCA 2006) (holding that a trial court may not revoke probation for failure to complete a drug treatment program if sufficient time in the probationary period remains for a probationer to complete the program and the probation order did not specify that the program be completed within a certain time period or within a certain number of attempts).

Because Vernon’s remaining violations constitute substantial violations sufficient to support the revocation of his probation, we affirm the revocation order based on his violation of conditions five, seven, and twenty-three. See Mitchell v. State, 871 So.2d 1040 (Fla. 2d DCA 2004). We reverse as to the violation of condition thirty-two and remand for the trial court to strike the violation of condition thirty-two from the revocation order.

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

ALTENBERND and DAVIS, JJ., Concur.

      . Vernon filed a notice of appeal in case numbers 04-18342, 04-18344, 04-18630, and OS-2124.

      . We note that Vernon had over two years remaining in his probationary period when his probation was revoked.


text:
    Johnny William MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1488.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Johnny William Murray appeals his judgments and sentences for delivery of cocaine and possession of cocaine. We affirm the judgments without further comment. However, because the written sentencing documents do not accurately reflect the oral pronouncement and it is unclear what sentences the circuit court judge intended to impose for each count, we reverse the sentences and remand for resentencing.

In its oral pronouncement, the trial court announced two different sentences for possession of cocaine and failed to announce any sentence for delivery of cocaine. Thus, the oral pronouncement of the sentences is both confusing and ambiguous. The written sentencing documents reflect a sentence of three years’ imprisonment as a habitual felony offender for delivery of cocaine, a second-degree felony, and fifteen years’ probation for possession of cocaine, a third-degree felony. The latter sentence, however, is an illegal sentence. See Fonteyne v. State, 855 So.2d 99 (Fla. 2d DCA 2003) (holding that probationary sentence in excess of statutory maximum is an illegal sentence). We are unable to conclusively determine the trial court’s intent. We therefore reverse the sentences and remand for clarification of the sentences and the entry of written sentencing documents in accordance with that clarification. See Nobles v. State, 605 So.2d 996 (Fla. 2d DCA 1992).

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

FULMER, C.J., and ALTENBERND and KELLY, JJ., Concur.

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

      . See § 893.13(6)(a), Fla. Stat. (2005).


author: POLEN, J.

text:
    Mary SBORY, Individually and as Personal Representative of the Estate of Joseph N. Sbory, Deceased, Appellant, v. AMERICAN OPTICAL CORPORATION, et al., Appellees.
    No. 4D06-408.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Rehearing Denied June 27, 2007.

      David A. Jagolinzer and Case A. Dam of the Ferraro Law Firm, Coral Gables, for appellant.
    James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for appel-lee Goulds Pumps, Inc.
   POLEN, J.

Appellant, Mary Sbory, appeals the trial court’s grant of final summary judgment in favor of Appellee, Goulds Pumps, Inc. Goulds was one of many defendants below. Mary’s husband Joseph, who worked in engine rooms of ships during his time in the Navy, was diagnosed with an asbestos-related disease or injury in 2004. Sbory and his wife Mary filed a complaint against a large number of companies that manufactured or distributed asbestos or asbestos-containing products, including Goulds. Sbory died prior to trial, but after his deposition was taken. Based on conflicting testimony in Sbory’s deposition, Goulds filed a motion for summary judgment. Mary opposed the motion, arguing summary judgment would be improper as there were still material issues of fact and discovery had not been completed. The trial court granted the motion. We find the trial court erred in granting summary judgment prior to completion of discovery and reverse.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “In reviewing a summary judgment, this court ‘must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.’ ” 5th Avenue Real Estate Development, Inc. v. Aeacus Real Estate Limited Partnership, 876 So.2d 1220, 1221 (Fla. 4th DCA 2004) (quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001)). Summary judgments entered pri- or to material discovery being completed are premature. See Payne v. Cudjoe Gardens Prop. Owners Ass’n, 875 So.2d 669, 670 (Fla. 3d DCA 2004).

Sbory’s deposition testimony, as it related to Goulds, centered around his work with Goulds’ pumps, including maintenance and repair work. The pumps were surrounded by asbestos insulation, which was manufactured by another company, as well as having internal asbestos material. Initially, Sbory testified he did internal maintenance on the pumps, which would have indicated he was exposed to the internal asbestos material. However, on cross-examination, Sbory denied ever working on the internal portions of the pumps.

Normally, when there is conflicting deposition testimony, the trial court will not grant summary judgment, as this means there are disputed issues of fact. See Maroone Chevrolet L.L.C. v. SunTrust Bank, 904 So.2d 618 (Fla. 4th DCA 2005). However, this case presents a unique dilemma as Sbory’s deposition testimony about his work duties is the only evidence that can be used to determine his exposure to the internal asbestos material in Goulds’ pumps, as he is deceased and cannot testify at trial. His wife’s deposition indicates she does not know of any coworkers or witnesses that could testify about his work on the ships that exposed him to asbestos. We find this recantation of testimony disposed of the argument that Sbory worked with the pumps’ internal asbestos material.

However, as mentioned above, discovery had not been completed in this case. While the external asbestos insulation surrounding the pumps was produced by another manufacturer, Mary argues continued discovery might reveal that Goulds controlled or specified it was necessary to install asbestos insulation around the pumps, thereby linking it to Sbory’s asbestos exposure. We agree with Mary’s argument. In this case, given the fact that Sbory’s death precluded the clarification of his deposition testimony, the only chance for the case against Goulds to move forward was the possibility of discovering that Goulds specified its pumps be insulated with asbestos. Therefore, we find that the completion of discovery in this case is material to Sbory’s case. We reverse, with instructions to the trial court to allow the completion of discovery as it relates to Goulds.

GUNTHER and HAZOURI, JJ., concur.


text:
    Antonio HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-757.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Rehearing Denied June 28, 2007.
    Antonio Harris, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 948 So.2d 847 (Fla. 4th DCA 2007); Roberts v. State, 923 So.2d 578 (Fla. 5th DCA 2006).

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