author: TAYLOR, J.

text:
    C.K., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D06-3486, 4D06-3578.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    C. Lina Kell, Plantation, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   ON MOTION FOR RECONSIDERATION OR CLARIFICATION

TAYLOR, J.

We grant appellee’s Motion for Clarification, withdraw our previous opinion, and substitute the following in its place.

C.K., the father, appeals from an order finding him unfit for placement of the minor child in his home and requiring the father to comply with the requirements of the Interstate Compact on the Placement of Children (ICPC), as well as to complete other tasks. We affirm the court’s order only as to the ICPC study. We reverse those portions of the order that require the father to complete various counseling programs because the trial court lacked a sufficient evidentiary basis for ordering these tasks for the father.

The Department of Children and Families filed a verified petition of dependency of W.K., a child, as to C.C., his mother, and C.K., his father. At the dependency hearing, the court accepted C.C.’s consent to the petition and adjudicated the child dependent with respect to the mother. The proceedings thus concerned W.K’s dependency as to only the father.

At the conclusion of the hearing, the court held that the state had not proved by a preponderance of the evidence the allegations of the petition with respect to the father. W.K. was placed in the temporary legal and physical custody of a non-relative caregiver with whom he had been residing for a year and a half. The dependency order was silent as to the father.

Two weeks after the dependency hearing, the trial court conducted a hearing regarding the father’s fitness for the child’s placement with him. The court found that the father was not fit for placement because of prior domestic violence issues with W.K’s mother, his pattern of engaging in sexual relations with female minors, and his failure to adequately support his other children. The court ordered the father to comply with the ICPC and to complete a batterer’s intervention program, parenting classes, a psychological evaluation, and a psychosexual evaluation and therapy “if recommended.” Further, the trial court prescribed psychological counseling and a transition period for the child to ameliorate the traumatizing effects of removing him from his caretaker, with whom he had a “strong bond.”

The Department concedes that denying the father placement on the basis of the domestic violence issues and sexual contact with female minors was improper as there was no sufficient connection between those issues and endangerment to W.K. As to the additional requirements announced by the trial court at the fitness hearing, we hold that the court erred by entering those obligations. The trial court does have the authority to require a non-offending parent to participate in treatment and services. See § 39.521(l)(b), Fla. Stat.; J.P. v. Dep’t of Children & Families, 855 So.2d 175 (Fla. 5th DCA 2003); D.M. v. Dep’t of Children & Families, 807 So.2d 90 (Fla. 5th DCA 2002). We find here, however, that there is insufficient evidence to support such requirements as to W.K.

We affirm, however, the trial court’s order as to the requirement that the father comply with the Interstate Compact on the Placement of Children, section 409.401, Florida Statutes. The ICPC is an agreement between states that provides certain requirements for placement of children out-of-state. We disagree with the father’s contention that the ICPC applies only in foster care and adoption situations. Although Article III, sub-part (a) states that it applies to foster care and “possible adoptions,” we hold that the ICPC applies here because the court is transferring custody of the child to an out-of-state non-custodial parent. See H.P. v. Dep’t of Children & Families, 838 So.2d 583 (Fla. 5th DCA 2003) (finding the ICPC to apply where an out-of-state non-custodial parent seeks placement). Therefore, pursuant to Article III, subpart (d), before W.K. can be placed with the father, Washington State must provide written notification to the Florida Department of Children and Families that placement with the father is not contrary to the. interests of W.K.

Affirmed in part; Reversed in part.

WARNER and GROSS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary GROTENDORST, Appellant, v. Cynthia A. GROTENDORST, Appellee.
    No. 3D06-139.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Frederick Charles Sake, Miami Beach, for appellant.
    David L. Margolesky, Miami, for appel-lee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997); Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981).


text:
    Timothy O’NEIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-558.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See § 775.082(9)(a), Fla. Stat. (2005); MoniCode Ann. § 45-7-306(l)(a)(iv) (2005); State v. Chandler, 277 Mont. 476, 922 P.2d 1164 (1996).


text:
    Iliana J. BALKANSKI, Appellant, v. DOUBLE J OF BROWARD, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D06-1184.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Iliana J. Balkanski, in proper person.
    John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before GERSTEN, FLETCHER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Iliana Balkanski (“Balkanski”), appeals the Unemployment Appeals Commission’s order affirming the appeal referee’s decision disqualifying Balkanski from receiving unemployment benefits. We reverse.

There is no substantial competent evidence that Balkanski left her employment without good cause attributable to her employer. See Wood v. Unemployment Appeals Comm’n, 927 So.2d 127 (Fla. 2d DCA 2006); Kelly v. Dade County Sch. Bd., 872 So.2d 457 (Fla. 3d DCA 2004); Lewis v. Lakeland Health Care Ctr., Inc., 685 So.2d 876 (Fla. 2d DCA 1996). Accordingly, we reverse the order disqualifying Balkanski from receiving unemployment benefits.

Reversed.


author: SHAHOOD, J.

text:
    Hilberto CEDILLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-804.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Kelly V. Landers, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Hilberto Cedillo (“appellant”) was found guilty, as charged, by a jury of carjacking, resisting a law enforcement officer with violence, battery on a law enforcement officer, and felony battery. Appellant claims the trial court abused its discretion in allowing hearsay testimony from which the jury could infer that a non-testifying witness implicated appellant in the crime. We agree and reverse and remand for a new trial.

The investigating officer in the case, Detective Fresneda, testified that he interviewed a woman named Laurie Marzulli during the course of his investigation. Defense counsel objected, and a sidebar conference was held. Defense counsel expressed concern that the prosecutor was going to elicit testimony that Marzulli told Detective Fresneda that she got the victim’s car from appellant, thus impheating appellant in the crime. The prosecutor responded that she would not do that. The prosecutor continued the direct testimony of Detective Fresneda as follows:

[PROSECUTOR]: Detective Fresneda, without telling us what Laurie Marzulli told you, you cannot tell me because its hearsay. Tell me did you develop a suspect on the case, on the incident that occurred on January 22, 2003?
A: Yes I did.

Detective Fresneda then testified that he placed the suspect’s picture into a photographic lineup and the victim identified the suspect, appellant, out of that lineup.

Appellant argues that it was error for the trial court to allow the prosecution to present testimony from Detective Fresneda that appellant became a suspect in the case after Detective Fresneda interviewed Marzulli. Appellant claims this was improper hearsay evidence from which the jury could infer that Marzulli, a non-testifying witness, made statements implicating appellant in the crime. The State argues that the testimony appellant complains of does not meet the statutory definition of hearsay.

Hearsay is defined by statute as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2005). Marzulli was the declarant in this situation. The State is correct that Detective Fresneda never testified to any specific statement that Marzulli made to him, regardless of any reasonable inferences that could be drawn from Detective Fresneda’s testimony. However, this does not end the inquiry. Appellant relies upon a line of cases that have addressed the danger of introducing information supplied by a non-testifying witness that the defendant committed the crime. See, e.g., State v. Baird, 572 So.2d 904 (Fla.1990); Schaffer v. State, 769 So.2d 496 (Fla. 4th DCA 2000).

This court examined the issue recently in Stokes v. State, 914 So.2d 514 (Fla. 4th DCA 2005). In Stokes, appellant claimed the trial court erred in allowing the investigating detective to testify that appellant became a suspect after the detective interviewed a number of other people. Id. at 517. We identified the danger of the testimony as the possibility the jury could infer that the non-testifying witnesses the detective interviewed made accusatory statements or gave police information about the defendant’s involvement that was not presented to the jury. Id. The State argued that the detective’s testimony was admissible to show the defendant became a suspect in the course of the police investigation. We rejected the State’s argument on the reasoning that ‘ “an alleged sequence of events leading to an investigation and an arrest is not a material issue in this type of case. Therefore, there is no relevancy for such testimony to prove or establish such a nonissue.’” Id. (quoting Keen v. State, 775 So.2d 263, 274 (Fla. 2000)). We found the testimony impermissible hearsay and reversed and remanded for a new trial. Id.

Here, as in Stokes, the trial court erred in allowing the police officer to provide testimony implying that a non-testifying witness made accusatory statements against the defendant. “Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible.” Schaffer, 769 So.2d at 498. The sequence of events of the investigation leading to appellant’s arrest was not a material issue in the case. Contrary to the State’s argument, the officer’s testimony is still properly characterized as hearsay even though the specific statement of the non-testifying witness is not repeated. Id. at 499 (citing Postell v. State, 398 So.2d 851, 854 (Fla. 3d DCA 1981)).

The State made the accusatory implication established by Detective Fresne-da’s hearsay testimony a significant feature of the trial in order to link appellant to the crime. For example, the officer who arrested Marzulli described how he discovered her driving the victim’s car. In addition, the prosecutor directly focused on Detective Fresneda’s hearsay testimony during closing argument, telling the jury it was unlikely Marzulli would falsely accuse appellant of stealing the car just to spite him. The State has not met its burden to prove that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

We find the remaining issues raised by appellant to be without merit, but reverse and remand for a new trial on the issue addressed in this opinion.

Reversed and Remanded.

STEVENSON, C.J., and KLEIN, J., concur.


author: GROSS, J.

text:
    Calvin FELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1176.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, J.

Calvin Felton was convicted of false imprisonment, attempted sexual battery, and strong arm robbery. We reverse for a new trial because the circuit court improperly restricted Felton’s cross-examination of the victim.

The victim testified that Felton attacked her in a field behind a Taco Bell. An independent witness heard the victim’s screams and called the police. Before the police arrived, Felton got off of the victim and walked away with her purse, saying that she “owe[d] him.”

Felton first argues that the trial court erred in denying his cause challenge to three potential jurors. A trial court’s decision on a cause challenge is “subject to an abuse of discretion review.” Castro v. State, 644 So.2d 987, 990 (Fla.1994); Carratelli v. State, 832 So.2d 850, 854 (Fla. 4th DCA 2002). “Discretion is abused ‘only where no reasonable [person] would take the view adopted by the trial court.’ ” Singleton v. State, 783 So.2d 970, 973 (Fla. 2001) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)). Our review of the record indicates that the judge did not abuse his discretion in denying cause challenges for two of the jurors in question. As to the remaining juror, there was no reversible error because the judge gave Felton an additional peremptory challenge. See Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002) (indicating that preservation of an error concerning the denial of a cause challenge requires a request for an additional peremptory challenge and a denial of that request).

We agree with Felton that the trial court improperly precluded him from cross-examining the victim about the fact that she was “on methadone” at the time of the incident. At the hearing on the state’s motion in limine, the prosecutor told the judge that there was “no evidence” the victim “was under the influence of anything” on the day of the crime. However, at trial, the defense proffer established that the victim was on methadone when the crime occurred.

Cross-examination is the main way that a litigant tests the believability of a witness and the truth of her testimony. The right to cross-examination is the primary interest secured by the confrontation clause of the Sixth Amendment to the United States Constitution. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). A party may attack a witness’s credibility by “[s]howing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.” § 90.608(4), Fla. Stat. (2006). A witness’s drug use at the time of the crime may impact her “capacity or ability” to observe the events in question.

In Edwards v. State, 548 So.2d 656, 658 (Fla.1989), the supreme court set forth the three situations where evidence of a witness’s drug use is admissible to impeach the witness at trial:

[Evidence of drug use for the purpose of impeachment [is excluded] unless: (a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness’s ability to observe, remember, and recount.

This case falls under rule (a) in Edwards, because the victim admitted to being on methadone at the time of the attack. In precluding the evidence, the trial court focused on the lack of expert testimony showing the effects of methadone on a person’s ability to perceive; however, expert testimony is not necessary when the witness used drugs “at or about the time of the incident which was the subject of the witness’s testimony.” Hammett v. State, 908 So.2d 595, 597 (Fla. 2d DCA 2005).

Another basis for admitting the cross-examination about the victim’s methadone use is that the state opened the door to such testimony by portraying the victim in a misleading way on direct examination. On direct examination, the state painted a picture of innocent lovebirds who traveled to Florida for a family vacation; the victim testified that she came to Florida to be with her boyfriend and that she decided to move to Pompano Beach, the location of the Taco Bell, because she knew about the area from visiting her grandparents. In reality, the victim and her boyfriend were heroin addicts who moved to Florida to receive treatment at a methadone clinic in Pompano Beach. The proposed cross-examination was permissible to reveal the “whole story of a transaction only partly explained in direct examination.” Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997).

We do not find this error to be harmless because, after reading the transcript of the trial, we cannot say “that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986).

Reversed and remanded for a new trial.

WARNER and TAYLOR, JJ„ concur.


text:
    Casey L. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3300.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Casey L. Taylor appeals an order revoking his probation for failure to pay restitution. He contends that the trial court abused its discretion in revoking his probation because it did not order him to pay a specific monthly amount towards restitution and the evidence did not establish his ability or willful refusal to pay restitution. We disagree and affirm.

Appellant was charged by information with grand theft-motor vehicle, driving without a valid license, and leaving the scene of an accident causing property damage. Pursuant to the plea agreement, the state nolle prossed the grand theft charge and appellant pled no contest to driving without a license and leaving the scene. Appellant was placed on six months probation on each count, to run consecutively, with a condition to pay approximately $20,800 in restitution. The court ordered that the restitution be paid in equal monthly installments during his probation. Appellant signed an offender financial obligation agreement requiring him to make a minimum monthly payment of $2,690.07.

At the hearing on appellant’s violation of probation, appellant’s probation officer testified that appellant made only four payments of $100 toward his restitution. Appellant testified that his net monthly income is $1,400. His monthly expenses include $400 for rent, $400 for food, $120 for lunch at work, $100-$200 for clothes and work boots, and $200 for his cell phone. Appellant explained that he needs a cell phone for work, as he works construction and must be able to call 911 or his company in case of emergency. He acknowledged, however, that he is not a supervisor and that other men on his crew also have cell phones.

After hearing appellant’s testimony concerning his income and expenses and making some recalculations based on the reasonableness of his claimed expenses, the trial court found that appellant had $150 a month unaccounted-for-income. The court determined that appellant’s $200 monthly payment for a cell phone was excessive and unnecessary, and a willful violation, in itself. The court also found that although appellant “may not be able to make all of his monthly [restitution] obligation, he certainly could pay more than what he’s doing.” Consequently, the trial court found appellant to be in willful and material violation of his probation, revoked his probation, and sentenced him to 120 days in the county jail, with credit for 50 days time served.

In arguing that the trial court abused its discretion in revoking his probation, appellant makes three claims: (1) that the court improperly delegated the duty of formulating a restitution payment schedule to his probation officer; (2) that he had until the end of his probation to pay the entire restitution obligation; and (3) that the evidence did not show his ability to pay and willful refusal to pay. The express terms of the probation order signed by the trial judge refute appellant’s first two claims. With respect to appellant’s third argument, the evidence was sufficient to satisfy the conscience of the trial court that appellant had the ability to pay more towards restitution, but willfully failed to do so.

A violation which triggers a revocation of probation must be willful and substantial, and a trial court’s determination concerning the willful and substantial nature of a violation must be supported by the greater weight of the evidence. See Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). On appeal, the abuse of discretion standard of review applies to an order of probation revocation. Id.

In Spruill v. State, 643 So.2d 1191, 1192 (Fla. 5th DCA 1994), the fifth district upheld the trial court’s order revoking the defendant’s probation for failure to make any payments towards his monthly restitution obligation. There, the defendant was ordered to pay $1,700,000 in restitution to his fraud victims at the rate of $17,000 per month. Although the defendant lacked the ability to make the full monthly payment ordered, the evidence was clear that he had the ability to pay $50 a month toward restitution. However, he stopped making the $50-monthly payments when he moved away from Florida. The fifth district held that the trial court properly concluded that the defendant did not make a good faith effort to meet his obligations to the best of his financial ability.

In Osta v. State, 880 So.2d 804 (Fla. 5th DCA 2004), the fifth district affirmed the order revoking probation where the trial court found that the defendant could have paid much more towards his restitution than he did. There, the defendant was ordered to pay restitution of $62,529.96. He made only small payments and became delinquent in his payment plan by $24,000. Based upon evidence that the defendant had traveled extensively and maintained a group of “shell” companies, the fifth district affirmed the trial court’s finding that defendant willfully refused to pay restitution.

In this case, we similarly ñnd no abuse of discretion in the trial court’s determination that, though appellant may have been unable to pay the full monthly amount ordered, he could have paid more than he did towards his restitution obligation. Accordingly, we affirm the trial court’s order revoking appellant’s probation.

Affirmed.

STONE, J., and COLBATH, JEFFREY J., Associate Judge, concur.


author: DAMOORGIAN, DORIAN K, Associate Judge.

text:
    PALM BEACH POLO HOLDINGS, INC., Appellant, v. EQUESTRIAN CLUB ESTATES PROPERTY OWNERS ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 4D05-3341.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellant.
    Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, and Jeffrey D. Feldman and Samuel A. Lewis of Feldman Gale, P.A., Miami, for appellee.
   DAMOORGIAN, DORIAN K, Associate Judge.

Palm Beach Polo Holdings, Inc. (hereafter “Holdings”) appeals the trial court’s Final Judgment in favor of Equestrian Club Estates Property Owners Association, Inc. (hereafter “Association”). Holdings raises three issues on appeal. We affirm as to all, but we write to address only the claim that Holdings is entitled to a common law way of necessity over Equestrian Club Road.

Holdings is the fee simple owner of an undeveloped, unplatted property located in Wellington, Florida and referred to as the “100 Acre Lot.” The “100 Acre Lot” is bordered on the northeast by the “Equestrian Club Estates” residential development, on the northwest by the “Stadium Jumping Site,” on the east and west by unrelated parties, and on the south by the unbuilt extension of Lake Worth Road. Palm Beach Polo, Inc., (hereafter “Polo”) owns the Stadium Jumping Site, but Polo leases the Stadium Jumping Site to an entity called Stadium Jumping, Inc. North of Equestrian Club Estates and the Stadium Jumping Site is Pierson Road, a public roadway running east and west. Holdings sought access to the “100 Acre Lot” from Pierson Road via Equestrian Club Road, the Association’s private roadway that runs south from Pierson Road through Equestrian Club Estates.

In evaluating Holdings’ way of necessity claim, it is necessary to examine how the relevant properties became titled as they are today. In 1993, Tri-State Group, Inc. (hereafter “Tri-State”), a corporation owned by Glenn Straub, participated in a bankruptcy auction and was the winning bidder of the “100 Acre Lot” and the Stadium Jumping Site. However, Tri-State did not take title to either the “100 Acre Lot” or the Stadium Jumping Site. Instead, Mr. Straub sought and obtained permission from the Resolution Trust Corporation to assign the purchase and sale agreement from Tri-State to two newly formed Florida corporations, dividing the properties between the two companies. Mr. Straub then formed Holdings and Polo to effectuate this purpose. Holdings took title to the “100 Acre Lot,” while Polo took title to the Stadium Jumping Site. In light of this history, the trial court found that Mr. Straub created the situation in which the “100 Acre Lot” was allegedly landlocked. The trial court noted that absent this assignment, Tri-State would have owned both properties and the “100 Acre Lot” would not have been landlocked.

The issue before this court is whether the “100 Acre Lot” is inaccessible except over Equestrian Club Road and therefore a common law way of necessity exists to the benefit of Holdings over Equestrian Club Road. However, in analyzing this issue, we must defer to the factual findings of the trial court that are supported by competent, substantial evidence. This is because a judgment from the trial court comes to an appellate court clothed with a presumption of correctness. Peacock v. Carver, 315 So.2d 214 (Fla. 1st DCA 1975). Moreover, this presumption of correctness is even stronger when reviewing a judgment based upon the factual findings of the trial court. See Clegg v. Chipola Aviation, Inc., 458 So.2d 1186, 1187 (Fla. 1st DCA 1984) (“The resolution of factual conflicts by a trial judge in a nonjury case will not be set aside on review unless totally unsupported by competent and substantial evidence.”).

Section 704.01(1), Florida Statutes, codifies the common-law rule with respect to the implied grant of a way of necessity:

[A]n implied grant exists where a person has heretofore granted or hereinafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained or hereinafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States....

“A common law way of necessity is an implied reservation or grant that arises when a single grantor conveys part of a parcel of land resulting in either the part conveyed or the part retained being cut off from access to a public road.” Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla.2004). A common law way of necessity is grounded on the presumption that whenever a party conveys property he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Roy v. Euro-Holland, Vastgoed, B.V., 404 So.2d 410, 412 (Fla. 4th DCA 1981). As the First District has explained, “the deed of the grantor as much creates the way of necessity as it does the way by grant, the only difference between the two being that one is granted in express words and the other only by implication.” Stein v. Darby, 126 So.2d 313, 318 (Fla. 1st DCA 1961).

A claimant seeking to establish a way of necessity, whether by implied grant or statutory way, has the burden of proof to establish that he or she has no practicable route of ingress or egress. See Moran v. Brawner, 519 So.2d 1131, 1133 (Fla. 5th DCA 1988). The Florida Supreme Court has held that the test for an implied grant of way of necessity is “absolute necessity,” not just reasonable necessity. See Tortoise Island Cmtys., Inc. v. Moorings Ass’n, Inc., 489 So.2d 22 (Fla.1986); see also Keene v. Jackson, 732 So.2d 1138, 1139 (Fla. 1st DCA 1999) (“A way of necessity requires a showing of absolute necessity, rather than mere convenience”). In order to establish a way of necessity, the owner must prove: 1) both properties must have been owned by the same party; 2) the common owner or source of title must have created the situation causing the property to become landlocked; and 3) at the time the common owner or common source of title created the situation or the property became landlocked, the property retained by the grantor must have had access to a public road. Roy, 404 So.2d at 412.

In the Final Judgment, the trial court found that while access over Equestrian Club Road may be more “convenient,” it is not an absolute necessity in that Holdings has been able to access the “100 Acre Lot” over the Stadium Jumping Site. The trial court further found that but for Mr. Straub’s intentional act of transferring the properties to two separately controlled corporations, the current “necessity” claim would not exist. These findings are supported by competent, substantial evidence. Moreover, we agree with the trial court that it would be manifestly unfair to allow Holdings to obtain a way of necessity based upon the actions of Mr. Straub in creating the non-unity of title by the voluntary decision not to take title in his wholly-owned corporation, Tri-State.

Affirmed.

GUNTHER and FARMER, JJ., concur.


author: STEVENSON, C.J.

text:
    Neli MONTALVO, Appellant, v. Robert MONTALVO, Appellee.
    No. 4D06-1882.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellant.
    No brief filed for appellee.
   STEVENSON, C.J.

This is an appeal by Neli Montalvo of the final judgment of dissolution of her four-year marriage to Robert Montalvo. The parties have one minor child, a daughter born in August 2002. In the final judgment, the trial court declared the wife primary residential parent of the minor child, awarded the husband visitation, and made an unequal distribution of the marital assets. We affirm in part and reverse in part.

A review of the equitable distribution provisions of the final judgment shows that the husband was awarded $115,503 in marital assets and the wife $23,750. After this distribution, the trial court then required the husband to pay the wife $31,000. Thus, in the end, the husband received $84,503 and the wife $54,-750 — a discrepancy of some $29,753. We agree with the wife that the unequal distribution of the marital assets must be reversed absent any findings referencing factors in Florida Statutes section 61.075 (2006), and explaining reasons for the unequal distribution. See, e.g., Boutwell v. Adams, 920 So.2d 151, 153 (Fla. 1st DCA 2006); Peacock v. Peacock, 879 So.2d 96 (Fla. 4th DCA 2004); Bailey v. Bailey, 851 So.2d 286, 287 (Fla. 3d DCA 2003). On remand, the trial court must reconsider the distribution scheme and either effect an equal distribution or make findings necessary to support unequal distribution. Additionally, we note that the trial court may consider the misconduct of either party in fashioning the equitable distribution only if the misconduct resulted in wasting or depletion of the marital assets. See, e.g., Murray v. Murray, 636 So.2d 536, 538 (Fla. 1st DCA 1994).

With respect to visitation, the final judgment allows the husband two nights per week with the child with the proviso that he tell the wife “in advance” which days he intends to take the child. The wife complains that since the order gives the husband sole discretion to pick the two days for his visitation and does not establish any timeframe for the notice that he is required to give, the order creates an unmanageable situation where she and the child “will not be able to organize their life or make plans.” We agree to an extent with the wife’s complaint. Normal planning for weekend and other leisure activities for the wife and child together could be difficult and easily disrupted. As presently established, the visitation schedule is simply unreasonable. Cf. Booth v. Booth, 842 So.2d 878 (Fla. 2d DCA 2003) (reversing judgment that awarded mother visitation, but failed to establish schedule of any kind); Letourneau v. Letourneau, 564 So.2d 270 (Fla. 4th DCA 1990) (reversing judgment awarding husband visitation to be exercised upon approval of wife and remanding with instructions that the trial court establish schedule); Savoy v. Savoy, 529 So.2d 829, 830 (Fla. 5th DCA 1988) (reversing judgment that awarded father “restricted and limited visitation,” but permitted mother to determine when such visitation would occur).

Lastly, the trial court included a provision in the final judgment providing that “[njeither party shall remove the children from the counties within the 19th Judicial Circuit, Palm Beach or Broward Counties, without a Court Order.” The wife complains that this provision is not in the best interests of the child because it may prevent the child from experiencing ordinary and routine trips with either parent unless the court becomes involved. While case law recognizes that, in the context of a marital dissolution, trial courts have the authority to restrict a child’s travel out of the country, out of the state, or out of the county, see McIntyre v. McIntyre, 452 So.2d 14, 20 (Fla. 1st DCA 1984), “[t]he predicate for the existence of this power is a showing that the movement of the child may interfere with the visitation rights accorded to the other party,” Foss v. Foss, 392 So.2d 606, 608 (Fla. 3d DCA 1981). Here, nothing in the evidence suggested that either parent having the ability to temporarily travel out of the county with the child will interfere with visitation. Thus, on remand, the trial court is directed to remove the travel restriction from the final judgment.

We have carefully considered the other issues raised by the wife on appeal, but we find no error.

Affirmed in part, Reversed in part, and Remanded.

KLEIN and SHAHOOD, JJ., concur.


text:
    Clayton Mark OBEAR, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-1786, 4D06-2888.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Walker v. State, 384 So.2d 730 (Fla. 4th DCA 1980).

STONE, FARMER and MAY, JJ„ concur.


text:
    The SCHOOL BOARD OF BROWARD COUNTY, Appellant, v. MR. ELECTRIC & ASSOCIATES, INC., and Multiair Flow System & Appliance Inc., Appellees.
    No. 4D06-1717.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Byron G. Petersen and Kim L. Hawthorne of Petersen & Hawthorne, P.A., Fort Lauderdale, for appellant.
    Larry R. Leiby and Richard E. Gutten-tag of Leiby Stearns and Roberts, P.A., Fort Lauderdale, for appellee Mr. Electric & Associates, Inc.
   PER CURIAM.

Affirmed. See Palm Beach County v. Trinity Indus., Inc., 661 So.2d 942 (Fla. 4th DCA 1995).

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: MAY, J.

text:
    Jeffrey C. BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1393.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for possession of a firearm by a convicted felon after being acquitted of attempted murder. The trial court sentenced him to twelve years with a three-year mandatory minimum on the possession charge. He raises two issues, one concerns the court’s imposition of a mandatory minimum sentence without the requisite jury finding of “actual” possession of the firearm. We agree with his position on this issue and reverse that part of the sentence and remand the case to the trial court to strike the mandatory minimum part of his sentence.

The charges arose from a domestic dispute between the defendant and his girlfriend over her use of drugs. According to the defendant, his girlfriend grabbed the gun and it discharged as he attempted to disarm her. The girlfriend testified that the defendant threatened to kill himself if she would not stop using drugs. The next thing she knew, she was shot in the neck. It appears that the gun was either in the possession of one, the other, or both.

The court severed the jury’s consideration of the attempted murder charge from the possession charge. However, during the jury’s consideration of the attempted murder charge, it was given a special interrogatory concerning the defendant’s possession of the firearm. The jury found the defendant in possession of the firearm. However, possession was defined just below the interrogatory as actual, constructive, or joint. The fourth paragraph stated: “Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.” The jury circled the words “Possession may be joint.” The jury then acquitted the defendant of the attempted murder charge.

Defense counsel advised his client that he did not need a separate jury determination on the possession charge because the defendant had admitted he was a convicted felon during his testimony and the jury had answered the special interrogatory affirmatively. The defendant agreed. Thereafter the defendant entered a no contest plea to the possession charge, but maintained that he did not possess the firearm and reserved the right to appeal that issue.

At the sentencing, the defendant moved to withdraw his plea. The court denied the motion, adjudicated him guilty of the possession charge, and sentenced him to twelve years with a three-year mandatory minimum. The defendant argues that because the jury did not find him in “actual” possession of the firearm, the court lacked the requisite finding to impose the mandatory minimum three-year sentence. We agree.

The State charged the defendant with possession of a firearm by a convicted felon. That offense is proven by either actual or constructive possession. James v. State, 868 So.2d 1242, 1245 (Fla. 4th DCA 2004). To impose a three-year mandatory minimum sentence, however, the factfinder must make a specific finding of actual possession. § 775.087(2)(a)l.r., Fla. Stat. (2004) see, e.g., Bundrage v. State, 814 So.2d 1138, 1135 (Fla. 2d DCA 2002) (there must be express finding of actual possession to enhance the sentence); Johnson v. State, 855 So.2d 218, 222 (Fla. 5th DCA 2003) (actual possession for the purposes of sentence enhancement means “carried on his person.”).

Here, the special interrogatory asked: “If you find the defendant not guilty above, do you find that he possessed a ‘firearm’?” The jury answered affirmatively, but circled “joint possession” as it was defined. Because joint possession could be constructive rather than actual, the requisite finding of actual possession was lacking. Absent that finding the mandatory minimum sentence must be vacated.

Reversed and Remanded to strike the three-year mandatory minimum.

STONE and FARMER, JJ., concur.


text:
    Kyle BENSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-925.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Copertino v. State, 726 So.2d 330 (Fla. 4th DCA 1999).

STONE, FARMER and MAY, JJ., concur.


text:
    Joseph RIOUX, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-3313.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Joseph Rioux, Clermont, pro se.
    No response required for respondent.
   PER CURIAM.

We treat this petition for habeas corpus as a petition for mandamus, because Petitioner seeks to compel appellate counsel to turn over “all files, records, transcripts, notes, letters from appellant or anyone pertaining to instant case.” This claim is not properly brought in this court. Dumas v. Marrero, 864 So.2d 531, 532 (Fla. 5th DCA 2004) (holding that appellate court is not the proper forum to raise a claim that counsel failed to turn over records because appellate court does not conduct evidentiary proceedings or factfind-ing). Further, as drafted, the claim is too vague to be acted upon. Id. (finding claim for “records, files, and or documents” was too vague).

Petitioner must specifically identify the records he claims were not turned over and seek relief in the trial court. See Thompson v. Unterberger, 577 So.2d 684 (Fla. 2d DCA 1991) (holding, on appeal of denial of mandamus petition in the trial court, that appointed appellate counsel should not be compelled to produce “case records” without charge until petitioner specifically identifies the records and demonstrates that they are his personal property (e.g., produced at public expense) and not counsel’s work product).

. We therefore dismiss the petition without prejudice to his right to seek relief in circuit court.

GUNTHER, STONE and WARNER, JJ., concur.


text:
    S.H., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D05-4835.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Kevin G. Thomas, Hallandale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   GROSS, J.

S.H., the father, appeals the final order adjudicating his two minor children dependent and asserts there was no competent substantial evidence to support the adjudication. Because we find that the evidence was insufficient to establish by a preponderance of the evidence that the children were neglected or in substantial risk of imminent neglect, we reverse.

The state based its allegations of neglect and imminent risk of neglect on the father’s unstable housing and employment, and the father’s inability to provide the minor children with basic necessities, such as food, clothing, and shelter. Under Florida law a child is neglected when it is either deprived of “necessary food, clothing, shelter, or medical treatment,” or “permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired.” See § 39.01(43), Fla. Stat. (2005). However, “the foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person.” Id.

The lower court’s adjudication of dependency is centered on the father’s financial inability to provide for his children. At most, the record establishes that the father could not afford stable housing and did not have steady employment. While these circumstances may serve as grounds for an adjudication of dependency, in the instant case they cannot, because the evidence at bar does not disclose any offer of services which were rejected by the father. See Brown v. Feaver, 726 So.2d 322, 324 (Fla. 3d DCA 1999) (“[H]omelessness, derived solely from a custodian’s financial inability, does not constitute abuse, neglect, or abandonment unless the Department offers services to the homeless custodian and those services are rejected”). Because the evidence establishes that the father’s circumstances were “caused primarily by financial inability,” and the children were not willfully deprived of food, clothing, shelter, or medical treatment, section 39.01(43) forbids a finding of neglect. Therefore, we reverse the lower court’s order adjudicating the minor children dependent. See K.H. v. State Dep’t of Health & Rehab. Servs., 527 So.2d 230 (Fla. 1st DCA 1988).

WARNER and TAYLOR, JJ., concur.


text:
    R.F., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-2508.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Felicia Shaman of Law Office of Felicia Shaman, P.A., Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

Based on appellee’s concession of error, we reverse the order denying the father’s motion for reunification and terminating protective supervision for the reasons stated in H.G. v. Department of Children & Families, 916 So.2d 1006 (Fla. 4th DCA 2006). We remand this case to the trial court for a determination of whether the father substantially complied with his case plan. If the father has substantially complied with his case plan and the court is satisfied that unification will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health, the court shall return the minor child to his father. See § 39.701(9)0»), Fla. Stat. (2006).

Reversed.

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    C.W. LOBSTER CO., LLC, Appellant, v. Andy SCHNARE, Individually, Bluenose Seafood Inc. d/b/a Bluewater Seafood, and Rilbri L.L.C., Appellees.
    No. 4D05-4596.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Louis C. Arslanian, Fort Lauderdale, for appellant.
    Thomas L. Abrams of Gamberg & Abrams, Fort Lauderdale, for appellee Andy Schnare.
   PER CURIAM.

In light of C.W. Lobster’s confession of error concerning the amount of damages awarded for two unpaid invoices, we remand this case to the trial court to recalculate the damages awarded and conduct any evidentiary hearings it deems necessary to adjust the amount. We affirm in all other respects.

Affirmed in part, Reversed in part, and Remanded with directions.

KLEIN, SHAHOOD, JJ., and REYES, ISRAEL U., Associate Judge, concur.


author: SILBERMAN, Judge.

text:
    Roger Allen EICHELBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3630.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2007.

      James Marion Moorman, Public Defender, and Jean-Jacques A. Darius, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Roger Eichelberger appeals his convictions and sentences for three counts of aggravated stalking. We affirm without comment his challenges as to the trial court’s evidentiary rulings and the court’s instructions to the jury. However, because Eichelberger’s convictions for three separate counts of aggravated stalking violate the constitutional guarantees against double jeopardy, we reverse two of the convictions and remand for entry of a corrected judgment and for resentencing.

Eichelberger argues that his convictions for three separate counts of aggravated stalking violate double jeopardy principles because the convictions all arise from a single criminal episode. Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal. Marinelli v. State, 706 So.2d 1374, 1375 n. 1 (Fla. 2d DCA 1998).

The State charged Eichelberger with three counts of aggravated stalking pursuant to section 784.048(4), Florida Statutes (2002). In each count, the State alleged that between July 1, 2002, and October 16, 2002, Eichelberger “knowingly, willfully, maliciously, and repeatedly” contacted or attempted to contact the victim in violation of an injunction for protection against repeat violence, an injunction for protection against domestic violence, or other court-imposed prohibition of conduct. Each count alleged that Eichelberger used a different form of contact or attempted contact to stalk the victim. Count one alleged that he used the telephone, count two alleged that he used mail or written correspondence, and count three alleged that he came within five hundred feet of the victim’s residence.

Section 784.048(4) provides as follows: Any person who, after an injunction for protection against repeat violence pursuant to s. 784.046, dr an injunction for protection against domestic violence pursuant to s. 741.80, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows or harasses another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 784.048(l)(a) defines the term “harass” as engaging “in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” Section 784.048(l)(b) defines the term “course of conduct” as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose,” excluding constitutionally protected activity.

This court has previously held that multiple convictions of misdemeanor stalking for actions occurring during the same time period violate double jeopardy principles. Marinelli, 706 So.2d at 1375. In Marinel-li, the State charged the defendant with misdemeanor stalking. We noted that “[ijnherent in the concept of stalking is that the actions comprise a ‘course of conduct,’ which is defined as ‘a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.’ ” Id. (quoting § 784.048(l)(b), Fla. Stat. (1993)). We concluded that the defendant’s convictions for two misdemeanor stalking offenses based on one course of conduct between January 2, 1994, and February 3, 1994, required identical elements of proof, including the identical time frame, and thus violated double jeopardy.

Here, the State argues that the multiple convictions are proper because Eichel-berger engaged in three separate acts of aggravated stalking through the use of telephone messages, létters, and coming within five hundred feet of the victim’s residence. We cannot agree. Eichelber-ger’s acts, whether by telephone, letter, or approach within a specified distance, occurred during the three-and-a-half month time period alleged by the State in the information. The State did not present evidence of any break in Eichelber-ger’s course of conduct that would mark the end of one series of acts and the start of another, or the end of one form of contact and the start of another. Instead, the evidence established one course of conduct that was ongoing during the pertinent time period. As such, the proof supported a conviction for one count of aggravated stalking.

This case is distinguishable from State v. Johnson, 676 So.2d 408 (Fla.1996), in which the Florida Supreme Court determined that the defendant’s convictions for aggravated stalking and for contempt did not violate double jeopardy principles. Although both offenses were based upon the same course of conduct in which the defendant contacted his wife in violation of a domestic violence injunction, the court noted that the stalking and contempt charges contained different elements of proof. Id. at 411. That is not the case here, where the evidence did not establish different crimes with different elements of proof.

This case is also distinguishable from State v. Jones, 678 So.2d 1336 (Fla. 5th DCA 1996). There, Jones was arrested and charged with aggravated stalking for conduct that allegedly occurred on April 30,1995. While he was in jail, he allegedly again engaged in efforts to contact the victim during the period from May 1 to May 16, 1995. As a result, the State charged him in a second case with aggravated stalking.

Jones argued that because aggravated stalking is a continuing crime, he should only have been subject to a single prosecution. Id. at 1337-38. The court disagreed, noting that “while aggravated stalking requires repeated acts, such acts could conceivably constitute separate and distinct factual events which would support multiple prosecutions and convictions.” Id. at 1338. The court explained as follows:

[I]f an accused repeatedly follows or harasses the victim with the requisite intent he may be guilty of aggravated stalking. If, after prosecution for the offense, the accused again undertakes to follow or harass on a repeated basis the victim, again with the requisite intent, he has committed another aggravated stalking.

Id. The court noted that the informations charging Jones encompassed separate time frames. The court concluded that Jones’s arrest for the first crime “concluded the factual event which formed the basis for the arrest and began a separate and distinct factual event.” Id.; see also State v. Evans, 681 So.2d 768, 769 (Fla. 5th DCA 1996) (reversing dismissal of aggravated stalking charge on double jeopardy grounds because the charging documents alleged conduct that occurred on different dates in two different counties).

Here, the State charged Eichelberger for an ongoing course of conduct that occurred during a single time period. Although the State alleged different means of contact during the same time period, it did not allege or establish the end of one course of conduct and the start of a new course of conduct. Accordingly, we affirm Eichelberger’s conviction for one count of aggravated stalking but reverse the other two convictions for the same crime. We remand for entry of a corrected judgment reflecting a single conviction for aggravated stalking.

As to Eichelberger’s sentence, the trial court sentenced him to the lowest permissible prison sentence calculated under a sentencing scoresheet that included points for the multiple convictions of aggravated stalking. Because the points for the multiple convictions cannot be included in computing the lowest permissible prison sentence, we reverse Eichelberger’s sentence and remand for resentencing using a corrected scoresheet.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.

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


text:
    David PIPKIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3730.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2007.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm without further comment David Pipkin’s conviction for attempted second-degree murder and sentence of ten years’ imprisonment followed by five years’ probation. The State agrees that the costs imposed pursuant to sections 775.083(2) and 939.185(l)(a), Florida Statutes (2004), were based upon statutory provisions not in effect on the date of Mr. Pipkin’s offense. We decline the State’s invitation to revisit our precedent on this issue and remand with instructions for the trial court to strike these costs from the judgment. See Griffin v. State, 946 So.2d 610 (Fla. 2d DCA2007).

Affirmed.

ALTENBERND, CASANUEVA, and SALCINES, JJ., Concur.


text:
    Miguel LOPEZ-MERCED, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-747.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2007.
    Miguel A. Lopez-Merced, Punta Gorda, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Miguel Lopez-Merced (“appellant”) appeals from the order denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the 3.850 motion as untimely by order rendered on January 30, 2006, even though appellant argued in his memorandum of law that the two-year limitation period had been tolled because he was incarcerated out-of-state and lacked access to Florida legal materials. Appellant filed a motion for rehearing under the mailbox rule on February 10, 2006, but then filed a notice of appeal under the mailbox rule on February 24, 2006, before the lower court considered the motion for rehearing. The trial court later granted the motion for rehearing by order rendered on February 28, 2006, and ordered the State to respond to the 3.850 motion, specifically as to appellant’s claim that the standard two-year filing period was tolled.

The order granting the motion for rehearing was entered without jurisdiction as appellant abandoned his motion when he filed the notice of appeal. See In re: Forfeiture of $104,591 in U.S. Currency, 589 So.2d 283 (Fla.1991). After the trial court granted the motion for rehearing, appellant voluntarily dismissed his appeal. He then belatedly realized that the order granting the motion for rehearing was a nullity, because he next filed a motion to reinstate the appeal, which this court granted.

As the trial court should not have summarily denied the 3.850 motion as untimely without first considering appellant’s tolling argument, the order denying relief is reversed and the case is remanded to the trial court so that it can reconsider the timeliness issue.

REVERSED and REMANDED.

ORFINGER, MONACO and TORPY, JJ., concur.

      . See Fla. R.Crim. P. 3.850(b).

      . See Haag v. State, 591 So.2d 614 (Fla. 1992).

      . See Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997).

      .This court ordered the State to respond to the order denying appellant's 3.850 motion, but the State instead filed a motion to supplement the record. The record-on-appeal contains all of the necessary documents. We therefore deny the motion to supplement and withdraw our show cause order.


author: DAVIS, Judge.

text:
    Victor PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3565.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.

      Charles M. Britt, III, of Charles M. Britt, P.A., Bradenton, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Victor Perez challenges his conviction and sentence for robbery with a weapon. Because the trial court improperly limited Perez’s counsel in her cross-examination of the victim’s identification testimony, we reverse.

Perez was charged by information with taking a credit card from a female victim through use of force. It was further alleged that Perez carried a knife during the robbery. There was no physical evidence linking Perez to the attack; the State’s case was based entirely on the victim’s eyewitness identification.

Perez filed a motion to suppress the identification due to the procedures used during the investigation. Although the victim did not identify anyone in the first photo-pack shown to her, she did select Perez from the second photo-pack. The only picture appearing in both photo-packs was that of Perez. Following this photo identification, the victim was taken to the police station where she identified Perez as he sat in a room with a detective. Perez argued that these procedures tainted the identification. The trial court denied the motion to suppress, and the case proceeded to trial on the same day that the suppression hearing was held.

At trial, the victim again identified Perez as her assailant. However, during cross-examination of the victim, Perez’s attorney referred to the victim’s prior identification of Perez’s picture in the photo-lineup, asking: “[I]sn’t it true you turned to Detective Craddock and asked him, You’re sure that’s the one?” In response, the victim replied, “Not to my recollection.” The defense attorney then addressed the trial court, advising that her recollection of the victim’s testimony at the suppression hearing earlier that day was that the victim did in fact ask the detective that question. The attorney then asked for time to obtain a copy of the transcript of the suppression hearing for impeachment purposes. The trial judge denied that request, observing that he did not remember her making such a statement. Perez’s attorney then asked for some “latitude” in further cross-examining the victim by allowing her to remind the victim of what she had said. The trial court also denied that request. Based only on the victim’s identification testimony, the jury found Perez guilty as charged.

Perez raises three issues on appeal. We affirm the trial court’s decision to deny the motion to suppress without discussion. However, we conclude that the trial court erred -in denying Perez the opportunity to obtain a copy of the transcript of the suppression hearing for impeachment purposes and in denying the attorney the opportunity to cross-examine the witness on that issue. Because we determine that these errors were not harmless, we reverse.

On appeal, we review a trial court’s limitation of cross-examination for an abuse of discretion. See Docekal v. State, 929 So.2d 1139 (Fla. 5th DCA 2006).

Full cross-examination of a witness on a subject opened by direct examination is an “absolute right.” Coco v. State, 62 So.2d 892, 894 (Fla.1953). This cross-examination is “especially necessary” when the witness being cross-examined is the State’s key witness, upon whom the credibility of the State’s case depends. Tomengo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004). A trial court commits reversible error when it prohibits cross-examination that seeks to elicit facts that are “ ‘germane to that witness’ testimony and plausibly relevant to the theory of defense.’ ” Bertram v. State, 637 So.2d 258, 260 (Fla. 2d DCA 1994) (quoting Pace v. State, 596 So.2d 1034, 1035 (Fla.1992)). The purpose of cross-examination includes the attempt “(1) to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct examination and, (2) to impeach the credibility of the witness.” Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). The United States Supreme Court opined that, on cross-examination, counsel “is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

In this case, the victim was the only witness who could tie Perez to the attack. At the suppression hearing, she volunteered that she had asked the detective for confirmation after she identified the picture of Perez in the photo-lineup. This would have been relevant evidence for the jury to consider in determining the reliability of her later identification of Perez at the police station and then at trial. Additionally, Perez was entitled to impeach the witness’ credibility. That the victim remembered the exchange with the detective well enough to volunteer the information at the suppression hearing, but then did not remember the conversation only a few hours later at trial, is a potential contradiction that Perez could argue as impeachment. The trial court’s denial of Perez’s attorney’s requests denied Perez the opportunity to fully present his defense.

The record implies that the transcript of the suppression hearing had not been typed as of the time of the victim’s testimony at trial. However, Perez was entitled to have a copy of the transcript for use at trial. See Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). Although the trial judge may not have remembered the victim’s testimony from the suppression hearing, the brief time it would have taken to have asked the court reporter to find that portion of the hearing notes would not have unduly burdened the trial schedule. Had the trial judge been aware that the witness had in fact made that statement, he might have ruled differently in light of the importance to Perez’s defense. However, the denial of counsel’s request to obtain a copy of that portion of the suppression hearing transcript for use in further cross-examination of the witness was an abuse of discretion that effectively denied Perez his fundamental right of cross-examination. See Russo v. State, 418 So.2d 483, 484 (Fla. 2d DCA 1982) (concluding that the witness’ story was “so crucial to the [Sjtate’s case [that] omission of any evidence relating directly to his credibility was harmful and prejudicial to the defense”).

Reversed and remanded.

CANADY, J., and CRENSHAW, MARVA L., Associate Judge, Concur.

      . A review of the transcript of the suppression hearing reveals the following statement by the victim: "And then I asked [Detective Crad-dock], Are you sure that I picked the right person? Or something to that effect.” Upon Perez's attorney’s inquiry as to the detective's response, the victim advised that "[h]e just nodded.”


author: CANADY, Judge.

text:
    Christopher J. CORBO, and Precision Performance Physical Therapy & Rehabilitation of Florida, P.A., Petitioners, v. Eulalia GARCIA, Respondent.
    No. 2D06-4222.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.

      Jason M. Azzarone of Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A., Tampa, for Petitioners.
    Jose L. Estrada of Maney & Gordon, P.A., Tampa, for Respondent.
   CANADY, Judge.

The petitioners, Christopher Corbo and Precision Performance Physical Therapy & Rehabilitation of Florida, P.A., seek cer-tiorari review of a circuit court order denying their motion to dismiss Eulalia Garcia’s complaint for negligence. We grant the petition.

I.Background

Garcia filed a complaint in circuit court against the petitioners alleging that petitioner Corbo “connected a machine to [Garcia’s] arms, which provided electrical stimulation” that caused “burns to both her arms.” Garcia claimed that the petitioners were negligent in failing to exercise reasonable and ordinary care in maintaining their physical therapy equipment and that the petitioners “owed a duty to [their] business invitees ... to exercise reasonable and ordinary care to keep the premises in a reasonably safe condition for [their] business invitees.”

The petitioners filed a motion to dismiss the complaint for failure to comply with the medical malpractice presuit screening requirements of chapter 766, Florida Statutes (2004). The petitioners claimed that Garcia received the alleged burns during the rendering of physical therapy treatment. The trial court denied the motion to dismiss on the ground that the medical malpractice presuit screening requirements were inapplicable because Garcia’s complaint alleged ordinary negligence and did not allege medical malpractice.

In their petition for writ of certiorari, the petitioners assert that “the trial court’s ruling failed to recognize that as alleged, the [petitioners’] actions arose out of the rendering of medical care in the form of physical therapy, requiring compliance with Florida’s medical malpractice pre-suit screening requirements.”

Garcia responds that her claim does not arise out of the rendering of or the failure to render medical care or services. Garcia claims that the negligent conduct alleged is that the petitioners, as business operators, failed to properly maintain their equipment prior to her receiving treatment.

II.Certiorari Jurisdiction

“Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue.” Fassy v. Crowley, 884 So.2d 859, 363 (Fla. 2d DCA 2004). A nonfinal order that erroneously allows a plaintiff to proceed with an action without complying with the presuit requirements of chapter 766 would result in material injury to the defendants that could not be corrected on appeal. Id. at 364. Therefore, this court has certiorari jurisdiction to review the trial court’s order.

III.Analysis

The presuit screening requirements of chapter 766 apply to claims “arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(l)(a); see J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 949 (Fla.1994). A negligence claim is subject to the presuit screening requirements if “[t]he wrongful act [is] directly related to the improper application of medical services[] and the use of professional judgment or skill.” Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997). “ ‘The key inquiry under the statute is whether the action aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care.’ ” Fassy, 884 So.2d at 364 (quoting J.B., 635 So.2d at 947) (quotation marks omitted) (alteration in original). “Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1).” Fassy, 884 So.2d at 364. “The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106(1) ... is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1).” Liles v. P.I.A. Medfield, Inc., 681 So.2d 711, 712 (Fla. 2d DCA 1995). Section 766.102(1) provides that

the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

Garcia does not dispute that the petitioners are considered health care providers for purposes of the presuit screening requirements of chapter 766. Section 766.102(1) refers to the definition of health care provider in section 766.202(4), which includes physical therapists licensed under chapter 486 and professional association partnerships of physical therapists.

In Goldman v. Halifax Medical Center, Inc., 662 So.2d 867, 368 (Fla. 5th DCA 1995), the plaintiff alleged that the operator of mammographic equipment “negligently applied excessive pressure and caused one of [the plaintiffs] silicone breast implants to rupture.” The plaintiff “also alleged that her injury was caused in part by the equipment not having been properly calibrated.” Id. The court considered whether “the failure to calibrate properly the mammography equipment” constituted “medical malpractice.” Id. at 370. The court held that the plaintiffs claim “is not unlike a claim that one was injured when a doctor used an unclean scalpel, a claim which would clearly fall within the realm of providing medical care.” Id. The court held that “the claim arises out of the rendering of medical care or services because the patient was injured as a direct result of receiving medical care or treatment.” Id. at 371 (internal quotation marks omitted).

We conclude that Garcia’s claim is closely analogous to the claim raised in Goldman. Like the claim in Goldman, Garcia’s claim arose out of the rendering of medical treatment because Garcia’s injuries occurred as a direct result of her receiving physical therapy treatment from the petitioners. The injury alleged by Garcia was directly inflicted by the medical care — that is, physical therapy treatment — provided to her by the petitioner. Garcia’s claim thus arose “out of the rendering of ... medical care or services.” § 766.106(l)(a). The alleged “wrongful act” of the petitioners was “directly related to the improper application of medical services ... and the use of professional judgment or skill.” Lynn, 692 So.2d at 1003.

In the cases relied upon by Garcia in support of her argument that her claim is one for simple negligence, the patients did not receive their injuries as a direct result of medical treatment.

In Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005), the plaintiff was hit in the head with a dental x-ray machine as the dental assistant attempted to place the machine in position prior to performing the x-ray. The court held that “[deciding how to unstick the arm of the x-ray machine was not a medical service requiring the use of a medical professional’s judgment or skill.” Id. at 218-19. The Mobley court distinguished Goldman on the basis that the patient in Goldman was receiving medical treatment and that the medical treatment in Mobley had yet to begin. Id. at 219. “There is a difference between setting up to perform a medical procedure and its actual performance.” Id.; see also Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729, 731 (Fla. 4th DCA 2004) (holding that plaintiffs claim, which was based on an injury received when a hospital employee tried to return a dialysis chair to an upright position, did not arise out of the receiving of medical care because “[t]here is clearly no professional standard of care involved in attempting to kick a footrest of the reclining chair to return it to its upright position”).

Here, even though Garcia asserts that the negligence occurred prior to her treatment, the gravamen of her claim is based on the petitioners’ use of the equipment during Garcia’s physical therapy treatment. The basis for Garcia’s claim is that the petitioners negligently administered a treatment modality. Therefore, her injury occurred during medical treatment, and in order to prove her claim, she must prove that the petitioners did not properly maintain their electrical stimulation equipment, which falls within the standard of care involved in treating a patient with that equipment.

This case is also distinguishable from Kurzweil v. Larkin Hospital Operating Co., 684 So.2d 901 (Fla. Sd DCA 1996), on which the trial court relied at the hearing held on the petitioners’ motion to dismiss. In Kurzweil, the court held that the plaintiffs action, which was based on the plaintiffs claim that the defendant was “strictly liable for selling a defective silicone breast prosthesis,” id. at 902, “can no more be characterized as a medical negligence action than if [the plaintiffs] had alleged that the hospital had sold them an unreasonably defective wheelchair,” id. at 902-03. In this case, Garcia did not allege that she was sold a defective product by petitioners.

In Feifer v. Galen of Florida, Inc., 685 So.2d 882, 884 (Fla. 2d DCA 1996), the plaintiff alleged a cause of action against a hospital “based upon allegations of [the hospital’s] negligence in maintaining its premises in a manner to protect its invitees from harm while on the premises.” The plaintiff fell in the hall of the hospital, suffering a broken hip. Id. This court held that chapter 766 “did not abolish ordinary negligence claims against those who may be in the business of providing medical care or services. If a plaintiff can successfully allege factual matters constituting ordinary negligence, he or she is not precluded from doing so.” 685 So.2d at 885.

Here, Garcia cannot show negligence without showing that petitioners were negligent in their medical treatment of Garcia. This case is distinguishable from Feifer because the negligence there did not directly relate to the rendering of medical treatment. The medical negligence standard of care — that the alleged actions of the health care provider presented a breach of the prevailing professional standard of care — must be proved in this case in order for Garcia to obtain relief. Garcia’s claim involves more than just a failure to maintain the premises and the equipment. The fact that injury was caused by the use of the equipment during the rendering of medical treatment takes Garcia’s claim into the realm of a medical negligence claim that is subject to the presuit screening requirement of chapter 766. See Goldman, 662 So.2d at 368.

IV. Conclusion

Accordingly, we conclude that the pre-suit requirements of chapter 766 apply to Garcia’s claim and that the trial court therefore departed from the essential requirements of law in denying the petitioners’ motion to dismiss Garcia’s complaint. We grant the petition for writ of certiorari, quash the trial court’s order denying petitioners’ motion to dismiss, and direct the trial court to grant the petitioners’ motion to dismiss.

Petition granted.

LaROSE, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Betty Curry JOHNSON, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 2D06-1785.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    Betty Curry Johnson, pro se.
    Adrienne C. Rogers, Department of Business and Professional Regulation, Tallahassee, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Betty Johnson challenges the Department of Business and Professional Regulation Construction Industry Licensing Board’s final order, approving her claim for restitution from the Construction Industries Recovery Fund (“the Fund”) in the amount of $7455. We affirm the approval of Ms. Johnson’s claim; however, because the Board’s final order is internally inconsistent, we reverse as to the amount and remand.

Ms. Johnson’s claim under the Fund stems from a construction contract that she entered into with McDurfee Home Improvement, Inc. Pursuant to the contract and subsequent change orders, Ms. Johnson was to pay McDurfee $28,990 to repair and remodel her pool deck. Ms. Johnson paid an initial deposit of $7455 to McDur-fee. After demolishing the existing deck and patio, McDurfee was unable to meet its obligations under the contract. As such, Ms. Johnson was forced to pay another contractor $85,855 to complete the work.

Under the statute, Ms. Johnson is entitled to restitution in an amount not to exceed $25,000, so long as the amount represents “actual or compensatory damages.” See § 489.143(1). In its order, the Board notes that “actual damages” means the completion cost less the contract price, which includes amounts added pursuant to any subsequent change orders. The Board goes on to approve Ms. Johnson’s claim in the amount of $7455, which it notes represents the actual damages “calculated by determining the difference between the original contract price after deducting payments to the original contractor, and the total costs incurred by the Claimant to complete the project.”

While we agree with the Board that, under the statute, Ms. Johnson is entitled to actual damages, we disagree with the Board’s arithmetic. Based on the figures that the Board set out in its final order, the difference between the cost of completion ($35,855) and the contract price less any deposits already paid ($28,990-$7455) equals $14,320.

Accordingly, we affirm the Board’s approval of Ms. Johnson’s claim for restitution from the Fund in an amount equal to her actual damages. However, we reverse the award of only $7455 and remand with directions to enter an award in the amount of $14,320.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and DAVIS, JJ., Concur.

      . § 489.140, Fla. Stat. (2002).

      ^ This amount does not include the $3731.50 in restitution previously awarded to Ms. Johnson by the Board in case no. 2002-004705.


author: ALTENBERND, Judge.

text:
    George W. MOBLEY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 2D06-2335.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    George W. Mobley, pro se.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Respondent.
   ALTENBERND, Judge.

We deny George W. Mobley’s petition for writ of certiorari, which seeks review of the Polk County Circuit Court’s denial of his petition for writ of habeas corpus. Our denial is without prejudice to his right to seek review of his presumptive parole release date in the proper circuit court in Leon County.

Mr. Mobley committed two robberies with a weapon in 1981 when he was seventeen. The weapon was allegedly a toy gun. He was prosecuted as an adult and sentenced to two consecutive ninety-nine-year terms of imprisonment.

After serving sixteen years of his sentence, Mr. Mobley was released on parole in November 1999. In June 2003, he was stopped while driving his car in Hernando County. He was suspected of driving under the influence of alcohol or drugs, but his breath test revealed nothing. Because he was outside Hillsborough County without permission, the Parole Commission issued a warrant for his arrest in July 2003.

Mr. Mobley’s parole was revoked. He is now scheduled to remain in prison until November 2009. Under the standards that apply to such proceedings, neither the trial court nor this court has any authority to give Mr. Mobley relief. See Sheley v. Fla. Parole Comm’n, 720 So.2d 216 (Fla. 1998) (stating that relief can be granted on a petition of certiorari only when there is a denial of procedural due process that departs from the essential requirements of law in such a way as to cause a miscarriage of justice). There were no grounds in the petition for writ of habeas corpus that would have permitted the trial court to order his release. To the extent that Mr. Mobley wishes to challenge his presumptive parole release date, the trial court denied the writ without prejudice to Mr. Mobley’s right to refile that portion of his claim in Leon County. Although the trial court might have been able to transfer that claim to Leon County, we approve the trial court’s order because the petition contained an intermingling of claims and Mr. Mobley would be better served by a new petition in Leon County alleging only the presumptive parole release date issue.

Petition for writ of certiorari denied.

CASANUEVA and VILLANTI, JJ., Concur.


text:
    Thaddeus SIMMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4055.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

      Thaddeus Simms, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Thaddeus Simms (Defendant) appeals the summary denial of his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. The sole issue which he argues on appeal is that the trial court erred in imposing the twenty-five year firearm mandatory minimum pursuant to section 775.087(2), Florida Statutes, where the charging information did not allege that he discharged a firearm, resulting in death or great bodily harm. We affirm in part and reverse in part.

Following a jury trial, Defendant was found guilty of (I) second degree murder with a firearm as to one victim and (II) aggravated battery with a firearm as to a second victim. Evidence was presented that he shot both victims, and the jury’s verdict specifically found that he discharged the firearm, as to both counts. His sentence for each count included the twenty-five year firearm minimum mandatory term of imprisonment pursuant to section 775.087(2).

In the instant motion, Defendant argued that “discharge” of the firearm was not charged with respect to either count. He attached to his motion a copy of the amended information. It charged the following in count I:

That THADDEUS SIMMS ... did unlawfully kill ROGER PEAYY, a human being, by shooting him, said act being imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual and in the commission of said offense did use and have in his possession a revolver, a firearm as defined in Florida Statute 790.001(6), contrary to Florida Statute 782.04(2) and 775.087(1)(2). (LIFE FELONY)

(Emphasis added.) The following was charged in count II:

THADDEUS SIMMS ... while in possession of a firearm, did actually and intentionally touch or strike FREDERICK THOMAS against the will of FREDERICK THOMAS, and in doing so used a revolver, a firearm and deadly weapon, contrary to Florida Statutes 784.045(l)(a)2 and 775.087(2). (2 DEG FEL)

(Emphasis added.)

When it can be determined from the face of the record that the firearm minimum mandatory could not legally be imposed, its imposition may be corrected by a rule 3.800(a) motion. See Bell v. State, 876 So.2d 712 (Fla. 4th DCA 2004); Mobley v. State, 989 So.2d 213 (Fla. 1st DCA 2006); Adams v. State, 916 So.2d 36 (Fla. 2d DCA 2005); Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004).

We find there was no merit to Defendant’s argument as it pertains to the first count, in which he was charged with killing the victim by shooting him with a revolver. See Brazill v. State, 845 So.2d 282 (Fla. 4th DCA 2003) (finding “discharge” of firearm was inherent in jury verdict that defendant carried and fired firearm in committing second degree murder), rev. denied, 876 So.2d 561 (Fla.2004); Amos v. State, 833 So.2d 841, 842 (Fla. 4th DCA 2002) (“Because the information accused Amos of ‘shooting JOHN MILLION with a firearm’ and the verdict specifically refers to the information, and because Amos was convicted of aggravated battery with a firearm, the finding that Amos discharged a weapon is inherent in the jury’s verdict.”). The allegation of discharge of the firearm was inherent in the language of the charging document.

However, the language charging a firearm enhancement as to one count cannot be used to justify the application of the enhancement to a different count. State v. McKinnon, 540 So.2d 111 (Fla.1989), receded from on other grounds by State v. Roberts, 661 So.2d 821 (Fla.1995); Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA 1999).

In response to this court’s order to show cause, the state properly concedes that because no language was included in count II of the amended information charging that Defendant discharged the firearm, he could not legally be sentenced to the twenty-five year mandatory minimum for discharge of a firearm as to that count. See Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002) (reversing imposition of twenty-year mandatory minimum for discharging a firearm during offense because information did not charge that defendant discharged a firearm during commission of the offense, aggravated assault with a firearm, only that he used a deadly weapon in the process of committing the offense; however, allegation was sufficient to place defendant on notice that he was charged subject to three-year mandatory minimum for possession of firearm); Daniel v. State, 935 So.2d 1240 (Fla. 2d DCA 2006) (reversing twenty-five year minimum mandatory sentencing where state failed to allege in information that defendant discharged firearm and that death or great bodily harm resulted; remanding for imposition of ten-year minimum mandatory for possession of firearm during enumerated felony).

Accordingly, the trial court’s order of summary denial is affirmed as to count I, reversed as to count II, and remanded for further proceedings.

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Richard MUCCIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3194.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Richard Muccio, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Muccio appeals the denial of a rule 3.850 motion and an amended motion, and the circuit court’s failure to rule on a second amended post-conviction motion. We affirm and write to address two of the issues raised on appeal.

Appellant filed a timely rule 3.850 motion raising four grounds to withdraw his plea. The State agreed that he was entitled to an evidentiary hearing on at least one claim. The circuit court granted an evidentiary hearing and appointed counsel to represent appellant. Shortly before the evidentiary hearing, appellant filed a pro se amended rule 3.850 motion raising an additional claim.

When the hearing commenced, the trial court addressed the propriety of filing a pro se motion while appellant was represented by counsel. The court informed appellant that he could not represent himself at the same time that he is represented by counsel and that he would have to make a choice whether he wanted the assistance of counsel or whether he wanted to appear pro se. Appellant elected to have counsel. The court informed him that any arguments he made would have to be made through counsel. His attorney adopted the first amended motion, and the trial court bifurcated the evidentiary hearing to consider the amended motion.

After the second portion of the evi-dentiary hearing was concluded, but before the trial court entered its ruling and before the time under rule 3.850(b) expired, appellant filed a second pro se amended rule 3.850 motion raising several additional grounds for relief. The trial court denied the original motion and the first amended motion, but did not address the second amended motion.

We agree with the State that the second amended motion was a nullity because appellant was represented by counsel and counsel did not adopt the motion. See Logan v. State, 846 So.2d 472 (Fla.2003).

We also address the first point raised on appeal and in the original rule 3.850 motion. Appellant alleged that his trial attorney provided ineffective assistance by not moving to dismiss Count II of the information, charging him with failure to return leased property pursuant to section 812.155, Florida Statutes. Appellant argued that he could not be convicted under this statute because the lease agreement did not include the notice required by section 812.155(6), and if he had known this count could have been dismissed, he would not have accepted the State’s plea offer and would have elected to go to trial.

In denying this claim, the court summarized the evidence presented at the hearing and found defendant’s testimony that he would have gone to trial on Count I if Count II had been dismissed not credible. The trial court’s finding is supported by competent substantial evidence. Appellant is a thirteen-time convicted felon and he was facing thirty years in prison as a habitual felony offender for Count I, dealing in stolen property. The State offered appellant á total sentence of fifteen years in prison for all three pending charges, Counts I and II, and a charge for possession of cocaine. The offer was a package deal, but the prosecutor explained that based on appellant’s extensive prior record and the strength of the State’s case on Count I, he would not have offered him less than fifteen years in prison even if he was charged only with Count I. Defense counsel explained in detail why he advised appellant that he did not have a viable defense on Count I. We agree that appellant’s proposed defense to Count I was very unlikely to succeed at trial.

The trial court’s findings are supported by the record. Based on the evidence presented at the evidentiary hearing, appellant was not prejudiced by trial counsel’s failure to move to dismiss Count II.

The circuit court’s order is affirmed.

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


text:
    Candice N. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2659.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.

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

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979). However, the case is remanded to the trial court with directions to strike the words “drug offender” from the order of revocation of probation,

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