author: SUAREZ, J.

text:
    Emily LEFEBVRE and Frederick L. Lefebvre, Jr., Appellants, v. Lynda WEISER, individually, and Lynda Weiser, on behalf of Cleveland Process Corporation, Appellees.
    No. 3D07-1012.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Adrian Philip Thomas, P.A., and Adrian P. Thomas and Jon B. Lindeman, Jr., Fort Lauderdale, for appellants.
    Franklin & Criscuolo and Barry S. Franklin, North Miami Beach, for appel-lees.

      Before GREEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Emily Lefebvre, Frederick L. Lefebvre, Jr., and Lynda Weiser, siblings, are each one-third owners of Cleveland Process Corporation (CPC). Frederick and Emily manage CPC pursuant to a trust set up by their deceased father who founded CPC. Weiser filed a complaint for temporary and permanent injunction, alleging that the Lefebvres’ ongoing mismanagement was causing CPC’s loss of business and profits and loss of employee morale resulting in damage to CPC. Attached to the complaint were affidavits of three longtime employees of CPC who attested to accounting irregularities, financial improprieties, sales tax irregularities, nepotism, the fact that Emily’s alcoholism interfered with her ability to perform her corporate duties, and to Frederick’s willful neglect of corporate duties and the problematic results. The appellants responded with allegations that Weiser failed to follow through on matters related to winding down a separate family trust and selling off related properties, matters unrelated to the issue of CPC’s management. At a lengthy evidentiary hearing, the trial court heard testimony from witnesses for both parties and concluded that, under the circumstances, a temporary injunction was warranted in order to avoid irreparable harm to CPC. We affirm.

The record shows that the trial court did not abuse its discretion in granting the temporary injunction. The trial court’s order recited each of the elements necessary for a temporary injunction to exist: irreparable harm (loss of key employees, who will resign if the company is not protected from the Lefebvres’ mismanagement, and sales tax irregularities, both of which could destroy CPC); clear legal right to the relief sought (breach of fiduciary trust, corporate waste, right to an accounting, tax violations); no adequate remedy at law (viability of CPC is at risk, loss of client goodwill); and that the public interest will not be disserved. See Fountainview Assoc. v. Bell, 214 So.2d 609 (Fla.1968) (holding that public policy requires that in the management of corporate affairs a corporate officer serve first the corporate interests and not his own).

Ordinarily, the proper forum for corporate relief in cases of deviations by officers from their corporate duty is equity. Flight Equip. & Engineering Corp. v. Shelton, 103 So.2d 615 (Fla.1958); Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 144 So. 674 (1932); see also Mills Dev. Co. v. Shipp & Head, 126 Fla. 490, 171 So. 533, 534 (1937) (“Where the property of a corporation is being mismanaged, or is in danger of being lost to the stockholders or judgment creditors through mismanagement, collusion, or fraud of its officers, a court of equity has inherent power to entertain a complaint for the redress of such wrong....”). The temporary injunction and its legal conclusions are provisional — • the issues will be sorted out at length in the legal causes of action to follow; the temporary injunction acts to immediately prevent the siblings from actively or negligently allowing the company and its resources to be totally dissipated while the subsequent legal action is being litigated. The temporary injunction effectively removes the defendants from their management duties at the company, and neither Weiser nor the Lefebvres will draw salary until the underlying causes of action are resolved. The order further provides that the day-to-day operations are now placed in the apparently competent hands of the remaining employees.

As the appellants have not shown any clear abuse of discretion in this record, we affirm.


source: Caselaw Access Project

author: ROTHENBERG, Judge.

license: Public Domain

text:
    Adam E. MINCHUK, Jr. and Mary Minchuk, Appellants, v. Manuel REYES, Merle Reyes and Mayda Rodriguez, Appellees.
    No. 3D06-2625.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Damian & Valori and Peter F. Valori, Miami, for appellants.
    Alvarez, Almazan & Rodriguez and Benjamin R. Alvarez, Miami, for appellees.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendants, Adam E. Minchuk, Jr. and Mary Minchuk (collectively “the defendants”), appeal from a non-final order denying their motion to dismiss for lack of personal jurisdiction. We reverse and remand for an evidentiary hearing.

Manuel Reyes, Merle Reyes, and Mayda Rodriguez (collectively “the plaintiffs”) filed suit against the defendants, asserting that they committed a tortious and malicious act in Miami-Dade County. The defendants filed a motion to dismiss for lack of personal jurisdiction. In support of their motion, the defendants filed sworn statements, asserting that they reside in Illinois; that they have not engaged in any conduct in Florida that would subject them to personal jurisdiction in Florida; that they did not engage in the improper acts alleged in the complaint in Florida; and that they had no involvement in the actions alleged in the complaint. In response, the plaintiffs filed a counter-affidavit, which was in direct conflict with the defendants’ sworn statements.

After conducting a non-evidentiary hearing, the trial court denied the defendants’ motion to dismiss, finding that the allegations in the complaint were sufficient to establish personal jurisdiction over the defendants. The defendants’ non-final appeal followed.

We review the trial court’s order denying the defendants’ motion to dismiss for lack of personal jurisdiction de novo. See Bohlander v. Robert Dean & Assocs. Yacht Brokerage, Inc., 920 So.2d 1226, 1228 (Fla. 3d DCA 2006). First, we agree with the trial court’s conclusion that the jurisdictional allegations in the verified complaint were sufficient to bring the action within Florida’s long-arm statute, section 48.193, Florida Statutes (2006), and that the complaint alleges sufficient minimum contacts between the defendants and Florida to satisfy due process requirements. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).

However, we find that the trial court erred by failing to hold a limited eviden-tiary hearing on the issue of jurisdiction. In the instant case, the defendants filed sworn statements to contest the jurisdictional allegations of the complaint and to raise a contention of insufficient minimum contacts. Thereafter, the plaintiffs filed a counter-affidavit to support their basis for personal jurisdiction over the defendants. A review of the relevant facts averred in the defendants’ sworn statements and the plaintiffs’ counter-affidavit indicates that they are in direct conflict. Thus, the trial court was required to hold a limited evi-dentiary hearing to resolve the conflicts pertaining to jurisdiction. See Doe v. Thompson, 620 So.2d 1004, 1005 (Fla.1993) (“[A] defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of insufficient minimum contacts must file an affidavit in support of his or her position. The burden is then placed upon the plaintiff to show by counter-affidavit the basis upon which jurisdiction is obtained. If relevant facts set forth in the respective affidavits are in direct conflict, then the trial judge should hold a limited evidentia-ry hearing on the issue of jurisdiction.”).

Reversed and remanded for an eviden-tiary hearing.


author: POLEN, J.

text:
    Rita SANTOS, Appellant, v. KNIGHT-RIDDER, INC., The Miami Herald Publishing Co., Jose A. Santos, Sackatoga Stable, a Kentucky partnership, and Funny Cide Ventures, LLC, a New York Limited Liability Company, Appellees.
    No. 4D06-4919.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Sanford L. Bohrer and Scott D. Ponce of Holland & Knight LLP, Miami, for appel-lees Knight-Ridder, Inc., and The Miami Herald Publishing Co.
   POLEN, J.

Appellant Rita Santos appeals the trial court’s grant of partial summary judgment in favor of Appellees, Knight-Ridder, Inc. and the Miami Herald Publishing Co., disposing of her loss of consortium claim in the ongoing case. Rita Santos is the wife of Jose Santos, the jockey who rode Funny Cide in the 2003 racing season. In May of 2003, following Funny Cide’s win at the Kentucky Derby, Appel-lees published an article reporting that Jose admitted to carrying an object in his hand during the Kentucky Derby ride. See Funny Cide Ventures LLC v. Miami Herald Pub. Co., 955 So.2d 1241, 1242 (Fla. 4th DCA 2007). Jose and Rita filed a complaint against Appellees and one of the counts alleged that Rita had suffered a loss of consortium due to Appellees’ actions. The trial court found that Rita’s claim was unsupported by Rita’s deposition and the submitted affidavits, and granted Appellees’ partial summary judgment motion. We reverse the trial court’s grant of partial summary judgment.

Summary judgment is proper only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Where no genuine issue of material fact is shown to exist, the only question for the appellate court is whether the summary judgment was properly granted under the law. If even the slightest doubt exists as to any issue of material fact, a summary judgment must be reversed.

Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th DCA 2001) (Per Curiam) (internal citations omitted). “In reviewing a trial court’s decision to grant a motion for summary judgment, the appellate court ‘must draw every possible inference in favor of the party against whom summary judgment is granted.’ ” Ribak v. Centex Real Estate Corp., 702 So.2d 1316, 1317 (Fla. 4th DCA 1997) (quoting DuBois v. Amestoy, 652 So.2d 919, 920 (Fla. 4th DCA 1995)).

A review of Rita’s testimony and affidavits indicates that the main effect of the allegedly false allegations against Jose was increased tension and fighting in their marriage. There was disputed evidence as to how long those problems continued after the publication of the article. Appel-lees asserted these allegations are insufficient to allow the loss of consortium claim to withstand summary judgment. We disagree.

“Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.” Gates v. Foley, 247 So.2d 40, 43 (Fla.1971). Regardless of how “thin” the allegations of loss of consortium may have been, we hold there are material issues of fact as to whether Rita’s allegations support a claim for loss of consortium, issues that should be decided by a jury.

We find the trial court erred in disposing of Rita’s claim by way of partial summary judgment and reverse.

KLEIN and MAY, JJ., concur.


author: PER CURIAM.

text:
    Derrick GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2834.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.
    Denick Gibson, Bowling Green, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Derrick Gibson, appeals the trial court order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he challenged his sentencing as a prison releasee reoffender (PRR). He alleged that he did not qualify for that designation because he did not commit the strong arm robbery, for which he was convicted and sentenced in 1999, within three years of being released from a correctional facility as per section 775.082(9)(a)l, Florida Statutes. He claimed he was released from the prison term of his last conviction and then placed on control release in August 1990, and the court erroneously imposed PRR sentencing in this case based on his release from temporary detention in 1997.

In Gibson v. State, 944 So.2d 426 (Fla. 4th DCA 2006), this court earlier held that case law supported Gibson’s challenge, citing Wencel v. State, 915 So.2d 1270 (Fla. 4th DCA 2005), and Brinson v. State, 851 So.2d 815 (Fla. 2d DCA 2003). We reversed the trial court’s summary denial of his motion and remanded for the trial court to consider the claim and to consider, as part of the record on remand, the records of the Department of Corrections and Parole Release Commission.

On remand, the trial court summarily denied Gibson’s motion once more, this time based on a state response which attached a document entitled “Inmate Movement Transfer History” showing Gibson’s movement among state facilities, without reference to the case or circumstances, and a printout on the bottom half of the document showing Gibson’s loss of gain time in 1989 for being an “absconder,” and later in 1990, with the reason stated as “revoked.” Also, the state attached a copy of a “Corrections Offender Network Department of Corrections” printout, showing Gibson’s custody from March 20, 1997 to December 31, 1997, without reference to any case numbers.

The printout from the DOC offender network “does not constitute a portion of the files and record” in this case so as to satisfy rule 3.800. Cf. McIntyre v. State, 844 So.2d 679, 680 (Fla. 4th DCA 2003). Neither does the “Inmate Movement/Transfer History” offered by the state in its response filed below satisfy the rule. Nothing presented to the trial court to date has adequately refuted Gibson’s claim that his last release was from temporary detention.

We reverse and remand for further proceedings. On remand, the trial court should grant relief if it cannot locate record evidence to refute Gibson’s claim.

Reversed and remanded.

STONE, GROSS and MAY, JJ., concur.


text:
    Richard AMANN, Petitioner, v. Ric L. BRADSHAW, Sheriff of Palm Beach County, and Shauna Amann, Respondents.
    No. 4D07-4135.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2007.

      Andrew E. Pastor of Andrew E. Pastor, P.A., Palm Beach Gardens, for petitioner.
    Matthew S. Nugent of the Law Office of Matthew S. Nugent, North Palm Beach, for respondent Shauna Tamoney Amann.
   PER CURIAM.

The petition for wilt of habeas corpus is granted. The order finding the former husband in civil contempt and ordering him taken into custody fails to comply with the requirements of Florida Family Law Rule of Procedure 12.615(d)(1). Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002). Petitioner shall be immediately released from incarceration. Hayden v. Bieluch, 878 So.2d 1270 (Fla. 4th DCA 2004).

STONE, WARNER and GROSS, JJ., concur.


text:
    Orlando CANETE, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D07-2505.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.

      Orlando Cañete, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

By petition for writ of certiorari, Orlando Cañete seeks review of an order of the circuit court denying his amended petition for writ of mandamus, by which he sought an order directing the Department of Corrections (“DOC”) to restore 800 days of jail credit awarded to him by his sentencing court. The circuit court denied relief on procedural grounds, finding that Canete’s claim was barred by the statute of limitations, and substantive grounds, finding that on the merits, he had nonetheless failed to demonstrate an entitlement to mandamus relief. In accordance with Whisner v. Moore, 825 So.2d 420 (Fla. 1st DCA 2002), we treat this proceeding as an appeal, although we apply the higher cer-tiorari standard of review to the portion of the order denying relief on the merits. Concluding that the circuit court erred in finding that Canete’s claim was barred by the statute of limitations and departed from the essential requirements of law in denying mandamus relief on the merits, we reverse.

In July 2003, Cañete was sentenced by the Broward County Circuit Court to three consecutive terms of imprisonment. The written judgment and sentence awarded Cañete 400 days of credit for jail time on each count. In its initial calculation of Canete’s tentative release date, DOC applied a total of 1,200 days’ credit for time served against the overall sentence imposed for the three counts. In December 2003, Cañete received notice of his gain-time award for the month of November 2003, reflecting the application of 10 days of incentive gain-time, and showing that his tentative release date (“TRD”) at that time was February 22, 2035. Cañete received notice of his gain-time award for December 2003 on January 15, 2004. This document reflected that Cañete had again been awarded 10 days of incentive gain-time, but reflected that his TRD was now April 22, 2037, equating to a 790-day extension of the previously reported TRD.

Cañete filed an informal grievance in August 2006, asserting that the sentencing court had awarded him 1,200 days of jail credit, but that DOC had somehow taken away 800 days. Canete’s informal grievance was denied with the explanation that although he was originally credited with 400 days of jail time on each count, the sentencing judge then sent a memo to DOC clarifying that her intent was to award a total of only 400 days. Cañete thereafter filed a formal grievance with the warden, which was likewise denied. He then filed an administrative appeal to the Office of the DOC Secretary in August 2006, and when he did not receive a response, he filed his petition for writ of mandamus in the circuit court in November 2006. Therein, he sought an order compelling DOC to apply the full 1,200 days of jail credit awarded to him, arguing that DOC had failed to show that the sentencing court had lawfully modified his sentence.

The circuit court initially dismissed Can-ete’s petition without prejudice, finding that he had failed to conclusively demonstrate that all administrative remedies had been exhausted, and allowed Cañete 30 days to serve an amended petition adequately demonstrating exhaustion. Cañ-ete thereafter filed a timely amended petition in January 2007, and the circuit court issued an order to show cause. DOC responded, explaining that because it was uncertain whether the sentencing court intended for the 400 days of jail credit to be applied to each count or to the sentence as a whole, it sent a letter to the State Attorney’s Office in December 2003, with a copy to the sentencing judge, requesting clarification. Shortly thereafter, DOC received from the sentencing judge a letter indicating that it was the court’s intent not to award 400 days of time served on each count. DOC therefore structured Can-ete’s sentence accordingly, applying 400 days of credit only to Count I. In response to the request for mandamus relief, DOC argued that because Cañete acknowledged that he became aware of the change in his TRD in January 2004, his claim was untimely under section 95.11(5)(f), Florida Statutes. DOC further argued that Cañete had otherwise failed to demonstrate an entitlement to mandamus relief because the Department had applied jail credit in accordance with the express directions of the sentencing judge.

Following the filing of Canete’s reply, the circuit court denied the amended petition for writ of mandamus, agreeing with DOC that the claim was barred by section 95.11(5)(f), and that in any event, Cañete had failed to demonstrate the existence of a ministerial duty on the part of DOC to apply the disputed 800 days of jail credit. In the latter regard, the circuit court reasoned that DOC is obligated to interpret sentencing orders in a manner consistent with the law, and the sentencing judge’s letter constituted a clear directive that was consistent with Florida law governing the application of jail credit to consecutive sentences.

With regard to the statute of limitations issue, both parties acknowledge that section 95.11(5)(f) is applicable to this case. The issue, then, is when Canete’s cause of action accrued for purposes of commencing the running of the one-year limitation. As DOC correctly notes, section 95.031, Florida Statutes, provides in general terms that a cause of action accrues when the last element constituting the cause of action occurs. Case law recognizes, however, that a cause of action cannot be said to have accrued for purposes of the statute of limitations until an action may be brought. See, e.g., State Farm Mut. Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla.1996); New York State, Dep’t of Taxation v. Patafio, 829 So.2d 314 (Fla. 5th DCA 2002). Canete’s mandamus claim in the circuit court essentially sought review of an administrative determination of DOC rejecting his grievances relating to the disputed jail credit, and his cause of action cannot be deemed to have accrued until the administrative grievance process was exhausted. In its order dismissing Canete’s initial petition without prejudice, the circuit court observed that “[t]he exhaustion of administrative remedies is a necessary prerequisite to seeking judicial review.” The correctness of this statement is made manifest by the substantial body of case law holding that before seeking extraordinary writ relief in a situation such as this, an inmate dissatisfied with an administrative action of DOC is required to exhaust available administrative remedies. See, e.g., Pugh v. State, 954 So.2d 1254 (Fla. 4th DCA 2007); Borroto v. State, 943 So.2d 240 (Fla. 3d DCA 2006); Thomas v. State, 828 So.2d 1045 (Fla. 4th DCA 2002); Verrone v. State, 797 So.2d 613 (Fla. 1st DCA 2001); Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001). In short, Canete’s claim for mandamus relief did not become ripe for judicial review until the administrative grievance process was exhausted, and because he invoked the circuit court’s jurisdiction well within one year of that date, his claim was not barred by section 95.11(5)(f).

On the merits, we conclude that DOC lacked authority to alter the sentences as imposed by the sentencing court, despite the trial court’s “clarifying” letter. As the circuit court observed, a defendant who is convicted of multiple offenses and sentenced to consecutive terms of imprisonment must be given presentence jail credit only on the first of the consecutive sentences. See Daniels v. State, 491 So.2d 543 (Fla.1986); Barnishin v. State, 927 So.2d 68 (Fla. 1st DCA 2006). Nonetheless, although the sentencing court is required to award jail credit on only one of the consecutive sentences, the award of anything further remains within the discretion of the court. See Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007). In other words, even though a defendant is not strictly entitled to jail credit against each term when he receives consecutive prison sentences on multiple charges, such an award is permissible and does not render the sentence “illegal.” See King v. State, 913 So.2d 758 (Fla. 2d DCA 2005); Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997).

Because the sentences imposed on Cañ-ete were neither ambiguous with respect to the awards of jail credit or even arguably “illegal,” DOC had no call to seek “clarification” of those sentences, nor did it have authority to modify the sentences based on the sentencing judge’s letter. Although it arose in a different procedural context, the decision in Fuston v. State, 838 So.2d 1205 (Fla. 2d DCA 2003), is instructive in this regard. In Fuston, DOC sent a letter to the sentencing court claiming that it had failed to impose certain minimum mandatory terms that were required by law. Upon receipt of the letter, the sentencing court held another sentencing hearing and imposed the minimum mandatory terms. The Second District reversed the denial of Fuston’s postconviction motion challenging the new sentences, and in addressing DOC’s role in the matter, observed the following:

We are aware that the Department regularly sends such letters to the trial courts. The Department often receives confusing sentencing documents, and it undoubtedly has the authority to request clarification of those sentences in order to assure that it does not keep a prisoner longer than the time specified in the sentence. Moreover, the Department has considerable expertise in sentencing and can often alert a trial judge to the existence of an illegal sentence. On the other hand, we know of no power given to the Department to reverse a sentence, or to disobey a sentence, when it is not ambiguous. The Department has no authority to impose a more onerous sentence upon a prisoner than the sentence actually imposed by the trial court. If the State believes a sentence is erroneous, it is obligated to preserve this issue and appeal it to an appropriate appellate court. Otherwise, the sentence imposed by the court stands, and the Department must comply with that sentence.

Id. at 1207.

Because the sentences imposed on Cañete were unambiguous concerning the award of jail credit, DOC’s ministerial duty is to implement those sentences as written. See Pearson v. Moore, 767 So.2d 1235 (Fla. 1st DCA 2000), approved, 789 So.2d 316 (Fla.2001). In the absence of a facially valid order of the sentencing court modifying the terms of a sentence, a sentencing judge’s letter expressing an intent that is at odds with the unambiguous provisions of the written sentence does not give rise to authority on the part of DOC to modify those unambiguous provisions. If there is an error in the sentence, it is the obligation of the state to preserve that issue and appeal it to the appropriate appellate court, or if the error renders the sentence “illegal,” to seek relief under rule 3.800(a).

On the basis of the foregoing, the order of the circuit court denying Canete’s amended petition for -writ of mandamus is REVERSED, and the matter is REMANDED for further proceedings consistent herewith.

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.

      . DOC's administrative rale provides that appeals to the DOC Secretary shall be responded to within 30 days of receipt. The rule authorizes extensions of time, but provides that if the inmate does not agree to an extension, “he shall be entitled to proceed with judicial remedies as he would have exhausted his administrative remedies.” See Fla. Admin. Code R. 33-103.011(3) and (4). DOC acknowledged in the circuit court that Cañete had exhausted his administrative remedies.

      . Section 95.11 (5)(f) provides that except for actions challenging prison disciplinary proceedings, “a petition for extraordinary writ, other than a petition challenging a criminal conviction, filed by or on behalf of a prisoner” must be brought within one year.

      . A particularly notable case in this regard is Cunningham v. State, 932 So.2d 1202 (Fla. 4th DCA 2006). Like Cañete, Cunningham’s written sentence awarded him equal amounts of jail credit against consecutive sentences. Acting on the purported authority of a letter from the sentencing judge indicating that the credit should be applied only once, DOC removed the credit from the second of Cunningham’s two consecutive sentences. Cunningham raised his complaint through a rule 3.800(a) motion, but the Fourth District concluded that his proper remedy was to seek mandamus relief against DOC. In so doing, the court noted that “Cunningham must pursue and exhaust his administrative remedies before returning to the circuit court.” Id. at 1204.

      . Although we recognize that review of the sentencing court's letter itself is not within the scope of our jurisdiction, it is clear that even leaving aside the due process concerns inherent in attempting to adversely modify a defendant's sentence outside his presence, without notice, and without issuing any sort of appealable order, the sentencing court was without authority to purport to rescind the jail credits it had awarded to Cañete, even if that award was unintentional. See Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004).


author: VAN NORTWICK, J.

text:
    Andrew WIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5879.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Trisha Meggs Pate, Sheron L. Wells, and Charlie McCoy, Assistant Attorneys General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Following his conviction for two counts of possession of cocaine, sale of cocaine, and possession of paraphernalia, Andrew Wiggins appeals the dual convictions for possession of cocaine arguing that the two convictions for the possession of a single quantity of cocaine constitute double jeopardy. We agree and reverse and remand for further proceedings.

Appellant was arrested as a result of an undercover purchase by the police. Appellant had a single quantum of cocaine from which he removed a portion and sold that portion to police. Below, as well as on appeal, the State asserts that two counts of possession can be charged on these facts. One charge pertains to the possession of the original quantum, while the second charge pertains to that same quantum less the amount sold to police. The trial court denied the motion for acquittal made below on the ground of double jeopardy.

In McGlorthon v. State, 908 So.2d 554 (Fla. 2nd DCA 2005), the reviewing court reversed one of two convictions for possession of cocaine, one of which was premised on the possession of two pieces of cocaine sold to an undercover police officer while the other was premised on the possession of six pieces of cocaine that the defendant possessed after the sale. All eight pieces of cocaine were contained in the same storage container prior to the undercover sale. In finding a double jeopardy violation, the Second District noted that it “fail[ed] to see how there can be a legal distinction between the produce leaving the peddler’s hand or in his pocket and that still on the push cart.” 908 So.2d at 556 (quoting Jackson v. State, 418 So.2d 456, 458 (Fla. 4th DCA 1982)); see also Godfrey v. State, 947 So.2d 565 (Fla. 1st DCA 2006)(holding that a conviction for possession of crack cocaine and another conviction for possession of powder cocaine constituted double jeopardy); Gibbs v. State, 698 So.2d 1206 (Fla.1997)(holding that dual convictions for trafficking possession and simple possession could not stand where the same quantum of cocaine was the basis for each offense); Robinson v. State, 901 So.2d 1027, 1027-29 (Fla. 4th DCA 2005)(holding that defendant’s convictions for trafficking possession and simple possession could not stand where defendant dropped a bag of cocaine while fleeing and where police found other baggies of cocaine following a search incident to arrest); Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992)(hold-ing that double jeopardy clause prohibited convictions for trafficking in cocaine found in one container and possessing cocaine found in another). As the Lundy court explained,

to hold that a separate possessory crime is committed for each packet or package of the controlled substance within an offender’s possession at a given time and place goes well beyond the statutory elements of the crime. To allow such an arrest would lead to absurd scenarios, including the state’s charging more counts for the same amount of narcotics only due to the increased number of small packages of that illegal substance.

596 So.2d at 1168.

Accordingly, appellant’s conviction and sentence as to one count of possession of cocaine is reversed. The remaining convictions and sentences are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

BROWNING, C.J., and ALLEN, J., concur.

      . While the Fourth District receded from Lun-dy in Gibbs v. State, 676 So.2d 1001 (Fla. 4th DCA 1996), the Florida Supreme Court thereafter quashed the Fourth District's decision in Gibbs. ' See Gibbs v. State, 698 So.2d 1206 (Fla.1997).


author: BROWNING, C.J.

text:
    Albert James WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1886.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public De-. fender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant seeks review of his conviction for sexual battery, and raises several issues on appeal. We affirm the trial judge’s denial of Appellant’s motion for judgment of acquittal, but reverse on the ground that the jury should not have been instructed on the theory of principals, and we remand for a new trial. In light of this result, we do not address the other issues on appeal.

Appellant was essentially accused of “acquaintance rape”; however, another male was with Appellant in the victim’s apartment on the evening in question, and that person was tried in a separate proceeding. In the instant proceeding, the State requested that the jury be given the principals instruction, and the trial court gave the instruction over Appellant’s objection. However, the record does not support the giving of the instruction because there was no evidence that Appellant both had a conscious intent that the crime be done, and also did an act or said a word intended to (and which did) incite the co-defendant to commit the crime. See Fla. Std. Jury Instr. (Crim.) 3.5(a). Appellant’s mere presence at the crime scene during overlapping intervals, without more, does not justify a principals instruction. See Shuler v. State, 801 So.2d 1055 (Fla. 1st DCA 2001). The error is not harmless because the verdict does not reveal whether the jury relied on the principals theory to convict Appellant, and because the instruction was likely to cause confusion in light of the State’s emphasis in closing argument that Appellant was “as guilty as” the co-defendant for everything the co-defendant did.

REVERSED and REMANDED.

ALLEN and VAN NORTWICK, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE COMPANY, Appellant, v. Herbert J. ASHE, Appellee.
    No. 1D06-6506.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville; John A. Unzicker, Jr., and Michelle L. Hendrix of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellant.
    Steven J. Baker of Steven J. Baker, P.A., Pensacola, for Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. James E. ELBERT and Bonnie Elbert, Husband and Wife, Appellee.
    No. 1D06-6742.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville; John A. Unzicker, Jr., and Michelle L. Hendrix of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellant.
    Stephanie A. Taylor of Taylor, Warren & Weidner, P.A., Pensacola, for Appellees.
   PER CURIAM.

REVERSED and REMANDED. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


text:
    T.L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1410.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

T.L., a juvenile, was convicted of the criminal offense of grand theft auto. T.L. appeals a restitution order requiring him to pay the owner of the vehicle for damages the vehicle sustained during the theft.

A juvenile is entitled to be present at a restitution hearing unless he waives that right. See J.B. v. State, 646 So.2d 808, 808 (Fla. 1st DCA 1994); Fla. R. Juv. P. 8.100 (2005). In J.B., this Court reversed the trial court’s restitution order because the juvenile was not present during the restitution hearing and there was no competent, substantial evidence that the juvenile effectively waived his right to appear at the hearing. 646 So.2d at 808. J.B. controls in this case. Because T.L. was not present at the hearing and there is no competent, substantial evidence on the record indicating that he waived his right to be present, we reverse the restitution order. As such, we conclude that it is unnecessary to reach T.L.’s other arguments.

We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing.

REVERSED and REMANDED, with directions.

DAVIS, LEWIS and ROBERTS, JJ., concur.


text:
    Douglas Wayne HITCHCOCK, Appellant, v. Lisa Ann HITCHCOCK, Appellee.
    No. 1D07-2178.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    Tara S. Rosenblum, Quincy, and Scott T. Manion and Gigi Rollini, Tallahassee, for Appellant.
    ' No appearance for Appellee.
   PER CURIAM.

The appellant brought this appeal seeking review of an Order, entered on March 27, 2007, and an Order Denying Motion for Reconsideration, entered on April 5, 2007, that denied the appellant’s motions to review and reconsider the proposed payment plan established by the Clerk of Circuit Court pursuant to Sections 57.082(5) and 28.246(4), Florida Statutes. Because these are not final orders or appealable nonfinal orders pursuant to Florida Rule of Appellate Procedure 9.130, this appeal is hereby DISMISSED for lack of jurisdiction. See generally Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000) (dismissing appeal of order denying request to proceed as indigent and holding that order is not reviewable by petition for writ of certiorari); Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing appeal of interlocutory order granting indigency status and imposing a lien on a prisoner’s trust account for. payment of court costs and fees). The appellant’s motion to consolidate, filed on July 26, 2007, is denied as moot.

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


text:
    Stephen CROSSLAND, as Personal Representative of the Estate of Barbara Ann Crossland, Appellant, v. MARCOBAY CONSTRUCTION, INC., a Florida corporation, Arthur Fox, an individual, Drew Brady, an individual, and Stephen Cowperthwaite, an individual, Appellees.
    No. 1D07-4567.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    Michael P. Moran and Renee Daigle Harrell of Harrell & Harrell, P. A., Jacksonville, for Appellant.
    William M. Corley of Marks Gray, P.A., Jacksonville, for Appellees Marcobay Construction, Inc., Drew Brady, and Stephen Cowperthwaite; and Deborah Halvorsen of O’Hara Law Firm, P.A., Jacksonville, for Appellee Arthur Fox.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 24, 2007, the Court has determined that it lacks jurisdiction to review the order on appeal. The appellant has sought review of an Order on Defendants Drew Brady and Stephen Cowperthwaite’s Motion for Final Summary Judgment. However, because the order merely grants a motion for summai’y judgment and fails to actually enter judgment, it is not a final appealable order. See Hickox v. Taylor, 933 So.2d 675 (Fla. 1st DCA 2006). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

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


text:
    Rolando SERRANO, Appellant, v. CITY OF TAMPA CITY CLAIMS, Commercial Risk, Appellees.
    No. 1D07-0778.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    William H. McKnight of William H. McKnight, P.A., Tampa, for Appellant.
    L. Gray Sanders, Assistant City Attorney, Tampa, for Appellees.
   PER CURIAM.

Rolando Serrano, a workers’ compensation claimant, appeals the amount of attorney’s fees awarded by the judge of compensation claims below. We conclude that the judge of compensation claims correctly based the amount of attorney’s fees on Serrano’s medical bills paid by the City of Tampa, the employer/servicing agent, which represented the “benefits secured” to Serrano pursuant to section 440.34(1), Florida Statutes (2003). However, the judge of compensation claims miscalculated the total amount of fees paid by the City of Tampa. We remand with instructions to the judge of compensation claims to award Serrano attorney’s fees totaling $9,433.13, based on the application of the formula provided in section 440.34(1), Florida Statutes (2003).

Reversed and remanded with directions.

BROWNING, C.J., BARFIELD, and BENTON, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE COMPANY, Appellant, v. Edward W. PARKER, Appellee.
    No. 1D06-6452.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville; John A. Unzicker, Jr., and Michelle L. Hendrix of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Appellant.
    Thomas F. Gonzalez of Beggs & Lane, Pensacola, for Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815, 2007 WL 2727072 (Fla. Sept. 20, 2007).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


text:
    Sherman Lavell HINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2101.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Sherman Lavell Hinson, pro se, Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising three grounds for relief. We affirm the trial court’s denial of grounds two and three. We affirm the trial court’s amended judgment and sentence in response to ground one of appellant’s motion to the extent that it amended the sentence for count three to 11 months, 29 days in jail. However, we remand for the trial court to strike the appellant’s HFO designation on count three. See §§ 790.27(2)(b), Fla. Stat. (1995) (possession of a firearm with altered serial number is a first-degree misdemeanor); 775.084(1)(a) (restricting HFO sentences to defendants convicted of felonies); Hampton v. State, 711 So.2d 200 (Fla. 5th DCA 1998). The appellant’s presence is not required. See O’Neal v. State, 862 So.2d 91 (Fla. 2d DCA 2003).

AFFIRMED in part and REMANDED in part with directions.

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Robert ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3744.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Robert Adams, pro se, Petitioner.

      Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the lower tribunal’s “Order Vacating Judgment and Sentence as to Count III and Dismissing Count III,” rendered on or about December 8, 2006, in Suwannee County Circuit Court case number 98-054CF, is granted. The belated appeal shall proceed under case number 1D07-2405.

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


text:
    Harvey A. DESILETS, Appellant, v. Barbara J. LORBERG, Appellee.
    No. 1D07-4486.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Harvey A. Desilets, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Because appellant has failed to demonstrate that his notice of appeal was timely filed following rendition of the order of the lower tribunal for which review is sought, we dismiss the appeal for lack of jurisdiction. All pending motions are denied as moot.

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


text:
    I.Z., the Mother, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D07-1754.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Rehearing Denied Nov. 28, 2007.

      I.Z., Hallandale, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children & Families.
    Patricia M. Propheter, Orlando, for ap-pellee Guardian Ad Litem Program.
   POLEN, J.

Appellant I.Z., the mother, appeals the trial court’s final order terminating Appel-lee’s, the Department of Children and Families (DCF), protective supervision and placing S.F., the child, in a permanent guardianship. This termination follows a long history of DCF involvement with I.Z. and the minor child. Following the recommendation of the general magistrate, the trial court determined that I.Z. had not substantially complied with the case plan given her by DCF and that permanent placement was in the child’s best interest, while still allowing I.Z. to have supervised visitation with the child. We affirm the trial court’s holding.

Section 39.6221, Florida Statutes, controls the placement of a child in a permanent guardianship, and provides as follows:

(1) If a court determines that reunification or adoption is not in the best interest of the child, the court may place the child in a permanent guardianship with a relative or other adult approved by the court if all of the following conditions are met:
(a) The child has been in the placement for not less than the preceding 6 months.
(b) The permanent guardian is suitable and able to provide a safe and permanent home for the child.
(c) The court determines that the child and the relative or other adult are not likely to need supervision or services of the department to ensure the stability of the permanent guardianship.
(d) The permanent guardian has made a commitment to provide for the child until the child reaches the age of majority and to prepare the child for adulthood and independence.
(e) The permanent guardian agrees to give notice of any change in his or her residential address or the residence of the child by filing a written document in the dependency file of the child with the clerk of the court.
(2) In its written order establishing a permanent guardianship, the court shall:
(a) List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudi-' eating the child dependent or by making separate findings of fact;
(b) State the reasons why a permanent guardianship is being established instead of adoption;
(c) Specify the frequency and nature of visitation or contact between the child and his or her parents;
(d) Specify the frequency and nature of visitation or contact between' the child and his or her grandparents, under s. 39.509;
(e) Specify the frequency and nature of visitation or contact between the child and his or her siblings; and
(f) Require that the permanent guardian not return the child to the physical care and custody of the person from whom the child was removed without the approval of the court.

§ 39.6221(1) and (2), Fla. Stat. Once permanent guardianship has been established, the trial court shall “relieve [DCF] of the responsibility for supervising the placement of the child.” § 39.6221(5), Fla. Stat. In determining whether the trial court erred in placing the child in a permanent guardianship and in terminating protective supervision, this court looks at whether the statutory factors detailed above have been met. See J.H. v. Dep’t of Children and Families, 924 So.2d 965, 966 (Fla. 4th DCA 2006).

In the final order granting DCF’s motion to place the child in permanent guardianship and terminating protective supervision, the trial court determined that all the factors listed above had been met. Further, the trial court detailed that “[rjeasonable efforts were made to prevent, or eliminate the need for removal of the child from the home by the Department,” but that “[rjeunification with the parents at this time would be contrary to the welfare and not in the best interests of the child” as the parents had not benefited from DCF’s services nor substantially complied with their case plans. The trial court detailed why permanent guardianship was in the child’s best interest, stating: “[A]ll parties agree that the parent(s) should be able to maintain some contact with the child.” The trial court also detailed the desired frequency of I.Z.’s contact with the child.

We find the trial court’s order met the statutory requirements for terminating protective supervision and for placing the child in a permanent guardianship. Further, we find the trial court’s determination that I.Z. had not substantially complied with her case plan is supported by competent substantial evidence. See B.L. v. Dep’t of Children and Families, 950 So.2d 1264, 1265 (Fla. 5th DCA 2007).

We affirm.

KLEIN and MAY, JJ., concur.


author: SHAHOOD, C.J.

text:
    STRANAHAN HOUSE, INC., and Friends of the Park at Stranahan House, Inc., Appellants, v. CITY OF FORT LAUDERDALE, a Florida Municipal Corporation, and Coolidge-South Markets Equities, L.P., a Delaware Limited Partnership, Appellees.
    No. 4D06-4230.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.

      W. Tucker Gibbs of W. Tucker Gibbs, P.A., Coconut Grove, for appellants.
    Alain E. Boileau and Robert H. Schwartz of Adorno & Yoss LLP, Fort Lauderdale, for appellee City of Fort Lauderdale.
    Helaina Bardunias and Robert S. Haek-leman of Gunster, Yoakley & Stewart, P.A., Fort Lauderdale, and Brigham Moore, LLP, Miami, for appellee Coolidge-South Markets Equities, L.P.
   SHAHOOD, C.J.

Stranahan House, Inc., and Friends of the Park at Stranahan House, Inc. (“Friends”)(colleetively “Stranahan”) appeal the trial court’s final order in favor of the City of Fort Lauderdale (“City”) and Coolidge-South Markets Equities, L.P. (“Coolidge”). The order dismissed Strana-han’s complaint for declaratory judgment and injunctive relief. We hold that the trial court erred in finding that it had previously adjudicated the issues raised in Stranahan’s complaint. We also hold that Stranahan has standing to maintain the present suit. We therefore reverse and remand.

This suit arises from Coolidge’s attempt to develop a downtown Fort Lauderdale property known as the Hyde Park Market site, located at 500 East Las Olas Boulevard. The property lies adjacent to the Stranahan House on the north bank of the New River. The Stranahan House is a historic museum that is the former home of Frank and Ivy Stranahan. The Strana-hans were wealthy traders, philanthropists, and civic leaders, and are often referred to as the “founding family” of Fort Lauderdale.

The Fort Lauderdale Historical Society purchased the Stranahan House in 1975. The City designated it a Historic District the same year. The Stranahan House is zoned as an H-l Historic Preservation District under the Unified Land Development Regulations (“ULDRs”). However, the adjacent Hyde Park Market site was not designated a Historic Preservation District. The Hyde Park Market site is zoned as a Downtown Regional Activity Center — City Center, which permits an intense level of land use.

Coolidge purchased the Hyde Park Market property in 1998. The following year, Coolidge submitted its original site plan to the City for developing a 38-story condominium tower on the property. In 2000, the Hyde Park Market site was the subject of an eminent domain proceeding by the City, which wished to put a public park on the property. In May 2001, Stranahan and the City entered into an agreement (“Agreement”) whereby Stranahan would contribute funds towards the acquisition of the property. The Agreement further provided that the City “in its sole discretion, is responsible for all actions to be taken in connection with the acquisition” of the Hyde Park Market site. The City would have “the sole right and authority in all negotiations and determinations regarding the acquisition” of the property.

In March 2002, the circuit court granted summary judgment against the City on its eminent domain petition. The court concluded there was no reasonable necessity for condemning the site for use as a park. The court also found that the Historic Preservation Element of the City’s Comprehensive Land Use. Plan (“comprehensive plan”) did not include the Hyde Park Market site.

In November 2004, the circuit court approved a Consent Final Judgment entered into between the City and Coolidge containing the terms of a settlement negotiated by the parties and approved by the City Commission. Coolidge agreed to suspend its counterclaims and submit an alternative site plan. The alternative site plan would provide for the same intensity of development that Coolidge proposed in its original site plan, but would reconfigure the proposed building in order to create a broad, park-like plaza between the condominium building and the Stranahan House. Coolidge would convey the plaza area to the City subject only to an easement for joint use by Coolidge consistent with the plan.

The Consent Final Judgment stated that the original site plan complied with all applicable ULDRs as they existed on September 8, 1999, and that the original site plan was consistent with the comprehensive plan. The Consent Final Judgment also provided that the 1999 ULDR standards were the “applicable regulations” that would govern the alternative site plan. The parties agreed that if, for any reason, Coolidge did not obtain all necessary approvals for the alternative site plan, the remainder of the Consent Final Judgment would be enforced with respect to the original site plan. Finally, the City agreed to “diligently expedite and cooperate” with Coolidge in obtaining all necessary approvals and permits to allow development of the alternative site plan.

The City Commission approved the alternative site plan on December 6, 2005, in a resolution that granted site plan approval and development of the Hyde Park Market site. Stranahan filed its complaint several months later for declaratory and injunctive relief against the City and Coolidge pursuant to section 163.3215, Florida Statutes (2006). The complaint challenged the City Commission’s approval of the alternative site plan. It alleged that the development order approving the alternative site plan was inconsistent with the objectives and policies of the City’s comprehensive plan regarding protection of historic resources and neighborhood compatibility.

Stranahan’s complaint alleged, among other things, that the City’s failure to present the alternative site plan application to the Historic Preservation Board for review and comment was inconsistent with policies in the Historic Preservation Element of the comprehensive plan requiring such a review of the impact of developments on historic resources. Count I sought a declaration that the City acted contrary to the requirements of the comprehensive plan in approving the resolution that approved the site plan for the Hyde Park Market Property. It requested the court set aside and vacate the development order. Count II sought a permanent injunction against the issuance of any development orders, permits, or other development approvals pursuant to the development order for the project. It also sought to enjoin Coolidge from using the property or making improvements on it.

The City filed a motion to dismiss Stra-nahan’s complaint on the basis that the issue upon which Stranahan was seeking injunctive and declaratory relief had previously been ruled upon and adjudged to finality by the court. Specifically, the City argued that the issue of consistency with the comprehensive plan was decided in the previous eminent domain action through the Consent Final Judgment. Stranahan contended that although the Consent Final Judgment stated that the original site plan was consistent with the City’s comprehensive plan, it made no determination that the alternative site plan was consistent with the comprehensive plan. The trial court granted the City’s motion to dismiss Stranahan’s complaint. After a review of the complaint and the long history of the litigation over the Hyde Park Market site, the court found that the issues raised were no different than those previously raised and adjudicated by the court.

Stranahan contends that the trial court was incorrect in its determination that the issues raised had already been adjudicated because the issue of whether the alternative site plan is consistent with the City’s comprehensive plan has never been adjudicated in any court. Stranahan maintains that the only way to determine the consistency of the alternative site plan with the comprehensive plan is by a complaint pursuant to section 163.3215 and this is the first such action it has brought.

The standard of review of a trial court’s ruling dismissing a complaint for declaratory judgment is whether the trial court abused its discretion. S. Riverwalk Invs., LLC v. City of Ft. Lauderdale, 934 So.2d 620, 622 (Fla. 4th DCA 2006). “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Id. (citations omitted). Section 163.3215(1), Florida Statutes (2006), provides that “subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan adopted under this part.”

The trial court’s order dismissing Stranahan’s complaint for declaratory relief focused on the Consent Final Judgment in determining that the issues raised were previously adjudicated. The Consent Final Judgment contains clear findings that the original site plan complied with all applicable ULDRs as they existed on September 8, 1999, and that the original site plan was consistent with the City’s comprehensive plan. However, the Consent Final Judgment contains no finding that the alternative site plan was consistent with the Comprehensive Land Use Plan, nor could it since the alternative site plan was not submitted until after the Consent Final Judgment was entered.

Nor was the issue of the alternative site plan’s compliance with the comprehensive plan decided in any previous ruling of the trial court related to this litigation. In granting summary judgment against the City on its eminent domain petition, the circuit court concluded only there was no reasonable necessity for condemning the site for use as a park and that the Historic Preservation Element of the comprehensive plan does not apply to the Hyde Park Market site property. Appellees have not pointed to any prior ruling specifically addressing compliance of the alternative site plan with the City’s comprehensive plan. The City Commission did not approve the alternative site plan until December 6, 2005, long after the summary judgment on the eminent domain case and the Consent Final Judgment.

The trial court’s order dismissing Stra-nahan’s complaint is based on the premise that the substantive inconsistencies Stra-nahan raises between the alternative site plan and the comprehensive plan are the same as those raised in previous litigation concerning the original site plan. Unfortunately, such a determination is not possible on this record because it does not contain the previous complaints or petitions. Assuming arguendo that the allegations are the same, the current complaint for declaratory and injunctive relief still addresses the alternative plan and the court’s previous rulings addressed the original. We hold that Stranahan’s challenge to the alternative plan was not addressed by any of the trial court’s prior rulings.

Having determined that none of the trial court’s prior rulings addressed the alternative site plan’s compliance with the comprehensive plan, we turn to the issue of whether the Agreement or Consent Final Judgment prevent Stranahan from maintaining its action for declaratory and in-junctive relief.

Coolidge contends that Stranahan is bound by the City’s actions in connection with the Hyde Park Market property because Stranahan, by contract in the Agreement, authorized the City to make decisions regarding the property. Coolidge argues that Stranahan waived the current action in the Agreement. In support, Coolidge cites several cases relating to a party’s waiver of the right to jury trial or waiver of the right to sue. See Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 761 (Fla. 2d DCA 2005)(holding home buyers waived right of access to courts by agreeing to arbitration clause in contract with builder); Shay v. First Fed. of Miami, Inc., 429 So.2d 64, 66 (Fla. 3d DCA 1983)(holding developer waived its right to sue for specified period of time by agreeing to contract containing covenant not to sue provision).

The scope of the Agreement extended only to the City’s attempted acquisition of the Hyde Park Market site by eminent domain. It may not reasonably be interpreted as barring Stranahan’s challenge to a proposed site plan on the property that the City sought to condemn. Coolidge’s reliance on cases concerning waiver of the right to sue or waiver of the right to a jury trial is thus misplaced. The waivers in those cases were applicable to the actual transactions at issue. Here, Stranahan’s current suit is sufficiently separate from the City’s attempt to acquire the Hyde Park Market site that the Agreement should not be interpreted as a waiver of Stranahan’s right to challenge ultimate approval of the alternative site plan.

Coolidge argues that the differences between the original site plan and the alternative site plan do not change the land development at issue, which the trial court had previously adjudicated consistent with the City’s comprehensive plan in the Consent Final Judgment. Coolidge contends that Stranahan is bound to the Consent Final Judgment because Strana-han is in contractual privity with the City, who is a party to the Consent Final Judgment.

(1) A person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party. A person is represented by a party who is:
(b) Invested by the person with authority to represent him in an action ....

Restatement (Second) of Judgments § 41 (1982). See also Kline v. Heyman, 309 So.2d 242, 244 (Fla. 2d DCA 1975) (stating that “even though a party in a subsequent suit was not a named party in a prior suit, such party is bound by the prior judgment [under estoppel of res judicata] if he participated in the first proceeding or was represented by a party to that proceeding”).

Here, the Agreement between Strana-han and the City could not be considered to have vested the City with authority to represent Stranahan in Coolidge’s subsequent counterclaim for declaratory relief in which it sought a declaration that its site plan complied with all land use laws. Thus, the Agreement and Consent Final Judgment do not operate to prevent Stra-nahan’s complaint.

Finally, Coolidge asserts that both Stranahan and Friends lack standing to challenge the City’s approval of the alternative site plan because they are not “aggrieved or adversely affected parties” under section 163.3215. An aggrieved or adversely affected party is defined as “any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan.... ” § 163.3215(2), Fla. Stat. (2006).

Coolidge’s standing argument is without merit. The adoption of section 163.3215 liberalized the standing requirements for enforcing a comprehensive plan. Payne v. City of Miami, 927 So.2d 904, 906-07 (Fla. 3d DCA 2005). In O’Connell v. Florida Department of Community Affairs, 874 So.2d 673, 676 (Fla. 4th DCA 2004), this court dismissed an appeal based on the appellants’ lack of standing. The appellants challenged certain amendments to the Comprehensive Growth Management Plan adopted by Martin County. O’Connell, 874 So.2d at 674. They alleged that they owned property in Martin County, but they failed to state that their property was located near the affected sites or describe how the amendments would adversely affect them. Id. at 676; compare Sw. Ranches Homeowners Ass’n v. County of Broward, 502 So.2d 931, 934-35 (Fla. 4th DCA 1987)(rejecting county’s challenge to appellant homeowners association’s standing where group of adjoining property owners to proposed landfill alleged that pollution and possible drinking water contamination was inconsistent with county’s land use plan).

In addressing an issue of standing, this court must look to the four corners of the complaint and accept all well-pled allegations as true. Payne, 927 So.2d at 906. In the present case, Stranahan’s complaint alleges that Stranahan, as the adjoining property owner, will be negatively affected by “increased traffic and the activity, lights, alteration of Stranahan’s enjoyment of light and ah*, the visual and audio pollution caused by the development and the effect of the shadow cast over the Strana-han property at certain times of the year.” Stranahan also alleged it was negatively affected by the City’s failure to submit the alternative site plan to the historical preservation board for review and comment under the provisions of the comprehensive plan designed to evaluate the impact of such projects on historical sites. A purpose of Friends is to protect Stranahan House as a historical resource.

Stranahan and Friends meet the test for standing outlined in Florida Rock Properties v. Keyser, 709 So.2d 175, 177 (Fla. 5th DCA 1998). The interests alleged are protected by the City’s comprehensive plan, they are greater than the general interest in community well-being, and the interests will be adversely affected by the development. The concerns about a group asserting a mere “general interest in maintaining the quality of life,” which we held insufficient for a plaintiff to maintain standing in O’Connell, are not present here. See O’Connell, 874 So.2d at 677.

We reverse and remand for proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON, J., and BELANGER, ROBERT E., Associate Judge, concur.

      . City of Ft. Lauderdale v. Coolidge-South Mkts. Equities, No. 00-10449(09), 9 Fla. L. Weekly Supp. 383c (Fla. 17th Cir.Ct.2002).


text:
    Rudolph VITTORIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-343.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Talla- . hassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentence. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 458 (Fla.2007). As we did in Yisrael, we certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    David Hugh HOWLE, II, Appellant, v. Laureen Leann HOWLE, Appellee.
    No. 4D06-4084.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Richard E. Gitlen, Stuart, for appellant.
    No appearance for appellee.
   SHAHOOD, C.J.

David Hugh Howie, II (“Husband”), appeals from the final judgment of dissolution of marriage allowing his former wife, Laureen Leann Howie (“Wife”), to relocate to Kentucky with their children. We hold that the trial court applied the correct legal standard in ruling on Wife’s request to relocate. We therefore affirm.

The parties separated in September 2005 after seventeen years of marriage. Husband filed a petition for dissolution of marriage several months later. Wife filed an answer and counterpetition. Both parties sought sole parental responsibility and primary residential custody of their four minor children. The case proceeded to trial in September 2006, by which time Wife had already moved to Kentucky with the children to live with her boyfriend. Wife’s request for relocation was therefore addressed by the trial court as part of the petition for dissolution.

At trial, the court heard testimony from Husband, Wife, Wife’s boyfriend, Wife’s daughters from a previous marriage, and several family friends. The court rendered a detailed final judgment of dissolution awarding Wife sole parental responsibility. The court granted Wife’s request to relocate by awarding her primary residential custody in Kentucky, with visitation for Husband. Husband’s primary argument in this appeal is that the trial court erred in using an incorrect legal standard in evaluating Wife’s request to relocate.

We note that Husband did not make the trial transcript part of the record on appeal. This would normally require this court to affirm. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). However, “an appellate court may reverse an order or judgment even in the absence of an adequate record where such order or judgment is fundamentally erroneous on its face.” Kanter v. Kanter, 850 So.2d 682, 684 (Fla. 4th DCA 2003). We review the final judgment for error apparent on its face.

At the time of Wife’s request and the final judgment, requests to relocate, including requests made prior to a final judgment of dissolution, were governed by section 61.13(2)(d), Florida Statutes. Cecemski v. Cecemski, 954 So.2d 1227, 1228 (Fla. 2d DCA 2007). Section 61.13(2)(d), Florida Statutes (2005), provides: “No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.” The statute requires a court considering a request to relocate to consider the six factors enumerated at subsections 61.13(2)(d)(l)-(6).

We have thoroughly reviewed the trial court’s order and conclude that the trial court adequately considered the six factors required by section 61.13(2)(d). Although the trial court did not make specific findings with respect to each factor listed in the statute, the trial court was not required to do so as long as it considered the appropriate factors. See Cecemski, 954 So.2d at 1228. Husband’s claim that the trial court used an incorrect legal standard lacks merit.

Husband’s remaining argument, which challenges a number of the trial court’s factual findings, is unreviewable by this court due to the lack of a trial transcript.

Affirmed.

WARNER and STEVENSON, JJ., concur.

      . One of the parties' children has since reached the age of majority.

      . The requirements of section 61.13(2)(d) were later substituted with different requirements by the newly added section 61.13001(7). However, the new section does not apply to the final judgment in this case, which was rendered prior to October 1, 2006. See § 61.13001(11), Fla. Stat. (2006).


text:
    Oscar SALICETTI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4439.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.

      Michael D. Weinstein of Michael D. Weinstein, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a new motion which complies with the requirements of State v. Green, 944 So.2d 208 (Fla.2006).

KLEIN, TAYLOR and HAZOURI, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jorge Jesus LEON, Appellee.
    No. 4D07-1003.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State charged the defendant, Jorge Jesus Leon, with bigamy in violation of section 826.01, Florida Statutes. Although another assistant state attorney was in attendance, when the filing attorney for the State failed to appear as ordered by the trial court, the trial court sua sponte entered an order of dismissal dismissing the case without prejudice and concluding that the State wasted the court’s time and acted in bad faith in initiating the prosecution. The State appeals the order of dismissal. The defendant concedes error and we agree that reversal is required because the trial court’s action in dismissing the case was an abuse of discretion and constituted an improper infringement upon the State’s discretion to prosecute. State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999). Therefore, we reverse and remand for reinstatement of the bigamy charge against the defendant.

Revereed and Remanded.

GUNTHER, WARNER and GROSS, JJ., concur.


author: GROSS, J.

text:
    Glenn F. STRAUB, Appellant, v. Gaye SCARPA, Appellee.
    No. 4D07-1028.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach and Canton, OH, for appellant.
    Jose D. Sosa of Arnstein & Lehr LLP, West Palm Beach, for appellee.
   GROSS, J.

In Rapp v. Jews for Jesus, Inc., 944 So.2d 460, 467-69 (Fla. 4th DCA 2006), we expressed the concern that an expansive view of the tort of false light invasion of privacy would infringe on freedom of expression. This case demonstrates an attempt to use the tort to stifle political speech in a community. We affirm the order dismissing the lawsuit with prejudice.

Glenn Straub appeals an order dismissing his complaint for false light invasion of privacy for failure to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). In reviewing the propriety of such a dismissal, we take the allegations in the complaint as true, consider them in the light most favorable to Straub, and draw all reasonable inferences in his favor. See, e.g., Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999).

Straub filed a one-count complaint against Gaye Scarpa. The lawsuit was based on a letter Scarpa sent to the members of Southfields Homeowners Association. Straub is on the Association’s board of directors. Scarpa’s letter solicited other homeowners and association members to provide her with proxy rights to vote for a slate of directors in an upcoming election. The letter contained these paragraphs:

If you feel as we do that the property owners would be better represented by those of us who actually live here and that we will present a fair operating budget containing only necessary expenditures to maintain our community thus our property values, then please fill out your proxy giving me the permission to vote our slate and return it to me as soon as you can.
Our assessments have doubled this past year and probably will triple with this upcoming budget. It will no doubt contain very expensive items that have nothing to do with the operation of our community. The only recourse we have is to elect responsible homeowners and rein in this unnecessary spending.

(Emphasis in original). As we wrote in Rapp,

The false light theory of invasion of privacy was incorporated in section 652E of the Restatement (Second) of Torts, which defines the cause of action as follows:
[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

944 So.2d at 467; see generally Gannett Co. v. Anderson, 947 So.2d 1 (Fla. 1st DCA 2006).

Under this definition of the tort, Straub’s complaint fails for two reasons.

First, the letter did not place Straub in a false light; it did not mention his name, nor did it describe him.

Second, the letter was not “highly offensive to a reasonable person.” No reasonable person “would be justified in the eyes of the community in feeling seriously offended and aggrieved” by the letter. Rapp, 944 So.2d at 467 (quoting Restatement (Second) of Torts § 652E, cmt. c.). In a residential community governed by a homeowners association, vigorous debate over community expenditures is a value to be encouraged, not a pathway to litigation. To encourage tort litigation in a ease such as this is to stifle discussion and place political power in the hands of those wealthy and aggressive enough to finance a lawsuit.

KLEIN, J., and EMAS, KEVIN, M., Associate Judge, concur.

      . In Rapp, we certified a question of great public importance: "Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?" 944 So.2d at 468. Recently, the supreme court granted review in Rapp. Jews for Jesus, Inc. v. Rapp, 963 So.2d 702 (Fla.2007).


text:
    Jorge PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3043.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Jorge Perez, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The appellant, Jorge Perez, appeals the trial court’s order denying his rule 3.800(a) motion to correct illegal sentence, alleging that he has not received the appropriate credit for time served. We affirm in part and reverse in part. Appellant alleges that he is entitled to relief for the time spent incarcerated in Miami-Dade from March 24, 2002 until March 29, 2002. He was held during this period based on a warrant issued in Broward County. This falls under exception to Gathers v. State, 838 So.2d 504 (Fla.2003) (a prisoner subject to release being held due to a detainer or warrant lodged from another county is entitled to jail time credit during that period). As such, Appellant is warranted five (5) additional days jail time credit. Accordingly, we reverse the trial court’s order and remand for the trial court to grant the appellant credit for the time spent in jail while between March 24, 2002 and March 29, 2002 while being held on a Broward County warrant. As to all other issues, we affirm.

POLEN, TAYLOR and MAY, JJ., concur.


text:
    Tobias BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1464.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.

      Tobias Brown, Indiantown, pro se.
    No appearance required for appellee.
   POLEN, J.

Appellant Tobias Brown appeals the trial court’s summary denial of his rule 3.850 motion for post-conviction relief. Brown pleaded guilty to the charges of conspiracy to commit murder and solicitation to commit murder, and was sentenced to twenty years on two counts, sentences to run concurrently. Brown raises seven claims in his appeal and we find merit in Claims Two and Seven. As to these two claims, Brown argues he received ineffective assistance of counsel due to defense counsel’s failure to file a motion to suppress statements he made after receiving inadequate Miranda warnings, and because defense counsel failed to inform him of a possible defense to the charge of conspiracy to commit murder. We affirm the trial court’s summary denial of all but Claims Two and Seven, reverse the trial court’s summary denial of these two claims and remand for an evidentiary hearing.

To uphold a trial court’s denial of a rule 3.850 motion without a hearing, the. claims must be facially invalid or the record must show that the claimant is not entitled to relief. McLin v. State, 827 So.2d 948, 954 (Fla.2002). However, if the claims are facially sufficient, the trial court must attach portions of the record showing the claimant is not entitled to relief. See Fla. R.Crim. P. 3.850(d); Cooper v. State, 835 So.2d 1250 (Fla. 4th DCA 2003). Moreover, when the trial court does not hold an evidentiary hearing, a reviewing court must accept as true the factual allegations “to the extent they are not refuted by the record.” McLin, 827 So.2d at 954 (citing Foster v. State, 810 So.2d 910, 914 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (citations omitted)).

“[A] defendant alleging an ineffective assistance of counsel claim must set out in his or her motion sufficient alleged facts which, if proven, would establish the two prongs necessary for relief based upon ineffectiveness as outlined in Strickland." Nelson v. State, 875 So.2d 579, 582 (Fla.2004). “In a rule 3.850 motion, a defendant must therefore assert facts that support his or her claim that counsel’s performance was deficient and that the defendant was prejudiced by-counsel’s deficient performance.” Id. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In this case, Brown pleaded guilty to the charges. He now asserts, but for trial counsel’s ineffective assistance, he would not have pleaded guilty and would have gone to trial. “A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” Williams v. State, 717 So.2d 1066, 1067 (Fla. 2d DCA 1998). “However, in order to establish the prejudice prong of Strickland the defendant ‘must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Zakrzewski v. State, 866 So.2d 688, 694 (Fla.2003) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

With regard to Claim Two, Brown argues trial counsel was ineffective in failing to file a motion to suppress his statements made to police, asserting he was given an inadequate Miranda warning. Prior to giving his statement to the police, Brown was read a Miranda warning which stated, in pertinent part: “You have the right to talk with a lawyer and have a lawyer present before any questioning.” This court has found that this alone is an inadequate representation of an individual’s rights, as it does not inform them of the right to have an attorney present during questioning. Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004).

While there are situations when the Miranda form in question, coupled with police instruction, has been held to be sufficient in advising an individual of then rights, there is no evidence in the record that shows this occurred in Brown’s case. See Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006)(En Banc). As no evidentiary hearing was held below, this court must accept as true Bush’s factual allegations “to the extent they are not refuted by the record.” McLin, 827 So.2d at 954 (citing Foster v. State, 810 So.2d 910, 914 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (citations omitted)). Therefore, Brown’s assertion that he would not have entered a plea of guilty absent defense counsel’s erroneous advice must be accepted as true.

While the State argues that there was more than enough evidence to convict Brown without the statements, resulting in no prejudice to Brown, this is not the type of prejudice that needs to be shown in a plea bargain case. As pointed out above, to show prejudice in a plea bargain case, Brown must show only that without the misadvice of counsel, there was a reasonable probability he would not have pleaded guilty and would have chosen to go to trial. We find that Brown’s allegation of the resulting prejudice to his case is sufficient to satisfy the second prong of Strickland.

As to Claim Seven, Brown argues he received ineffective assistance of counsel because defense counsel failed to advise him of a possible defense to the charge of conspiracy to commit murder. Brown was a co-defendant in this case with two other individuals, Lopez and Castro. Castro wanted Lopez and Brown to kill his ex-wife. The police became aware of the situation through a confidential informant (Cl), Seth Bain, who was approached by Brown to either carry out the job or help find someone who would. Brown argues that since the Cl, acting as a government agent, was to commit an essential act of the conspiracy, i.e. he was to murder Castro’s ex-wife, Brown could not be convicted of conspiracy to commit murder.

“A conspiracy is an express or implied agreement or understanding between two or more persons to commit a criminal offense.” Sheriff v. State, 780 So.2d 920, 922 (Fla. 4th DCA 2001). “It is well-settled that where one of two co-conspirators is a government agent there can be no conspiracy.” Id. Further, “where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is to be performed by, and only by, such government agent, such persons may not legally be convicted of a conspiracy.” King v. State, 104 So.2d 730, 733 (Fla.1958). “There is no conspiracy, likewise, when an essential act of the conspiracy is the sole responsibility of a government agent.” LaPolla v. State, 504 So.2d 1353, 1357 (Fla. 4th DCA 1987).

Review of the record does not refute Brown’s assertion that trial counsel failed to discuss this defense with him, or his assertion that this defense would likely have been successful at trial, thereby making a facially sufficient attack upon his conviction. See Williams, 717 So.2d at 1067. Further, the record does not refute that had trial counsel presented this defense to Brown, he would not have pleaded guilty to the charge, thereby satisfying the prejudice prong of Strickland. See Zakrzewski, 866 So.2d at 694.

We reverse the trial court’s summary denial of Brown’s Claims Two and Seven and remand for an evidentiary hearing. As to the remaining claims, we affirm.

STONE and GROSS, JJ., concur.


text:
    Valentin RODAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-26.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, 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.

We write to address one issue — whether fundamental error occurred when the trial judge allowed a bailiff to orally transmit the court’s instruction on the law from the court to the deliberating jury. We conclude that the error was not fundamental. Because the defendant did not timely object in the trial court, before the error occurred, he did not preserve the error for appeal.

Valentin Rodas was charged with interfering with the custody of a parent or guardian, in violation of section 787.03(1), Florida Statutes (2005). The evidence at trial was that Rodas took a 13 year old girl with him to New York, against her mother’s wishes. Rodas testified that the mother approved of his relationship with the girl and gave him permission to be her boyfriend, without disclosing the girl’s age.

During deliberations, the jury asked two questions. The first question was “What is the meaning of recklessly took?” The trial judge reconvened court outside the presence of the jury and conferred with the state and defense to determine an appropriate answer to the question. After the jury returned to the courtroom, the judge answered the question. There was no objection. A juror had another question and the judge told him to “put it in writing.” The jury then left the courtroom. The bailiff told the judge that the jury was “not sure if there will be another question.”

The record then indicates that there was a “short recess, after which, proceedings resumefd].” At this point, the record becomes murky. Apparently there was a second written question: “Does definition of ‘took’ require physical force?” The written question was later marked as court Exhibit 3. The transcript then reads:

The Court: Didn’t I tell you (Indiscernible)
Bailiff: They’ve got the instructions. [Prosecutor]: I would ask to tell him that-
The Court: Tell them just to read the instructions. They have the instructions. Read them and consider them and (Indiscernible) sanity.
Bailiff: I told them to read the instruction as a whole and (Indiscernible) [Prosecutor]: That’s perfect.
The Court: Okay. Counsel, one second. Okay. (Indiscernible).
Clyde. No. Clyde, Clyde, come here[.] Come here. Just give them that and tell them it’s the answer. All right. We’ll be in recess.

What appears to have happened is that at the direction of the judge, the bailiff responded to the question by telling the jury something about reading “the instructions as a whole.” The record does not indicate how much time transpired between the judge’s direction to the bailiff (“Tell them just to read the instructions.”) and the bailiffs report back to the court. The prosecutor thought the bailiff handled the matter perfectly; the defense was silent. It appears that the judge had second thoughts, so he handwrote a response to the question: “Read the instructions with a view to harmonizing all its parts.” Then he told the bailiff to give the written instruction to the jury. Within a few minutes, the jury returned a verdict.

Rodas argues that fundamental error occurred in the answer to the jury’s second question. He relies primarily on Florida Rule of Criminal Procedure 3.410, section 918.07, Florida Statutes (2006), and State v. Merricks, 831 So.2d 156 (Fla.2002), a case where the supreme court applied the statute and rule. Memcks indicated that a bailiffs ex parte communication with the jury on a substantive matter, even “at the direction of the trial court,” constitutes “per se reversible error.” 831 So.2d at 160.

There is a difference between “per se reversible error” and “fundamental error.” The general rule is that a reversal in a criminal case must be based on a prejudicial error that was preserved by a timely objection in the trial court. See § 924.051, Fla. Stat. (2006). A fundamental error is an exception to the contemporaneous objection rule. See § 924.051(3), Fla. Stat. (2006); Reed v. State, 837 So.2d 366, 370 (Fla.2002). A fundamental error reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

A per se reversible error means that a reviewing court does not undertake harmless error analysis to decide if a prejudicial error occurred. A per se reversible error is not necessarily a fundamental one. The type of per se reversible error at issue in Merricks and in this case “is prophylactic in nature and must be invoked by contemporaneous objection at trial.” 831 So.2d at 159 (quoting Thomas v. State, 730 So.2d 667, 668 (Fla.1998)). If such an error must be preserved by an objection at trial it is not a fundamental error.

Here, the defendant did not object to the trial court’s handling of the second question. Unlike the defendant in Mer-ricks, who objected and moved for a mistrial as soon as he learned of the bailiffs ex parte communication with a juror, the defense was silent during the bailiffs interaction with the judge concerning the second question. A defendant cannot watch a trial judge drift into this type of error and then profit by his silence on appeal. We leave for another day the effect of an unpreserved Merricks error on postconviction relief. See Carratelli v. State, 961 So.2d 312 (Fla.2007); Buggs v. State, 840 So.2d 1099 (Fla. 5th DCA 2003).

Affirmed.

KLEIN, J., and EMAS, KEVIN, Associate Judge, concur.

      . Rodas’s initial brief states that at this point “there was no indication that Appellant or Appellant’s attorney were present in the courtroom.” We cannot draw that conclusion from the record. According to the clerk's notes, the jury retired to deliberate at 2:37 p.m. The jury's first question occurred at 2:58 p.m. Nine transcript pages are devoted to answering the question; the prosecutor and the defense attorney called their respective offices in the quest for a Black's Law Dictionary. The defense approved of the court's oral instruction to the jury. As the jury was retiring to the jury room, it is clear that another question might have been forthcoming. The clerk's notes state that the second question occurred at 3:19 p.m. The jury returned a verdict at 3:27 p.m. and the record indicates that Rodas and his counsel were present. Under these circumstances, we cannot conclude that the defense disappeared from the courtroom between 3:19 p.m. and 3:27 p.m., when the court handled the second question. The defense has made no attempt to recreate this part of the record under Florida Rule of Appellate Procedure 9.200(4).