author: CORTINAS, Judge.

text:
    Lawrence LAMBERT, Appellant, v. Bernice LAMBERT, Appellee.
    No. 3D06-1445.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Rehearing Denied May 9, 2007.

      Fred G. Prichason, North Miami Beach, for appellant.
    Stephen H. Butter, Miami, for appellee.
    Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

Lawrence Lambert (“Former Husband”) appeals a final judgment of dissolution of marriage that awarded Bernice Lambert (“Former Wife”) permanent periodic alimony of $1,500 per month. We reverse.

It is evident from the record that during their twenty-seven (27) year marriage the parties enjoyed a very modest lifestyle. Since their marriage in 1978, they lived in a two-bedroom, two-bathroom home in Miami, Florida. Since 1980, the Former Wife has been a clerk at Mount Sinai Medical Center. She testified that she presently earns $739 bi-weekly; however, her financial affidavit reflects that she earns a monthly net income of $1,837 per month. The Former Husband’s financial affidavit reflects that he earns a monthly net income of $2,171.92 from his employment at the postal service. Additionally, the Former Husband testified that he earns $400 per month from a small cleaning business he has operated for approximately seven years.

After the parties separated in October 2004, the Former Husband voluntarily paid the Former Wife $1,500 per month from January 2005 until March 2006. The uncontroverted evidence in the record shows that the Former Husband made these voluntary payments to the Former Wife during their separation to cover the mortgage, property taxes, and insurance of the former marital residence. The funds utilized to make these payments were insurance proceeds from the death of the Former Husband’s son, which have been exhausted.

In April 2006, the parties entered into a Partial Mediated Settlement Agreement (“Agreement”). The Agreement equitably distributed all of the parties’ assets and liabilities and resulted in the distribution of the marital residence to the Former Wife. The Agreement resolved most of the financial issues between the parties by stipulation; however, the parties could not agree on the issue of alimony.

Thereafter, the trial court conducted a final hearing to resolve the alimony dispute. At the conclusion of the hearing, the trial court entered a final judgment that incorporated the parties’ Agreement as to the distribution of the assets. In addition, the court awarded the Former Wife permanent periodic alimony in the amount of $1,500 per month. Specifically, the trial court found that (1) this was a long term marriage, (2) the Former Husband has greater income capacity than the Former Wife, (3) the Former Wife has a permanent periodic need for alimony, and (4) the Former Husband voluntarily paid the Former Wife $1,500 per month since October 2004. We review whether the trial court abused its discretion in awarding $1,500 per month in permanent periodic alimony. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

On appeal, the Former Husband argues that the trial court abused its discretion in awarding permanent periodic alimony that he is unable to pay. Although we are satisfied that the Former Wife has established a need for permanent alimony, we find that the award of permanent alimony in this case is clearly excessive insofar as it will consume approximately sixty percent (60%) of the Former Husband’s net monthly income and will leave the Former Husband with approximately $1,000 per month for his sustenance. See Squindo v. Osuna-Squindo, 943 So.2d 232, 234 (Fla. 3d DCA 2006) (reversing permanent alimony award which consumed approximately seventy percent (70%) of husband’s net monthly income and left former husband with $600 per month); Blum v. Blum, 382 So.2d 52, 55 (Fla. 3d DCA 1980) (reversing permanent alimony award that left former husband with $200 per month); Sokol v. Sokol, 441 So.2d 682, 685 (Fla. 2d DCA 1983) (where permanent alimony award which amounted to seventy one percent (71%) of take home pay constituted an abuse of discretion).

“The purpose of permanent periodic alimony is not to divide future income to establish financial equality” between the parties. Donoff v. Donoff, 940 So.2d 1221, 1225 (Fla. 4th DCA 2006) (quoting Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003)). The purpose of alimony is to avoid, where possible, having a former spouse “pass from the ease and comfort of always having more than enough, to the distress of having only just enough for the essentials of minimum food, shelter and clothing.” Id. “The standard of living is not a super-factor in setting the amount of the alimony-trumping all others.” Id. Instead, the trial court should consider all the relevant factors set forth in section 61.08(2), Florida Statutes (2005), including the financial resources of each party and all sources of income available to either party. Id. at 1223; see § 61.08(2)(d), (g), Fla. Stat. (2005). Therefore, in determining the amount of permanent periodic alimony, the trial court must not only consider the lifestyle achieved during the marriage, but must also consider the needs of the spouse requesting alimony and the ability of the other spouse to make alimony payments. See Donoff, 940 So.2d at 1225; Rosecan, 845 So.2d at 928.

Here, it is evident from the record that the trial court erroneously placed undue emphasis on the standard of living during the marriage when the Former Husband and the Former Wife shared their financial resources and income. The trial court incorrectly tried to achieve financial equality between the parties and, in so doing, set the prior standard of living as a supreme factor in setting the amount of alimony. Notably, this is not a situation where the Former Wife was exposed during the marriage to a standard well beyond basic necessities and would subsequently have just enough for the essentials of food, shelter, and clothing. On the contrary, the record shows that both parties had a very modest lifestyle from the time they wed in 1978 to the time of divorce. Additionally, in determining the amount of alimony, the trial court emphasized that the Former Husband earned a greater monthly income than the Former Wife. While this is true, the disparity in income is relatively small. This is not a case where one party enjoys a far superior standard of living than the other. Instead, this case involves two individuals with barely enough income to meet basic household expenses.

We recognize that it will be difficult for both parties to maintain a lifestyle identical to that lifestyle when they were married; however, we must balance the standard of living as well as the Former Wife’s needs with the Former Husband’s ability to pay permanent periodic alimony. See Donoff, 940 So.2d at 1225; Rosecan, 845 So.2d at 928. Here, there is no basis in the record to reasonably expect that the Former Husband could pay over sixty percent (60%) of his income to his Former Wife while having only $1,000 per month for his own sustenance. Accordingly, we hold that the trial court erred in awarding alimony in an amount that exceeded the Former Husband’s ability to pay. At most, the facts of this case support an award of permanent periodic alimony of $500 per month.

We are compelled to briefly address the Former Wife’s contention, and the trial court’s finding that because the Former Husband made voluntarily payments to the Former Wife during the separation, he recognized her need for alimony and his ability to pay. The Former Wife erroneously relies on our decision in Vickers v. Vickers, 413 So.2d 788, 789-90 (Fla. 3d DCA 1982), where we found that the former husband’s voluntary post-separation payments to the former wife conclusively established that the amount was within the former husband’s ability to pay and satisfied her needs. The facts in Vick-ers are clearly inapplicable to the case before us. In Vickers, the trial court determined whether to continue temporary. alimony pending the final hearing on the financial aspects of the dissolution. Id. at 790 n. 1. In fact, we instructed the trial court to credit the former husband, after the final hearing and post dissolution of the assets, with half of the voluntary payments that were used by the former wife to pay the mortgage of the marital residence. Id. at 790 n. 2. Here, unlike the trial court in Vickers, the trial court was faced with the issue of whether to award permanent periodic alimony after equitable distribution of all the parties’ assets and liabilities. The Former Husband’s uncon-tradicted testimony at the final hearing was that he made voluntary payments to the Former Wife to stay current of the mortgage payments and taxes of the marital residence, which was ultimately distributed to the Former Wife in the final judgment. Furthermore, the Former Husband testified that the funds used to make these payments were insurance proceeds from the death of his son, which have been exhausted. Here, the Former Husband’s voluntary payments to the Former Wife during separation were not dispositive in determining his ability to pay. Consequently, the trial court improperly applied our holding in Vickers to support its finding that the Former Husband had the ability to make permanent periodic alimony payments of $1,500 per month.

We find the trial court abused its discretion in awarding permanent periodic alimony in the amount of $1,500 per month. Thus, we reverse the order below and remand the cause with directions that the trial court shall require the Former Husband to pay $500 per month in permanent periodic alimony.

Reversed and remanded with directions.

      . The trial court’s order requires the Former Husband to pay the Former Wife "$750 two times monthly ... and payable bi-weekly.”


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    Vincent G. RAINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3759.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.

      Thomas F. Egan and Kimberly A. LaS-ure of Thomas F. Egan, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Rains appeals his conviction for lewd and lascivious battery of a twelve-year-old boy. He was charged pursuant to section 800.04(4)(a), Florida Statutes (2003). We affirm.

Rains was a middle school math teacher. He also conducted an after-school activity program in his classroom. The program included recreational activities. One of the activities was Nerf basketball.

The victim was a student of Rains who frequently participated in Rains’ after-school activity program. There were apparently several occasions during which Rains and the victim were the last people to leave the classroom.

The victim testified that on some of the occasions when they were alone, Rains would lock the classroom door. They would then play Nerf basketball which would include wrestling. During some of these Nerf basketball/wrestling games, Rains would ask the victim to sit on his face. The victim, while fully clothed, would comply with Rains’ request. Eventually, Rains requested the victim sit on his face with the victim’s pants pulled down. Again, the victim complied with Rains’ request.

On the last (or second to last) day of the school year, the victim testified he was again the last student in Rains’ after-school activity program. Rains locked the classroom door and the two engaged in their Nerf basketball/wresting game. On this occasion, Rains asked the victim to put his penis in Rains’ mouth. The victim complied with Rains’ request.

Prior to his arrest, Rains gave the police a taped statement. This statement was presented to the jury. In his statement, Rains acknowledged there were occasions when he was alone in his classroom, after school, with the victim. He denied he ever locked the classroom door. He admitted there were two occasions, when they were wrestling, the twelve-year-old put him in a headlock, forced his mouth open, and put his penis in Rains’ mouth. He acknowledged he probably could have prevented the sexual contact without hurting the child, but failed to do so.

At trial, Rains testified that while he was lying on the ground on his stomach during one of these Nerf basketball/wrestling games, the twelve-year-old boy “grabbed my face. His pants were already down, and he grabbed my face and he put his privates on my face and shouted, Give, Give,? And I give, and then he gets up. One second or two.... It happened that fast.”

On appeal, Rains first argues the trial court erred by refusing to give the Standard Jury Instruction for lewd and lascivious battery. However, the Standard Jury Instruction was adopted in 1981. In 1999, the Legislature significantly amended section 800.04. We find the trial court correctly recognized that the Standard Jury Instruction was not appropriate for the amended statute. The jury instruction given by the trial judge read, as follows:

To prove the crime of lewd or lascivious battery, the state must prove the following two elements beyond a reasonable doubt:
1. [Name of alleged victim] was 12 years of age or older but under the age of 16 years.
2. Vincent Rains committed an act upon or with [name of alleged victim] in which the sexual organ of [name of alleged victim] penetrated the mouth of Vincent Rains.
Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged.

The trial court’s instruction tracked the language of the statute. Bayer v. State, 788 So.2d 310 (Fla. 5th DCA 2001), rev. denied, 816 So.2d 125 (Fla.2002). Accordingly, we find no abuse of discretion.

We also reject Rains’ second argument that the trial court’s use of the word “acquiesce,” in responding to a jury question, requires a reversal. During its deliberations, the jury sent the following question to the court:

Define the law — state has to prove— problem areas
1) committed an act upon? Does this mean willing participant
2) define lewd or lascivious battery

In answering the first question, the trial judge advised the jury:

If you determine in your deliberations that the defendant did not acquiesce in the conduct and, therefore, is not a willing participant, then you should find the defendant not guilty. If you determine that the defendant did acquiesce in the conduct, then he may be considered a willing participant and you should find the defendant guilty if all of the other elements of the crime have been proved to you beyond and to the exclusion of a reasonable doubt.

“Acquiesce” can mean “assent tacitly; agree; consent.” Applying this definition of acquiesce, the trial court’s response to the jury question would be proper. Farrell v. State, 791 So.2d 598 (Fla. 3d DCA 2001), rev. denied, 817 So.2d 846 (Fla.2002). However, as argued by Rains, “acquiesce” can also mean “submit or comply quietly.” Therefore, Rains argues the jury may have been misled to believe that a guilty verdict was required even if the jury found that the twelve-year-old was the aggressor and Rains “submitted quietly,” but not willingly.

Although it would have been preferable for the trial judge not to use the word “acquiesce,” we do not believe there was a reasonable possibility that the jury was misled by the court’s instruction. Neither the victim’s testimony nor appellant’s videotaped statement would support a conclusion that appellant had submitted unwillingly to sexual contact with the child. Furthermore, if the jury accepted Rains’ trial testimony, neither definition of “acquiesce” would be applicable. Rains’ testimony was that the entire event occurred so rapidly that he had no opportunity to respond. Thus, he did not have the opportunity to “assent tacitly, agree or consent.” Nor did he have the opportunity to “submit or comply quietly.”

To commit an act requires a person to act deliberately. Rains’ trial testimony, if accepted, would have simply supported the conclusion that Rains did not “commit” any sexual act upon or with the child. Based on the verdict, it appears clear the jury found Rains’ trial testimony to not be credible.

We find no merit to the remaining issues raised by Rains.

AFFIRMED.

GRIFFIN, J., concurs.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent.

The appellant raised numerous claims of error in this appeal and I agree with the majority that most of the claims lack merit. For example, I reject the appellant’s contention that the trial court erred in excluding reverse Williams Rule Evidence, including evidence that the complaining witness had sexually battered his cousins, had solicited homosexual men for sex, and had bullied other children by putting them in head locks and forcing them to “submit.” I agree with the majority that the trial court did not abuse its discretion in excluding this testimony on the grounds that it was not sufficiently factually similar to the acts alleged in this case. I also agree with the majority’s conclusion that the trial court did not err in refusing to issue the Standard Jury Instruction for the crime of lewd or lascivious battery. However, I disagree with the majority’s conclusion that there was no reasonable possibility that the jury was misled by the trial court’s improper instruction on the crime of lewd or lascivious battery.

Trial courts should give jury instructions which are not confusing, contradictory, or misleading. Butler v. State, 493 So.2d 451 (Fla.1986). The instant record, on its face, demonstrates that the jury instruction at issue in this case was erroneous because it was both confusing and misleading. If the appellate court cannot determine, beyond a reasonable doubt, that a trial court’s erroneous instruction did not affect the jury’s verdict, then the error is, by definition, harmful. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Here, the error was harmful.

The instant instruction was confusing because the trial court used the word “acquiesce” without defining the word and, as pointed out in the majority opinion, “acquiesce” has at least two contradictory definitions. The majority opinion concludes that there was no reasonable possibility that the jury was mislead by the trial court’s instruction based upon a definition of the word “commit” which requires proof of deliberate action. Unfortunately, that definition was not given to the jury, so the court’s use of that word could not prevent the confusion which may have occurred here.

The instruction was also misleading because it directed the jurors that, if they found acquiescence on the part of the appellant, then the appellant should be found guilty (provided that all of the other elements of the crime were proven), rather than instructing them that, if they found acquiescence, they needed to determine whether that acquiescence reasonably implied the appellant’s consent.

Here, the issue of whether the appellant was a willing participant in the instant sexual encounter was obviously of concern to some or all of the jurors since, during deliberations, they asked the trial court whether the appellant needed to be a willing participant in order to be found guilty of committing a lewd or lascivious battery. The trial court should have answered that question simply by saying “yes.” Instead, over defense counsel’s objection, the trial court gave the jurors the confusing and misleading instruction.

I strongly disagree with the majority’s application of harmless error based on the reasoning that “neither the victim’s testimony, nor appellant’s videotaped statement would support a conclusion that appellant had submitted unwillingly to the sexual contact with the child.” As noted in the majority opinion itself, the appellant stated that the 12-year-old student put him in a headlock, forced his mouth open, and put his penis in the appellant’s mouth. This testimony, if believed by the jury, certainly could support a conclusion that the appellant had submitted unwillingly to the sexual contact with the student, even with the appellant acknowledging that he probably could have prevented the sexual contact without hurting the student, (whom he described as 5'10" tall and 185 lbs.), but failed to do so.

I would reverse the appellant’s judgment and sentence and remand this matter to the trial court for a new trial because the trial court’s jury instruction was erroneous and it is impossible to determine that there was no reasonable possibility that the jury was mislead by that instruction.

      .The Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted a proposed jury instruction for amended section 800.04. The Committee’s petition seeking approval of the proposed instruction is currently pending before the Supreme Court. Amended Report No. 2005-03. The trial court’s instruction was consistent with the Committee’s proposed Standard Jury Instruction.

      . http://dictionary. reference.com/brcAvse /acquiesced.

      . Id.See also Merriam-Webster on Line Dictionary httpllm--w.com.

      . See Memam-Webster on Line Dictionary httpHm-2.com (defining "commit” to mean "to carry into action deliberately.”)

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


author: SAWAYA, J.

text:
    ESTATE OF Clara B. JONES, etc., Appellant, v. MARINER HEALTH CARE OF DELAND, INC., et al., Appellees.
    No. 5D05-1214.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2007.
    Rehearing Denied April 27, 2007.

      Susan B. Morrison, of Law Office of Susan B. Morrison, P.A. and Brian L. Thompson, John R. Cummings and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Michael R. D’Lugo and Richards H. Ford, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appel-lee Mariner Health Care of DeLand.
    No Appearance for other Appellees.
   SAWAYA, J.

We review a final judgment and attendant order denying a motion for new trial emanating from an action filed by a nursing home patient, Clara B. Jones, alleging common law negligence and violations of the Nursing Home Residents’ Act, which is a fitting sobriquet recently coined by the judiciary to specifically reference sections 400.22 and 400.23, Florida Statutes. Jones also claimed entitlement to punitive damages. The Estate of Clara B. Jones, which was substituted for Jones upon her death, contends that the final judgment rendered in favor of the defendants is erroneous and that a new trial is warranted because the trial court improperly limited the claims under the Act to violations that occurred after May 15, 2001.

The defendants in the underlying action, the appellees here, are: Mariner Health Care of Deland, Inc., which is the licensee of the nursing home facility where Jones resided from October 14, 1998, to June 30, 2001; Mariner Post Acute Networks, Inc. [MPAN], which is its corporate parent; Mariner Health Group, Inc. [MHG], a corporate entity that had previously merged with another corporation to form MPAN; and Merle Zinick, the administrator of the nursing home facility. For ease of reference, these defendants will be collectively referred to as “Mariner.” Mariner argues that no error occurred, but if it did, it was harmless. We affirm in part and reverse in part.

Factual and Procedural Background

To resolve the issue before us, it is not necessary to parade the list of horribles alleged to have occurred to Jones while she was a resident of Mariner. It is enough for us to discuss the procedural background and chronicle certain incidents of alleged abuse and violations of the Act when necessary to determine whether error occurred and, if so, whether a new trial is warranted.

We begin with Jones’ 1998 entry into the nursing home at the age of 86 for rehabilitation after hip surgery. At that time, she had a very large stage IV decubitus ulcer, was suffering from dementia, and needed assistance with her daily activities. Among other things, Jones had limited mobility and needed assistance with toileting. Further, she constantly cried throughout her stay and was unable to communicate. Despite her infirmities, she was expected to rehabilitate.

In January 1999, Jones suffered a fecal impaction for which she was successfully treated. She remained relatively healthy until June 2001, when the incident giving rise to this suit occurred. On June 15, 2001, she suffered a brown, watery emesis. No doctor was contacted because the staff felt it was an isolated incident. In fact, nothing happened again until June 30, 2001, when Jones again suffered another brown emesis. She had been eating well and having bowel movements.

The emesis was tested for the presence of blood, and the results were positive. Dr. Alstott was called, and he instructed that Jones needed to go to the hospital immediately. Upon arrival at the hospital, Dr. Capulong was called in for a consult. He noted contractures in her hips and knees just prior to performing a colostomy. He discovered that Jones had a perforated rectum and a massive fecal impaction the size of a football. Jones recovered well from the surgery and was released on July 10, 2001. She then changed nursing home facilities and resided at University Center East for another year and a half before her death on January 26, 2003.

Prior to her death, Jones filed suit against Mariner, through her daughter as guardian, claiming common law negligence and violation of her rights under the Act. She claimed that the nursing home (and vicariously MHG and MPAN) failed to provide adequate and appropriate health care, resulting in contractures and a fecal impaction requiring surgery. Unfortunately, Jones died before trial, and it therefore became necessary for the personal representative to continue the lawsuit.

Shortly before the trial commenced, the Florida Supreme Court issued its opinion in Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004), which held that a personal representative could not bring a claim under the 1997 version of section 400.023(1) when the alleged violation did not cause the resident’s death. Based on this ruling, Mariner moved to strike all of the claims under the Act, arguing that the personal representative was proceeding against Mariner for alleged violations that were admittedly not causally related to Jones’ death. The trial court struggled with its decision but ultimately ruled that Knowles applied and that the claims under the Act would be limited to the allegations that occurred after May 15, 2001. This date became a component of the trial court’s ruling because the Legislature amended section 400.023(1), effective on that date, to eliminate death as a causal factor when a personal representative brings a claim under the Act. Because Jones entered the hospital on June 30, 2001, and did not return to Mariner, the trial court’s ruling, in essence, restricted the Estate’s claim under this statute to the last 45 days of Jones’ residency at the nursing home. Further, the negligence claims were restricted to the time period between October 14, 1998, and May 15, 2001.

The ease proceeded to trial and was presented to the jury in that posture. The trial court directed a verdict for MHG and Merle Zinick, and the jury returned a verdict finding that the other two defendants were not liable. The trial court denied the Estate’s motion for new trial and the Estate appealed.

Statutory Analysis

In order to determine whether the trial court erred in limiting the Estate’s claims under the Act to infringements that occurred after May 15, 2001, we must examine the pertinent statutory provisions. The question thus becomes a matter of statutory interpretation requiring application of the de novo standard of review. See Velez v. Miami-Dade County Police Dep’t, 934 So.2d 1162, 1164 (Fla.2006); Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”).

The textual point marked for emphasis by the parties upon which we focus our attention is the part of the Act found in section 400.023(1) that states:

Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent’s rights.

§ 400.023(1), Fla. Stat. (1997) (emphasis added).

While the emboldened provision of the statute is clear and unambiguous, there was some debate as to whether its plain meaning was what the Legislature actually intended. The Florida Supreme Court addressed this issue in Knowles and concluded that the language of the statute is clear that “a personal representative of the estate of a deceased resident may bring a cause of action against a nursing home only when the death of the resident resulted from, the deprivation or infringement of the decedent’s rights.” Knowles, 898 So.2d at 6. What is clear from even a casual reading of the decision in Knowles, besides, of course, its interpretation of section 400.023(1), is that if the supreme court had the power to rewrite the statute with sensible design, it would have done so in a way that deleted the requirement that a personal representative can bring suit only if he or she shows that the alleged statutory violation caused the patient’s death, much as the Legislature did when it amended the statute in 2001. But just as the supreme court could not rewrite the statute to delete that which the Legislature specifically and clearly included, the courts cannot rewrite the statute by inserting that which the Legislature did not include. We believe the trial court violated the latter prohibition by interpreting the statute, via the Knowles decision, to mean that a personal representative could neither bring nor maintain an action filed by the nursing resident prior to death unless the death was caused by a statutory violation.

The supreme court in Knowles explained that “because this is a legislatively created cause of action to be brought by personal representatives only under certain circumstances, we conclude the Legislature had the authority both to determine the extent of the statutory right and to prescribe or limit the remedies available for a violation of the right.” Id. at 9. The manner in which the Legislature did that was to prohibit a personal representative from bringing a suit unless death was a causal factor. Nowhere does the Legislature state or express its intention that a personal representative be prohibited from maintaining a suit previously filed by the patient or guardian of a patient who dies during the pendency of the litigation. Unlike the trial court, we do not consider the terms “bring” and “maintain” to be synonymous within this statutory context of section 400.023(1). “Bring” generally means to cause to exist or occur, while “maintain” means to sustain or continue. Merriam Webster’s Collegiate Dictionary 143, 702 (10th ed. 1997). Judicial insertion of the provision “maintain an action” into the structure of the statute constitutes error on the part of the trial court, just as the Estate contends.

We are not persuaded to the contrary by the cases that have dealt with section 400.023 and a personal representative’s ability to bring suit prior to the statutory change, primarily because the factual scenarios that were presented to the courts in those cases are not similar or analogous to the facts in the instant case. See Knowles; Tampa Med. Assocs., Inc. v. Estate of Craig, 915 So.2d 660 (Fla. 2d DCA 2005); Estate of Doyle v. Mariner Healthcare of Nashville, Inc., 889 So.2d 829 (Fla. 2d DCA 2004); Estate of Vazquez v. Avante Groups, Inc., 880 So.2d 723 (Fla. 5th DCA 2004); Estate of Youngblood v. Halifax Convalescent Ctr., Ltd., 874 So.2d 596 (Fla. 5th DCA 2004) (originally filed by guardian of the resident, but in the interim the resident died and the appellee was not added as a defendant until after her death thereby making it a personal representative who filed suit); Greenfield v. Manor Care, Inc., 705 So.2d 926 (Fla. 4th DCA 1997), review denied, 111 So.2d 534 (Fla.1998). Those decisions have only dealt with the issue in the context of the personal representative bringing suit. Here, the resident’s guardian filed suit on behalf of Jones while she lived and, therefore, the guardian was not required to show that the alleged violations or deprivations caused Jones to die. Once Jones died, the personal representative maintained the lawsuit. Because the personal representative did not initiate the lawsuit, the requirement placed upon personal representatives to show a statutory violation as the cause of death does not apply.

Harmless Error Analysis

Mariner, citing this court’s decision in Vazquez, argues that even if error did occur in limiting the claim under the Act, the error is harmless. In Vazquez, the issue on appeal was whether the jury instruction regarding the claim under the Act was proper. Vazquez, 880 So.2d at 724. In addressing that issue, this court explained on rehearing that it found the jury instruction to be erroneous, but harmless, because the jury’s verdict on the negligence claim that was in favor of the nursing home was sustainable. “Close examination of the estate’s complaint reveals that the allegations asserting a violation of Chapter 400 virtually track those contained in the unsuccessful negligence count.” Id. at 726. The same is not true in the instant case because the claims under the Act and the negligence claim are not identical. Mariner also concedes that the jury instructions were different and the proof offered was not identical. Therefore, Vazquez is distinguishable from the instant case.

We also note that the Act is remedial; it was enacted to provide nursing home residents “ ‘a mode of remedy for a wrong, where [they] had none, or a different one, before.’ ” Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333, 334 (Fla. 4th DCA 2005) (quoting Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1024 (Fla. 4th DCA 2005)); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA), review denied, 917 So.2d 195 (Fla.2005). Because the Act is intended to provide a remedy where none existed or to change a remedy previously provided, it is not enough to show harmless error to simply assert that the injured or deceased resident also unsuccessfully pursued a common law negligence action, especially when, as here, the allegations are not the same, the evidence is not the same, and the jury instructions are different.

Conclusion

We conclude that limiting the Estate’s claims under the Act as the trial court did constitutes error. We disagree with the argument presented by Mariner that this error is harmless. Accordingly, we reverse the directed verdict and judgment rendered in favor of Mariner and remand this case for a new trial on the claims under the Act.

Certified Question

Mariner suggests, and we think appropriately so, that the issue we have resolved should be certified to the Florida Supreme Court given the large number of pending claims based on the version of section 400.023(1) in effect prior to its amendment in 2001. Therefore, we certify the following question to the Florida Supreme Court as a matter of great public importance:

DOES THE VERSION OF SECTION 400.023(1), FLORIDA STATUTES, IN EFFECT PRIOR TO ITS AMENDMENT IN 2001 PROHIBIT A PERSONAL REPRESENTATIVE FROM MAINTAINING A CLAIM WHEN THE ALLEGED VIOLATION DID NOT CAUSE THE RESIDENT’S DEATH AND WHEN THE SUIT WAS ORIGINALLY FILED BY THE RESIDENT PRIOR TO HIS OR HER DEATH?

AFFIRMED IN PART; REVERSED IN PART; REMANDED; AND QUESTION CERTIFIED.

PLEUS, C.J., and MONACO, J., concur.

      . See SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA), review denied, 917 So.2d 195 (Fla.2005).

      . We affirm the judgment as to the common law negligence count. Based on our resolution of the issue we address in this opinion, the other issues relating to the cause of action under the Act are rendered moot.

      . The statute was amended effective May 15, 2001, to allow a personal representative to bring suit regardless of the cause of death:
      Any resident whose rights as specified in this part are violated shall have a cause of action. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death.
      § 400.023(1), Fla. Stat. (2001).

      . The court in Blankfeld explained:
      A remedial statute is one which confers or changes a remedy. Campus Communs., Inc. v. Earnhardt, 821 So.2d 388 (Fla. 5th DCA 2002). The Nursing Home Resident’s Act is remedial. Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1 (Fla.2004). The “Residents Rights” provisions in section 400.022 were enacted in 1980 to respond to a Dade County Grand Jury investigation of nursing homes which revealed detailed evidence of substantial elder abuse occurring in nursing homes. See Romano v. Manor Care, 861 So.2d 59, 62-63 (Fla. 4th DCA 2003); Crotts & Martinez, The Nursing Home Residents' Rights Act-A Good Idea Gone Bad!, 26 STETSON L. REV. 599 (1996). In 1993, the Legislature amended the statute by enacting section 400.023 ("Civil Enforcement”), providing civil remedies for nursing home residents for violation of the statute. § 400.023(1), Fla. Stat. (2001). A cause of action "may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any violation of the rights of a resident or for negligence.” Id.

        Blankfeld, 902 So.2d at 298.

      . Not only are the jury instructions different in terms of the elements for each claim, but also, the instructions divided the two claims into separate time frames: the jury was instructed to determine whether there was negligence on the part of Mariner between October 14, 1998, and May 15, 2001, and whether there was a deprivation or infringement of Jones' resident rights on the part of Mariner between May 15, 2001, and June 30, 2001. Obvious concern on the part of the trial judge that the jury would be confused prompted him to tell the jurors, "Now, the reason that there are two different time periods is there has been a change in the law, in the statutes, so don’t be confused." Our concern is that it may have been difficult for the jury to comply with this directive.


author: PER CURIAM.

text:
    Danny Lee ADAMS, Appellant, v. Deborah Jo ZARATE, Appellee.
    No. 3D05-1813.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    Danny Lee Adams, in proper person.
    Deborah Jo Zarate, in proper person.
    Before GERSTEN, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Danny Lee Adams, (“former husband”), appeals the trial court’s order approving the general master’s report and income deduction order awarding Debora Jo Za-rate, (“former wife”), child support payments. The former husband raises numerous points on appeal, but has failed to present a transcript of the proceedings or prepare a factual statement of the proceedings. Thus, the record presented is inadequate to demonstrate reversible error. See Schmitt v. Maile, 946 So.2d 60 (Fla. 4th DCA 2006); Mayfield v. Mayfield, 929 So.2d 671 (Fla. 5th DCA 2006); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Accordingly, we must affirm.

Affirmed.


author: PALMER, J.

text:
    Mitchel KALMANSON, Petitioner, v. Richard L. DUCOTE and Donna J. Robinson, Respondent.
    No. 5D06-4283.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.
    Rehearing Denied May 1, 2007.
    T.W Ackert of T.W. Ackert, P.A., Winter Park, for Petitioner.
    Richard L. Ducote, Metairie, LA, pro se.
    No Appearance for Respondent, Donna Robinson.
   PALMER, J.

Mitchel Kalmanson (father) filed a petition seeking a writ of prohibition to prevent the trial judge from revisiting or vacating a sanction order previously affirmed by this court. Determining that the respondent, Attorney Richard L. Ducote, is precluded by the principle of res judicata from further challenging the sanction order, we grant the petition.

Since 2000, this highly contested custody dispute has appeared in this court 13 times. Relevant to this appeal, in 2003, the trial court ordered Ducote (attorney for the mother, Donna Robinson) to pay the father’s attorney’s fees and costs as a sanction for Ducote’s “bad faith” conduct related to:

1. Making “frivolous objections” leading to extra expense in retaking a deposition;
2. Using illegally obtained evidence;
3. Asking immaterial and embarrassing questions in an attempt to intimidate a witness during her deposition; and,
4. Placing father in a position where he was forced to seek emergency in-junctive relief related to pre-trial publicity.

Ducote appealed the sanction order in our Case No. 03-3341. In that appeal, Ducote asserted, among other arguments, that the trial court’s imposition of monetary sanctions violated his right to due process. This court affirmed. See Ducote v. Kalmanson, 905 So.2d 898 (Fla. 5th DCA 2005). Ducote moved for rehearing, for rehearing en banc, and for a written decision. His motions were denied, and this court issued its mandate on July 18, 2005. Ducote did not seek further relief in the supreme court.

Instead, Ducote filed a motion in the trial court to vacate the sanction order. Ducote asserted “that he was not given notice that the former husband was claiming attorneys’ fees against him personally.” The trial judge issued a stay of enforcement regarding the sanction order, ordered the father to show cause why Du-cote’s motion should not be granted, and ruled that “a hearing is necessary to determine whether Mr. Ducote was given adequate notice and an opportunity to be heard on his personal liability for attorneys’ fees.”

The father challenges this order, arguing that, since this court affirmed the sanction order against Ducote in Case No. 03-3341, the trial judge can not revisit the issue. We agree. The trial court has no authority to reconsider the sanction order because this court has affirmed the order.

In a fairly similar situation, the third district provided a good analysis of the controlling legal principles:

On this appeal, the former husband [an attorney] argues that one of the underlying attorney’s fee orders was entered in error and that the trial court erred in enforcing it. This argument is without merit.
The underlying attorney’s fee order which the former husband is trying to attack was entered on March 4, 2003 ... The former husband appealed the March 4 order to this court, arguing procedural error. This court affirmed without opinion. Sibley v. Sibley, 866 So.2d 1223 (Fla. 3d DCA 2003) (table), cert. denied, 542 U.S. 937, 124 S.Ct. 2909, 159 L.Ed.2d 813 (2004). Since the former husband already appealed the March 4 order and this court already affirmed it, common sense and principles of res judicata dictate that the former husband cannot now mount a second appeal of the March 4 order.

Sibley v. Sibley, 885 So.2d 980, 981(Fla. 3d DCA 2004). See also State ex rel. Cantera v. District Court, 555 So.2d 360 (Fla.1990)(explaining that prohibition is the proper remedy to prevent the trial court’s improper exercise of judicial power over matters already determined on appeal).

PETITION GRANTED; WRIT ISSUED.

PLEUS, C.J. and MONACO, J., concur.


author: BENTON, J.

text:
    Kevin MACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4096.
    District Court of Appeal of Florida, First District.
    March 26, 2007.
    Rehearing Denied May 4, 2007.

      William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   BENTON, J.

In a petition for writ of habeas corpus (styled petition for habeas corpus relief) Kevin Mack contends that counsel on his direct appeal was ineffective for failing to argue that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), required reversal of his sentence. We do not agree that Apprendi and Blakely have any application in his case and deny the petition.

As a federal constitutional matter, a criminal defendant is entitled to the assistance of counsel on the first appeal of right from a conviction, even if unable to afford private counsel. See Ross v. Moffitt, 417 U.S. 600, 606-15, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 354-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). “Habeas petitions are the proper vehicle to advance claims of ineffective assistance of appellate counsel.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). See Fla. R.App. P. 9.141(c)(2) (2006) (“Petitions ... alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was or should have been taken.”).

“When analyzing the merits of the claim, ‘[t]he criteria for proving ineffective assistance of appellate counsel parallel the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard for ineffective trial counsel/” Rutherford, 774 So.2d at 643 (first alteration in original) (footnote omitted) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985)). The petitioner must show

first, that appellate counsel’s performance was deficient because “the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance” and second, that the petitioner was prejudiced because appellate counsel’s deficiency “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Thompson [v. State, 759 So.2d 650, 660 (Fla.2000) ]. If a legal issue “would in all probability have been found to be without merit” had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective. Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994).

Rutherford, 774 So.2d at 643 (citations omitted). See also Downs v. Moore, 801 So.2d 906, 910 (Fla.2001) (stating “appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims”). To prevail on a claim of ineffective assistance of counsel, trial or appellate, the defendant must establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

On March 4, 2004, Mr. Mack entered a plea of guilty to possession of a firearm by a convicted felon, a second degree felony. He had signed a plea agreement, styled Plea of Guilty and Negotiated Sentence, under which his sentence was to have been thirty-eight months in state prison, with a three-year minimum mandatory term, subject, however, to this proviso: “Sentence will be deferred until April 20, 2004.... If defendant fails to appear or commits a new crime supported by probable cause. Plea will stand but Defendant can receive any legal sentence.” Petitioner does not seek to set aside the plea agreement and does not question its validity.

Our supreme court has held that plea agreements may contain conditions that depend on later fact finding. See Quarterman v. State, 527 So.2d 1380, 1382 (Fla.1988) (noting “the conditions which Quarterman agreed to were not imposed after the plea bargain had been accepted, but were accepted as ‘an integral part of the bargain itself ”) (citations omitted).

Quarterman ... teaches that there is nothing inherently wrong with making the agreed-upon sentence contingent upon the defendant’s not committing another offense while at liberty and appearing at sentencing as ordered.

Bennett v. State, 858 So.2d 1251, 1252 (Fla. 5th DCA 2003). See id. at 1252-53 (indicating that, where a court-approved plea agreement contains conditions that subsequent events trigger, the defendant “and the court [can be viewed as having] entered a valid modification of the plea agreement ... authorizing the court] to impose the sentence it did,” even though more severe than the sentence the plea agreement originally called for).

While free on bond, after his plea had been accepted but before he was sentenced, Mr. Mack was arrested on charges of battery. After an evidentiary hearing at which both sides presented evidence, the trial court found probable cause to believe he had committed the battery, so violating the plea bargain condition. On that account, the trial court concluded it was no longer bound to impose the thirty-eight-month sentence originally negotiated, and subsequently sentenced him to eight years’ imprisonment.

Petitioner’s judgment and sentence were affirmed on direct appeal, on August 11, 2005. Mack v. State, 908 So.2d 1061, 1061 (Fla. 1st DCA 2005). He filed the present petition for writ of habeas corpus on August 9, 2006, claiming that counsel on the direct appeal was ineffective. See Fla.R.App. P. 9.141(c)(4)(B) (2006) (“A petition alleging ineffective assistance of appellate counsel shall not be filed more than 2 years after the conviction becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.”).

Petitioner argues that Blakely and Ap-prendi require relief because the trial judge, not a jury, engaged in factfinding which became the basis for imposing an eight-year sentence, instead of the thirty-eight-month sentence he agreed to in the plea bargain. At issue is whether Blakely and Apprendi lay down a federal constitutional imperative, not whether empanelling a new jury for sentencing in a non-capital case is currently authorized under state law. See generally Galindez v. State, 955 So.2d 517, 527, 2007 WL 471164 (Fla. Feb. 15, 2007) (Cantero, J., concurring) (“To remedy violations of Apprendi and Blakely, we would be entirely justified in adopting a procedure for the empanelling of new juries on resentencing.”).

Preliminarily, the State contends that the issue was not preserved by appropriate objection in the trial court, and that appellate counsel cannot, for that reason, be faulted for failing to raise the issue. See Davis v. State, 928 So.2d 1089, 1127 (Fla.2005) (“Generally, appellate counsel cannot be ineffective for failing to present claims which were not preserved due to trial counsel’s failure to object.”). The State’s preservation argument lacks force here.

Even if not raised adequately by trial counsel, an Apprendi claim could have been presented in a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) at any time “before the party’s first brief is served.” Fla. R.Crim. P. 3.800(b)(2) (2004). See, e.g., Gisi v. State, 848 So.2d 1278, 1282 (Fla. 2d DCA 2003) (“Although the Apprendi issue was not raised at sentencing by trial counsel, appellate counsel could have preserved the issue for appellate review by filing a motion to correct a sentencing error in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).”); Arrowood v. State, 843 So.2d 940, 941-42 (Fla. 1st DCA 2003) (reversing because appellant was entitled to relief under Apprendi when the claim was raised during the pen-dency of the appeal in a Rule 3.800(b)(2) motion). Since appellate counsel could have preserved the issue, it is no defense to petitioner’s claim of ineffective assistance that appellate counsel (like trial counsel) failed to do so.

The Court explained in Blakely “that the ‘statutory maximum’ for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531.

In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority.

Id. at 303-04, 124 S.Ct. 2531 (quotation marks and citation omitted). The maximum penalty prescribed by statute for the second degree felony petitioner committed and pleaded guilty to is fifteen years. The trial court did not go beyond this “prescribed statutory maximum” when it imposed an eight-year sentence. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

Petitioner was sentenced after the United States Supreme Court had decided both Apprendi and Blakely. Cf. Hughes v. State, 901 So.2d 837, 838 (Fla.2005) (“[W]e hold that Apprendi does not apply retroactively.”) (emphasis omitted). But petitioner’s argument founders because a sentence violates due process under Apprendi and Blakely only when it exceeds the “prescribed statutory maximum.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

Apprendi and Blakely deal with the prerogatives of judges vis-a-vis juries, and stake out ground onto which the judge cannot intrude, without impermissibly adulterating the right to trial by jury. But it has never been held that parties can impose a cap on the length of a sentence that the sentencing judge is not free to reject in the sound exercise of judicial discretion. In Rollman v. State, 887 So.2d 1233, 1235 (Fla.2004), our supreme court held that a trial judge may “alter” a plea agreement at any time before sentence is imposed.

We continue to agree that a trial court retains the authority to alter a prior plea arrangement up until the time sentence is imposed, so long as the trial court provides the defendant an opportunity to withdraw any plea that was entered in reliance on the promised sentence. It does not matter whether the judge simply changed his mind, or whether there was a misunderstanding.

Id. The Rollman court also approved this court’s ruling that “the defendant was not entitled to specific performance of the [plea] agreement, but was limited to withdrawing his plea.” Id. See also Santobello, 404 U.S. at 262-63, 92 S.Ct. 495 (leaving to state courts whether, when a plea agreement is breached, to require “specific performance of the agreement on the plea ... or ... the opportunity to withdraw [the] plea”). In any event, a sentence to which the parties agree in a plea bargain is not a “prescribed statutory maximum.”

In sum, petitioner argues that once the trial court accepted a plea predicated on the plea agreement, it was bound not to exceed the sentence agreed upon, without a trial by jury. But this ignores the thrust of the plea agreement taken as a whole, and finds no support in any of its individual provisions. While the State is unquestionably bound by any plea agreement that induces a plea of guilty or nolo contendere, see generally Santobello, 404 U.S. at 262, 92 S.Ct. 495 (holding that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”), so is the defense. Quarterman, 527 So.2d at 1382. The requirements of Apprendi and Blakely do not come into play because the “prescribed statutory maximum” is not at issue.

The petition for writ of habeas corpus (styled petition for habeas corpus relief) is denied.

BARFIELD and POLSTON, JJ., concur.

      . If petitioner's view were correct, all conditions in Quarterman plea agreements could lead to jury trials on whether the condition in the plea agreement was violated, including even whether the defendant failed to appear at the sentencing hearing. See generally Quarterman v. State, 527 So.2d 1380, 1381 (Fla.1988). Plea bargains are designed to avoid, not to foment jury trials. See Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (noting that, if all criminal cases were tried, “the States and the Federal Government would need to multiply by many times the number of judges and court facilities”). If a trial must take place, moreover, some might argue that it would be preferable to try the offense charged, instead of a tangential question which does not affect the statutorily prescribed maximum sentence to which a defendant is subject.

      . In the plea agreement, the petitioner agreed to be sentenced as an habitual offender. At sentencing, however, the State withdrew the notice of intent to classify the petitioner as an habitual offender.

      . The petitioner does not (and did not below) seek to withdraw his plea. He is seeking specific performance.


text:
    Musa SHABAZZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5538.
    District Court of Appeal of Florida, First District.
    March 26, 2007.
    Rehearing Denied May 8, 2007.

      Musa Shabazz, pro se, Petitioner.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

After his conviction for attempted first-degree murder, an appeal was taken to this court of the judgment and sentence of Musa Shabazz. Counsel argued on appeal that the verdict was not supported by the evidence, a jury instruction issue, and the existence of an error in the judgment regarding the degree of the crime. This court remanded the cause to the trial court for correction of the judgment but otherwise affirmed. Shabazz v. State, 931 So.2d 224 (Fla. 1st DCA 2006).

Shabazz now raises a claim of ineffective assistance of appellate counsel, arguing that counsel failed to raise another jury instruction issue which would have entitled him to a new trial. The jury was instructed that it should find the defendant guilty if it found the state proved that he and/or a co-defendant acted in a certain manner. Appellate courts of this state have found this type of jury instruction to be reversible and fundamental error. Davis v. State, 895 So.2d 1195 (Fla. 2d DCA 2005); Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005). This court, however, has never directly addressed the issue and, shortly after petitioner’s direct appeal became final, the Fourth District decided Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006). There, the court disagreed with the “fundamental and reversible” approach to the problem taken by Davis and Cabrera and found that the appellant was not entitled to relief under the circumstances of his offense and trial. Conflict was certified and the cause is now before the Florida Supreme Court in case number SC06-2235.

The issues for this court are: “first, whether the alleged omissions [of appellate counsel] are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986).

We agree with petitioner that his appellate counsel was ineffective for failing to raise the jury instruction issue on direct appeal in light of the existence of cases such as Davis and Cabrera at the time the brief was filed. However, we find that the appropriate remedy is a new appellate proceeding to review the issue, rather than ordering a new trial at this time. See Barnes v. State, 932 So.2d 589 (Fla. 5th DCA 2006); Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006); Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003). Accordingly, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal, upon issuance of mandate in this cause. If Shabazz qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

PETITION GRANTED.

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


author: ROTHENBERG, Judge.

text:
    Enrique CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3068.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Rehearing Denied May 9, 2007.
    Enrique Castro, in proper person.
    Bill McCollum, Attorney General, and Michele Samaroo, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Enrique Castro, appeals the trial court’s denial of his motion to correct sentencing errors filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and his motion for rehearing. As we conclude that the defendant’s motions in case numbers 00-37367 and 01-19726 are well-taken, we reverse as to those two cases and remand for proceedings consistent with this opinion. As to case number 04-12225 the record conclusively refutes the defendant’s claims. We, therefore, affirm the trial court’s orders in that case.

On May 25, 2001, the defendant pled guilty to the charges in case number GO-37367 and was sentenced to probation. While on probation, the defendant committed several new criminal offenses which resulted in the filing of an affidavit for violation of probation in ease number 00-37367 and a new information charging him with these new offenses in case number 01-19726.

On August 9, 2001, the defendant entered a plea of guilty to the charges in case number 01-19726; admitted to violating his probation in case number 00-37367; was adjudicated guilty of the charges in both cases; and was sentenced to two years prison followed by three years of probation on each case. The trial court ordered that the sentences run concurrent and that the defendant receive forty-seven days credit for the time served as to each case.

After completing the incarcerative portion of his sentences, and while still on probation in both cases, the defendant was arrested and charged with robbery and resisting without violence in case number 04-12225; affidavits for violation of probation were filed; and the State filed a motion to seek an enhanced penalty as an habitual violent offender in case number 04-12225.

On October 6, 2004, the defendant pled guilty to the new charges and admitted to violating his probation in the two probation cases and received a sentence of five years prison on each (00-37367 and 01-19726) and five years prison as an habitual violent offender in case number 04-12225. Each sentence was ordered to run concurrent. The plea colloquy reflects that the trial court awarded the defendant credit for time served in case number 04-12225, calculated from the day of his arrest on April 20, 2004, to October 6, 2004, the day of the defendant’s plea. In case numbers 00-37367 and 01-19726, the trial court ordered that the defendant receive credit for the two years he served in prison.

As the record reflects that the defendant received the correct credit for time served ordered by the trial court in case number 04-12225 (170 days), we affirm the denial of the defendant’s 3.800(a) motion in that case.

It appears, however, that the defendant only received credit for 170 days, not two years as ordered by the trial court in case numbers 00-37369 and 01-19726. While the plea transcript reflects that the trial court awarded the defendant credit for two years on these two cases based upon the defendant’s counsel’s representations, which may be in conflict with the time the defendant actually served on the two-year sentences imposed, the trial court failed to attach anything to its order that reflects either its investigation or findings on the issue. We, therefore, reverse and remand for proceedings consistent with this opinion in case numbers 00-37367 and 01-19726.

Case number 04-1225, affirmed.

Case numbers 00-37367 and 01-19726 reversed and remanded.


text:
    Homer SCRUGGS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2723.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Rehearing Denied April 24, 2007.
    Joseph W. Gibson, Ft. Lauderdale, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Albarran v. State, 890 So.2d 1267 (Fla. 5th DCA 2005).


text:
    Mark Anthony FRENCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0742.
    District Court of Appeal of Florida, First District.
    March 29, 2007.
    Rehearing Denied May 8, 2007.
    Mark Anthony French, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Sherman Lavell HINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0682.
    District Court of Appeal of Florida, First District.
    April 2, 2007.
    Rehearing Denied May 8, 2007.
    Sherman Laveli Hinson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    Thomas L. WILLS, Jr., Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 1D06-3439.
    District Court of Appeal of Florida, First District.
    April 4, 2007.

      G. “Hal” Johnson, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Lynn C. Hearn, Deputy Solicitor General, Tallahassee, for Appellee.
   PER CURIAM.

Thomas Wills appeals the final order of the Florida Elections Commission (FEC), arguing the FEC inappropriately rejected or modified findings of fact made by the Administrative Law Judge. The FEC argues Wills lacks standing to bring this appeal because, ultimately, the Final Order gave Wills the relief he sought, dismissal of the charges. We conclude Wills has standing to bring this appeal, and that the FEC erred by rejecting or modifying the ALJ’s findings of fact. Accordingly, we reverse.

Wills is a law enforcement officer who has served 23 years with the West Palm Beach Police Department (WPBPD), and has served as a lieutenant for over three years. In March, 2005, the FEC entered an order of probable cause charging Wills with two violations of Florida’s election laws.

Count 1 alleged Wills asked employees under his supervision to attend a political rally for Ric Bradshaw, a candidate for Palm Beach County Sheriff, and count 2 alleged Wills threatened a police officer because the officer had, a week earlier, made a comment about joining a group of Bradshaw’s opponents at a rally. In both counts, the FEC charged Wills “used his official authority or influence for the purpose of attempting to coerce or influence another person’s vote or affecting the results of an election” in violation of section 104.31(l)(a), Florida Statutes. Wills petitioned for a formal administrative hearing, and the matter was referred to an ALJ.

Subsequently, the ALJ entered a Recommended Order finding Wills committed no wrongdoing, and recommending the charges be dismissed. In essence, the ALJ found Wills neither intended to nor did he use his influence to coerce anyone to attend the Bradshaw rally, and Wills’ purpose in calling a subordinate officer into his office was to speak with him for having made disrespectful comments to Wills while Wills was briefing his squad, and reminding the officer that he had been disrespectful during squad briefings on more than one occasion. The ALJ’s findings were supported by competent, substantial evidence.

Ultimately, the FEC entered a Final Order dismissing the charges. However, in doing so, it rejected or modified portions of the ALJ’s findings of fact and substituted its own findings, which contradicted those of the ALJ. To reach its alternate findings, the FEC impermissibly reweighed the evidence and made inferences contrary to those reached by the ALJ. See e.g., Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277 (Fla. 1st DCA 1985) (holding agency may not reject an ALJ’s findings of fact, which are supported by competent, substantial evidence, nor is it authorized to reweigh the evidence, resolve conflicts in testimony, draw inferences, judge eredibility of witnesses, or otherwise interpret the evidence).

Based on its substituted findings, the FEC concluded Wills committed the charged offenses, but that the FEC was required to dismiss the charges against him based on a technicality (i.e., this court’s issuance of Fugate v. Fla. Elections Comm’n, 924 So.2d 74 (Fla. 1st DCA 2006)). As Wills correctly argues, the FEC’s substituted findings place in question Wills’ professional reputation and good moral character, and leave him vulnerable to investigation and discipline before the Criminal Justice Standards and Training Commission or through WPBPD internal proceedings.

The Criminal Justice Standards and Training Commission is the professional board that regulates law enforcement officers. See § 943.1395, Fla. Stat. Section 943.1395 establishes standards for law enforcement employment, certification, revocation, suspension and investigation. See id. Section 943.1395(5), Florida Statutes, provides:

(5) The employing agency must conduct an internal investigation if it has cause to suspect that an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7). If an officer is not in compliance with, or has failed to maintain compliance with, s. 943.13(4) or (7), the employing agency must submit the investigative findings and supporting information and documentation to the commission in accordance with rules adopted by the commission. The commission may inspect and copy an employing agency’s records to ensure compliance with this subsection.

Id. (emphasis added). Section 943.1395(7), Florida Statutes, provides:

(7) Upon a fínding by the commission that a certifíed officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties.

Id. (emphasis added). The penalties include: revocation of certification; suspension of certification not to exceed 2 years; placement on probationary status not to exceed 2 years, subject to terms and conditions imposed by the Commission; successful completion of specified training; and/or issuance of a reprimand. See id.

In sum, if the FEC’s modified findings were permitted to stand, there will be a Final Order finding Wills willfully used his position to coerce or influence another person’s vote, including threatening a subordinate, but he escaped a disciplinary action due to a technicality. This Final Order would give the WPBPD “cause to suspect” Wills had not maintained good moral character, which is a statutory requirement for his continued certification and employment. Upon “cause to suspect,” the WPBPD would be required to conduct an investigation. Logic would suggest it would consider the findings contained in the Final Order in reaching its conclusion as to whether Wills had failed to maintain “good moral character.” If the investigation concludes he did not maintain good moral character, Wills is subject to imposition of any of the penalties discussed above.

Clearly, the modified findings contained in the FEC’s Final Order would provide a basis for future disciplinary proceedings against Wills. Consequently, although the Final Order dismissed the charges against him, he is adversely affected by the FEC’s modified findings, and has standing to institute this appeal. See Rabren v. Dep’t of Prof'l Reg., 568 So.2d 1283, 1288 (Fla. 1st DCA 1990) (holding pilot had standing to appeal final order even though charges were dismissed; agency’s statements in conclusions of law would be used against him as precedent in later proceeding or as evidence of incipient policy); c.f., Bodenstab v. Dep’t of Prof'l Reg., Bd. of Medicine, 648 So.2d 742 (Fla. 1st DCA 1995) (holding doctor had no standing to appeal favorable final order, which left his reputation intact, and where a reasonable reader could only conclude doctor’s reputation was as good as any of the Florida doctors he had been invited to join).

In conclusion, each of the ALJ’s findings rejected by the FEC were supported by competent, substantial evidence. The FEC reversibly erred by rejecting these findings and substituting their own. That portion of the FEC’s Final Order that rejects or modifies the ALJ’s findings is REVERSED, and the case REMANDED for the FEC to reinstate the ALJ’s factual determinations in their entirety.

REVERSED and REMANDED for proceedings consistent with this opinion.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


author: COLBATH, JEFFREY, Associate Judge.

text:
    Gary COULTAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D05-1227, 4D05-4059.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.
    Rehearing Denied May 22, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   COLBATH, JEFFREY, Associate Judge.

Gary Coultas, the Defendant below, was charged with possession of a false driver’s license or identification card, grand theft, petty theft, and carrying a concealed weapon. At the time of these new offenses, Coultas was on probation, and these new charges formed the basis for an affidavit of violation of probation. Coultas filed two motions to suppress evidence. The initial motion to suppress challenged the legality of the stop. In the second motion, the Defendant argued the physical evidence was subject to suppression because it was found as the product of an inventory search following his arrest and his arrest was not supported by probable cause. Specifically, police arrested the Defendant for carrying a concealed weapon and the Defendant argued that the item found on his person was a butter knife that did not meet the statutory definition of a “concealed weapon.” The motions to suppress were denied and the Defendant pled no contest to the new charges and to the VOP, reserving his right to appeal the denial of the latter motion to suppress. In this consolidated appeal from both the case involving the new, substantive criminal charges and the VOP, the Defendant challenges the trial court’s ruling on the latter motion to suppress. We find merit in the Defendant’s argument and reverse the resulting convictions in both the substantive, criminal case and the VOP case.

During the hearings on the motions to suppress, the following facts were established. On February 10, 2004, Detective Kevin Scott, who was in plain street clothes in an unmarked car, observed the Defendant roll slowly past a house and then run a stop sign before making a U-turn. Detective Scott stopped the vehicle and, as he approached, observed the Defendant “tucking” things down behind the seat. The Defendant twice ignored Detective Scott’s command to stop, whereupon, the detective ordered him from his vehicle. As Coultas exited the vehicle, Detective Scott observed approximately one-quarter to one-half inch of the tip of a silver knife sticking out of his front pocket. The detective retrieved the knife and arrested the Defendant for carrying a concealed weapon. An inventory search pursuant to the arrest yielded a fake driver’s license and stolen SunPass transponders.

The issue in this appeal is whether the knife recovered from Coultas was a “concealed weapon” as contemplated by section 790.01, Florida Statutes (2004). The statute provides “a person who carries a concealed weapon ... on or about his or her person commits a misdemeanor of the first degree.” § 790.01(1). An officer may arrest an individual for carrying a concealed weapon without obtaining a warrant provided the officer has “probable cause to believe that the offense of carrying a concealed weapon is being committed.” § 790.02, Fla. Stat.

Before addressing this issue, we note that there are no disputed factual issues concerning this knife and, therefore, there have been no factual findings made for which the trial court is entitled to deference. We therefore review the denial of the motion to suppress de novo. See, e.g., State v. Weiss, 935 So.2d 110, 115 (Fla. 4th DCA 2006). The knife in question is part of the appellate record and we have examined it. It is an ordinary, metal table knife with a rounded blunt end with the minutest degree of serration.

A “concealed weapon” is “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon.” § 790.001(3)(a). At the time of Coultas’s February 2004 crimes, the term “weapon” was defined as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.” § 790.001(13), Fla. Stat. Clearly, this particular table knife is not metallic knuckles, slungshot, billie, tear gas gun, chemical weapon, or other device. The only two ways this knife could be a “concealed weapon” is if it is a “dirk” or “other deadly weapon.”

A dirk is a weapon designed for stabbing. It has been defined as having “ ‘a pointed blade, four or five inches long, with a small handle. It is worn within the vest, by which it is completely concealed.’ ” Garcia v. State, 789 So.2d 1059, 1060 (Fla. 4th DCA 2001) (quoting Oxford English DiCtionahy 709 (Compact ed.1991)); see also Miller v. State, 421 So.2d 746 (Fla. 4th DCA 1982). The table knife in question is clearly not designed for stabbing nor is it well suited for that purpose. We hold that this knife is not a dirk. We note that other types of ordinary table knives could fit the definition of a dirk. See, e.g., Garcia, 789 So.2d at 1061-61; Caldwell v. State, 920 So.2d 727, 730 (Fla. 5th DCA 2006); State v. Walthour, 876 So.2d 594, 597 (Fla. 5th DCA 2004).

The question that remains is: Does this knife qualify as an “other deadly weapon?” There are two ways in which an item can be found to meet the statutory definition of a “deadly weapon.” First, the item can qualify as a deadly weapon if it “will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction.” Robinson v. State, 547 So.2d 321, 323 (Fla. 5th DCA 1989); see also Holley v. State, 877 So.2d 893, 896 (Fla. 1st DCA 2004). The knife in question was neither designed nor constructed to cause death or great bodily harm, nor is it well suited for that purpose. It was designed to cut prepared food on a plate.

The second way an item can be deemed a deadly weapon is if it is used in a threatening manner. This could include any ordinary household item. See Robinson, 547 So.2d at 328; see also State v. Tremblay, 642 So.2d 64 (Fla. 4th DCA 1994). The record is clear that the knife was never displayed or used in a threatening manner. Here, the knife in question fails to meet either definition of a deadly weapon.

Based on the holdings above, we reverse the trial court’s denial of Coultas’s motion to suppress. We remand this case to the trial court for further actions consistent with this opinion.

Reversed and Remanded.

STONE and TAYLOR, JJ„ concur.

      . We note that, effective July 1, 2006, and after the dates relevant for purposes of this appeal, chapter 790’s definition of the term "■weapon” was amended and now provides: " 'Weapon' means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” § 790.001(13), Fla. Stat. (2006).


text:
    James MORENCY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3183.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    James Morency, in proper person.
    Bill McCollum, Attorney General, Orlando, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

James Morency appeals from two orders rendered on the same day denying his petitions filed pursuant to Florida Rule of Criminal Procedure 3.800(a), the first summarily denying a motion to correct an illegal sentence and the second summarily denying a motion for jail credit. We consider both and reverse them.

Morency presented a facially valid claim that he is entitled to 364 days of credit for time spent in Miami-Dade county jail prior to his sentencing in the current cases. The trial court summarily denied the motion but failed to attach any record substantiating its decision. Moren-cy also claims that his twenty year sentence upon violation of probation is illegal. Once again, the order summarily denying relief was not accompanied by any record conclusively showing that the appellant is not entitled to any relief. On appeal from a summary denial of a motion under Florida Rule of Criminal Procedure 3.800(a), this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A) and (D).

Because the record now before us fails to make the required showing we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is 1) not entitled to the jail credit for time served as he claims, and 2) that his 20-year sentence upon violation of probation is not illegal.

Reversed and remanded.

      . Morency seems to suggest in his petition to correct an illegal sentence that the trial court could not sentence him upon violation of probation because the probation violation offense was nolle prossed by the state. He is incorrect. A new criminal offense can constitute a probation violation even if nolle prossed by the state. State v. Jenkins, 762 So.2d 535 (Fla. 4th DCA 2000); see also Swilley v. State, 781 So.2d 458 (Fla. 2d DCA 2001)(absent evidence of a substantive probation violation, summary denial of rule 3.800 petition reversed for attachment of record to establish that defendant committed a substantive violation).


text:
    John West DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2393.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    John West Davis, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

John West Davis appeals from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. We reverse and remand.

Perhaps the wording of the previous opinion from this court wasn’t sufficiently clear. This court previously reversed and remanded for “further proceedings” on Davis’ claim that his attorney did not convey a plea offer to him, and the trial court summarily denied relief again. On appeal from a summary denial this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. Fla. R.App. P. 9.141(b)(2)(A) and (D). Because the record before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief regarding Davis’s claim that his attorney did not convey a plea offer to him. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that Davis is not entitled to any relief.

Reversed and remanded for further proceedings.

      . Davis v. State, 895 So.2d 1227 (Fla. 3d DCA 2005).


text:
    Richard GALARZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-229.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Richard Galarza, in proper person.
    Bill McCollum, Attorney General, Orlando, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Richard Galarza seeks to reverse a final order denying his petition to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part. We reverse and remand only as to the defendant’s claim that upon re-sentencing on violation of probation he was entitled to 406 days of credit for time served.

On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App.P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief as to his claim of entitlement to jail credit.

As to the defendant’s claim that certain gain time should be restored, we affirm the order denying relief. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999)(to contest award or loss of gain time inmate must first exhaust administrative remedies through the DOC and if necessary seek a writ of mandamus against DOC in the circuit court).

Affirmed in part, reversed and remanded in part.


text:
    Jeffrey Neil COHEN, Appellant, v. Roni Friedman COHEN, Appellee.
    No. 4D06-3927.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellant.
    Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellee.
   PER CURIAM.

Jeffrey Neil Cohen (husband) appeals a non-final order on temporary relief in his dissolution of marriage action against Roni Friedman Cohen (wife). We affirm.

The trial court found that the wife was in need of temporary support and the husband had the ability to pay. The trial court ordered the husband to: (1) pay the wife $3,500 per month in temporary support, (2) pay other expenses totaling $11,640 per month, (3) reinstate the credit cards that the wife previously used and pay the charges, (4) maintain health insurance for the wife’s benefit and pay the cost of the wife’s prescriptions, (5) maintain all insurances currently in effect, and (6) pay $100,000 in attorney’s fees to the wife’s counsel. Moreover, the wife received exclusive use and possession of the marital residence in Florida, continued access to and use of the parties’ Maine warehouse, and exclusive use and possession of a 2003 Lincoln Navigator. The husband received exclusive use and possession of the parties’ Maine residence.

In Stern v. Stern, 907 So.2d 701 (Fla. 4th DCA 2005), this court explained:

The criteria for an award of temporary alimony are the same as for permanent alimony, namely, the need of the spouse requesting the alimony and the ability of the other spouse to pay. Mitzenmacher v. Mitzenmacher, 656 So.2d 178, 180 (Fla. 3d DCA 1995). In considering temporary alimony, it is well-settled that “temporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.” Pedraja v. Garcia, 667 So.2d 461, 462 (Fla. 4th DCA 1996). Again, in Wolfson v. Wolfson, 455 So.2d 577, 579 (Fla. 4th DCA 1984), we reiterated this standard, stating “[t]he trial court has broad discretion in deciding matters of temporary alimony ... and we will not disturb that discretion in the absence of a showing that no reasonable man would take the view adopted by the trial court.”

Stern, 907 So.2d at 702. Our review of the record reveals that the trial court did not abuse its discretion.

Affirmed.

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: WELLS, J.

text:
    Luis Manuel GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1843.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Luis Manuel Gutierrez, in proper person.
    Bill McCollum, Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, LAGOA, JJ.
   WELLS, J.

Luis Manuel Gutierrez appeals from an order dismissing his amended motion for post conviction relief, without prejudice, following remand from this court. We affirm dismissal of Gutierrez’ motion but remand for entry of dismissal with prejudice.

In November 2001, Gutierrez filed a rule 3.850 post conviction motion in which he raised a number of grounds for relief. This motion was followed by an amendment which added a number of new grounds. For the most part, Gutierrez’ claims were not cognizable in a rule 3.850 motion. He did, however, make several allegations that could constitute ineffective assistance of counsel claims, including a claim that his attorney failed to investigate and present alibi evidence. Although an evidentiary hearing was ordered on Gutierrez’ motion, his request for appointment of counsel was denied.

After an evidentiary hearing, Gutierrez’ motion was denied, and he was held in contempt for being untruthful in his motion. On appeal, we affirmed denial of Gutierrez’ 3.850 motion with the exception of his claims “of alibi, ineffective assistance of trial counsel, and the claim of an ex parte contact regarding the motion.” Gutierrez v. State, 854 So.2d 218, 219 (Fla. 3d DCA 2003). We also reversed the contempt order and remanded for a new hearing on both matters “with the assistance of counsel.”

On remand, counsel was appointed to represent Gutierrez, another evidentiary hearing was held, and testimony was adduced on all of Gutierrez’ remaining claims. During that hearing, Gutierrez testified that he did not read, have read to him, or sign either the 3.850 motion or the affidavit attached to it. At the conclusion of the hearing, the trial court dismissed Gutierrez’ motion without prejudice because he had not signed the motion under oath as required. See Gorham v. State, 494 So.2d 211, 212 (Fla.1986) (confirming that the purpose of the 3.850 oath requirement was to prevent false allegations of fact without the fear of a perjury conviction).

While we agree that this failure makes Gutierrez’ motion subject to dismissal, usually without prejudice, in this case, dismissal should have been with prejudice. This court has already affirmed denial of most of Gutierrez’ claims on the merits. Pursuant to our mandate, Gutierrez has now had a full evidentiary hearing on his remaining claims. During this hearing, at which Gutierrez was represented by counsel, Gutierrez, his trial counsel, and his alibi witness testified. The transcript of that hearing conclusively demonstrates that Gutierrez’ remaining claims are wholly without merit. On this record, no additional hearings on the claims made in his current motions can be justified. See Betts v. State, 792 So.2d 589, 590 (Fla. 1st DCA 2001) (“A claim of ineffective assistance of counsel will warrant an evidentia-ry hearing only where the movant alleges ‘specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.’ Roberts v. State, 568 So.2d 1255, 1259 (Fla.1990).”).

We therefore affirm dismissal of Gutierrez’ 3.850 motion but remand for modification of the order to state that the dismissal is with prejudice.

      . It appears from Gutierrez's testimony that these documents were signed by the jailhouse paralegal who prepared these documents for him.

      . See Groover v. State, 703 So.2d 1035, 1038 (Fla.1997) (“Failure to meet the oath requirement warrants dismissal of the motion without prejudice.”); see also Desouza v. State, 874 So.2d 729, 730 (Fla. 3d DCA 2004) (citing Groover and concluding that the trial court properly ruled that the defendant who had failed to sign and swear his post-conviction motion should be afforded an opportunity to refile).


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    Eric D. TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2892.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Eric D. Taylor, in proper person. Bill McCollum, Attorney General, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

SCHWARTZ, Senior Judge

(concurring).

I concur as required by Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007)(opinion granting clarification).


text:
    Enrique LOPEZ-MENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1492.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Enrique Lopez-Mendez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Downs v. State, 616 So.2d 444 (Fla.1993).