author: STONE, J.

text:
    JP MORGAN CHASE BANK as Trustee for the Home Equity Trust Series 2003-7, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Royale Gardens Condominium Association, Inc., Neera Persad, and Home Equity Loss Prevention Corp., Appellees.
    Nos. 4D05-478, 4D05-2309.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Brian L. Rosaler of Popkin & Rosaler, P.A., Deerfield Beach, for appellant.
    David A. Kupperman of Katzman <& Korr, P.A., Fort Lauderdale, for Appellee-Home Equity Loss Prevention Corp.
   STONE, J.

JP Morgan challenges the trial court’s distribution of surplus proceeds in a foreclosure action and its failure to vacate or reconsider the distribution order.

We reverse, as the trial court should have vacated the order when it became aware of the unsatisfied second mortgage, the mortgagee’s lack of agreement with the disbursement, and the order’s adverse impact on the lienholder’s rights. Further, the trial court’s decision is not supported by the evidence.

Upon foreclosure of a first mortgage, the defendants included property owner Neera Persad; the initial second mortgagee, Aames Funding Corporation (Aames); and Royale Gardens Condominium (the condo). The complaint recognized that Aames “may claim some interest in the subject real property by virtue of that Mortgage recorded at Official Records Book 35988, Page 147 of the Public Records of Broward County, Florida, however, whatever interest asserted by virtue of said instrument is subordinate and inferior to the lien of the mortgage being foreclosed herein.”

Persad and the condo answered; Aames, the junior lienholder, defaulted. JP Morgan is a successor to Aames’ interest. JP Morgan’s standing is not at issue.

Following the summary judgment of foreclosure, the property was sold to a third party and funds in excess of U.S. Bank’s entitlement were filed with the court registry. Home Equity Loss Prevention Corp. (HELP), a non-party to the action, then filed a motion for disbursement from court registry, attaching a partial assignment of Persad’s interest in the surplus funds. The motion states that HELP owns the equity of redemption and that one or more of the parties on the attached service list may claim a superior interest in the surplus but have not yet filed any paper seeking disbursement. Only the condo filed a motion to disburse.

Attorneys for HELP and/or the condo then provided the trial court with an “agreed” order directing the clerk to disburse sums from the court registry. The only “hearing” held on this order was at motion calendar. The trial court entered the order which resulted in disbursement to the condo for unpaid fees and assessments and attorney’s fees associated with their collection, with Persad to receive 70% of the balance ($11,843.74), and the remaining 30% to go to HELP ($5,075.89). There is no mention in the “agreed” order of the Aames second mortgage that was acknowledged in the complaint, HELP’S motion, and the final judgment. The order was entered on December 22, 2004.

On January 18, 2005, JP Morgan, as Aames’ assignee, filed an emergency motion to vacate the agreed order and a motion to determine priority of liens.

JP Morgan submitted proof that it held the unsatisfied second mortgage. At the hearing on JP Morgan’s motions, the trial court recognized uncertainty in the law concerning the court’s obligation to seek out interest holders or parties who have defaulted. In this case, JP Morgan’s assignment from Aames had not yet been recorded, although the monthly payments had been paid by Persad to JP Morgan for some time.

The trial court decision denying relief to JP Morgan was based on its conclusion that Aames had been properly noticed pri- or to disbursement and that JP Morgan had failed to appear or even timely record its assignment, “that it sat on its rights.” In other words, the court determined priorities not based upon time of lien or proof of satisfaction, but on the fact of notice to JP Morgan’s assignor.

Without proof of satisfaction of the second mortgage, and even in the absence of an appearance, the funds should have been left in the court’s registry until the second mortgagee came forward to claim them or until proof of Appellees’ entitlement was presented to the court.

It is undisputed that Persad and HELP recognized that there was a junior lien-holder and that its second mortgage was not satisfied. Certainly, the foreclosure of the first did not extinguish the second; it merely transferred the lien from the property to the surplus funds that took its place. “After removal from the land, it [the lien] then attached to what had taken the place of the land in the eyes of the law, to wit, whatever remained as surplus after paying off the firát mortgage and costs.” Waybright v. Turner, 129 Fla. 310, 176 So. 424, 428 (1937). Whether the second was in Aames’ name or JP Morgan’s is of no consequence here. Rosen v. Dorn-Kothe, Inc., 126 Fla. 717, 171 So. 646, 648 (1936) (holding that surplus money arising from a sale of land under a decree of foreclosure stands in the place of the land itself in respect to liens thereon or vested rights therein); Meyer v. Bricklayers, Masons & Plasterers Union, 144 Fla. 401, 198 So. 78, 79 (1940) (affirming that the surplus funds stand in place of the land itself in respect to liens and/or vested rights therein).

This principle has been recognized as outweighing the doctrine of laches. In United States of America v. Sneed, 620 So.2d 1093 (Fla. 1st DCA 1993), the First District reversed disbursement to a property owner in favor of the lienholder, despite the fact that the funds had languished in the court’s registry for nine years.

The fact that an inferior lienholder defaults to the foreclosure of a senior lien does not open a door for others to claim a surplus without an evidentiary hearing to determine priorities. See Schroth v. Cape Coral Bank, 377 So.2d 50 (Fla. 2d DCA 1979) (holding that the trial court should have determined the interests of the property owners and the other defendants in a foreclosure suit by an eviden-tiary hearing, irrespective of whether they filed responsive pleadings). Clearly, a surplus is payable to junior lienholders in accordance with their priority and “only after the liens have been satisfied may any surplus be disbursed to the owner of the equity of redemption.... ” General Bank, F.S.B. v. Westbrooke Pointe, Inc., 548 So.2d 736, 736 (Fla. 3d DCA 1989). In Citibank, FSB v. PNC Mortgage Corporation, 718 So.2d 300 (Fla. 2d DCA 1998), the Second District reversed an order disbursing surplus to inferior interests without first determining the priorities and the amounts due to remaining junior lienhold-ers, notwithstanding a lienholder’s unexcused failure to attend a disbursement hearing. The court said, “[i]nferior junior lienholders have no equitable claim to the surplus of proceeds until superior junior lienholders have had their claims satisfied.” Id. It is the obligation of the trial court, under such circumstances, to weigh and determine the competing claims by priority. In Golindano v. Wells Fargo Bank, 913 So.2d 614, 615 (Fla. 3d DCA 2005), the Third District recognized that before any foreclosure surplus funds can be disbursed, the trial court must first determine priorities of lienholders. A lien-holder does not waive any right to the surplus simply because it allowed a default to be entered against it. See also Garcia v. Stewart, 906 So.2d 1117 (Fla. 4th DCA 2005).

We note that the body of law requiring an evidentiary hearing to determine priorities is not inconsistent with the requirement in other instances that a plaintiff establish entitlement to property or damages by evidence, at least by affidavit and, in the event of any apparent dispute, by evidentiary hearing or trial.

We recognize that the better practice is for a junior lienor to appear and to file a cross-claim. Nevertheless, the issue is one of property rights. There is no authority for the proposition that the funds cannot stay in the court’s registry until the trial court determines that junior lienholders are satisfied prior to disbursement to a mortgagor or mortgagor’s assigns. Therefore, the order is reversed, and we remand for further proceedings.

FARMER and MAY, JJ., concur.

      . The condo’s claim is not disputed, and they are not parties to this appeal.


source: Caselaw Access Project

author: KLEIN, J. FARMER, J.,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Christian COLITTO and Gisselle Somoza, Appellees.
    Nos. 4D05-635, 4D05-704.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Jose Izquierdo of Bradford M. Cohen & Associates, Fort Lauderdale, for appellee Somoza.
    Michael A. Gottlieb, Fort Lauderdale, for appellee Colitto.
   KLEIN, J.

The issue we are resolving is whether two trash pulls, which revealed cannabis, provided probable cause for issuing a search warrant for defendants’ home. The trial court concluded that the search warrant should not have been issued and suppressed the evidence. We reverse.

The affidavit on which the search warrant was based reflected that the Sunrise Police Department’s narcotics unit had received information that Colitto and Somoza, who resided at a specified address, were involved in the trafficking of cocaine and cannabis. The affidavit did not show the source of the information. The officer conducted two trash pulls from curbside garbage cans, seven days apart, both of which revealed cannabis residue, seeds and stems. The trash bags from both pulls also contained mail addressed to defendants’ residence. The search warrant was issued one week after the second trash pull and produced evidence which resulted in charges of trafficking in cocaine and possession of cannabis with intent to sell.

Defendants rely heavily on Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998); however, Raulerson is distinguishable in that there was only one trash pull in that case. We held that this was insufficient to indicate a fair probability that cannabis would be found in a search. We distinguished State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA 1983), in which it was held that an affidavit based on two separate trash pulls was sufficient for probable cause. In Jacobs there was information received from a confidential source, and two trash pulls three weeks apart, both of which revealed cannabis. The trial court suppressed and the fifth district reversed, explaining:

The fact that marijuana and cannabis seeds were found on two separate occasions within one month’s time suggests a continuing violation of the drug laws and indicates a “fair probability” that marijuana or cannabis would be found in the house. We conclude that the judge who issued the search warrant had a substantial basis for determining that probable cause existed and thus the court below erred in suppressing the evidence.

437 So.2d at 168.

Although in Raulerson we held that one trash pull based on an anonymous tip was insufficient, we have since found that a single trash pull combined with other information was sufficient. In Baker v. State, 762 So.2d 977 (Fla. 4th DCA 2000), an officer received an anonymous tip that cocaine was being sold in small clear plastic baggies tied with green twisties at the defendani/suspect’s home. The caller then met-with the officer in person. A single trash pull then revealed cut plastic straws and plastic baggies, both of which contained cocaine traces, and green twisties. We held, even though there was only one trash pull, the fact that the clear baggies and green twisties were found was consistent with the specific information from the caller, and that there was probable cause for the search. Similarly, in State v. Mayes, 666 So.2d 165 (Fla. 2d DCA 1995), there was only one trash pull, but the police and a citizen had observed traffic to and from defendant’s home at all hours. The court held that probable cause existed.

The dissent states that our standard of review is de novo. Where, as in this case, the only issue is the sufficiency of the facts set forth in an affidavit to support a search warrant, the standard of review was established in Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983):

Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” (citation omitted)

In addition, if the dissent is asserting that finding cannabis seeds and stems in the trash does not establish probable cause for trafficking in cannabis and cocaine, Gates does not require that specificity:

The task of the issuing magistrate is simply to make a practical commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place, (emphasis added.)

Gates, 462 U.S. at 238, 103 S.Ct. 2317. The issue before the magistrate was not whether there was probable cause that evidence of trafficking would be found, but whether there was probable cause that evidence of a crime would be found. See also § 933.18(5), Fla. Stat. (2003) (authorizing search warrants for private dwellings where “narcotics or drug abuse” laws are being violated).

Because the affidavit in this case did not describe the source of the information received by the police, we give it no more importance than an anonymous tip. We conclude, however, that this information and the two trash pulls within two weeks of the issuance of the warrant provided probable cause. Jacobs. We accordingly reverse the order of suppression.

STEVENSON, C.J., STONE, WARNER, POLEN, SHAHOOD, GROSS, TAYLOR, HAZOURI, and MAY, JJ., concur.

FARMER, J., dissents, in part II of which GUNTHER, J., concurs.

FARMER, J.,

dissenting.

I. Foreword,

Are words the author of our thoughts? If I casually use a term having a deprecatory or disparaging meaning to describe something, do I thereby unconsciously constrain my analysis of that act? Does human thought, as Gottlob Frege posed, depend on language? Or does it work another way? If our thoughts precede our words, is the outcome ordained by the words stating the thoughts? Do our linguistic symbols consciously correspond to internal mental preconceptions, or as Lieb-niz said, is language “the best mirror of the human mind”?

For me the answer to these inquiries is that, in some way, the words we use to characterize an idea signal our mental processes. Here in the opening sentence of the majority opinion, right off the bat, the outcome is foreshadowed — or shall I say betrayed — by the belittling term used to characterize the police conduct. Thus the ending is foretold.

The majority is not here considering the legal consequences of a police search and seizure. Oh no. For them this case involves only a trash pull. And if all that is involved is just a trash pull, well, we can see where this is going. A little old trash pull or two certainly isn’t going to have the legal significance of an out-and-out, warrantless police search of private property from a home. We all know the Fourth Amendment deals with searches, not pulls. And if a pull is not a search, it follows that not even a founded reasonable suspicion — and certainly no probable cause — is needed to validate it. Quod erat demonstrandum!

Pardon me if I cannot buy into this. To my mind, it is a pretty serious thing to have police making unfounded searches of a private citizen’s residential trash. Yes, I am aware that for Fourth Amendment purposes the Supreme Court thinks people have abandoned and have thus consented to a search of the solid waste they place outside their homes for the waste removal authorities. But the Supreme Court is appallingly mistaken if they think people do not regard even the waste placed for collection as very, very private. The placement on the curb reflects only that its use to the owner is over. It does not follow that the end of use means the end of privacy. Disposing of solid waste does not convey an intention to have the whole world — especially the police — searching and analyzing it. A homeless vagrant looking for food, maybe, but not the police. Technology may have made some things transparent to government eyes, but the natural expectation of privacy people have even in the used up material of their private lives should not yet be deemed a relic in some museum of lost values.

The power of the State to seize and search private trash without any legal basis seems to me but one more manifestation of Government’s long obsession with its residents’ pharmacological pursuits. In keeping with that obsession, this case adds one more compromise with our essential liberty of personal privacy, laying wager on a dream that Government might yet salvage something of its War on Drugs This mania of the last four decades has been a costly failure. As Prohibition did, it founders on the reality that many humans will crave and use forbidden substances, legal or not. Like other pickpockets in the crowd while the condemned ascends the guillotine, there will ever be those to supply these illicit apples for a price — no matter the penalties, even the loss of paradise. Yet we obstinately go on squandering even more weapons of mass deconstruction of personal liberties, and all in the name of a metaphor! We might as well expend law’s resources in a campaign to erase original sin. As a citizen, I am discouraged (if not surprised) that “trash pulls” mining for evidence of possible crimes are so fixed in the legal lexicon that Judges would find not even a founded suspicion necessary for such a search.

What follows, then, is the panel opinion I wrote in the husband’s case. It explains in conventional legal terms why I think these unfounded searches should not be used to convict either of these defendants.

II. Legal Analysis in Colitto

These cases were filed as separate appeals even though the co-defendants are husband and wife. The appeals were assigned to different panels of this court. As sometimes happens under our policy of random assignment, different panels arrived at conflicting outcomes, so the whole court took them up en banc. The panel decision in the husband’s case has now been rejected by a majority of this court.

Defendant and his wife, Gisselle Somoza, were charged by information with trafficking in cocaine and possession of cannabis with intent to sell or deliver. Both filed a pre-trial motion to suppress the fruits of a search warrant. They argued that the affidavit for the warrant was deficient because it failed -to show that police had probable cause to believe that he and his wife were guilty of trafficking or any intent to sell or deliver marijuana as suggested. The trial judge held an evidentia-ry hearing and at the conclusion announced his decision to grant the motion. The State appeals.

Testimony at the hearing on the motion showed that the case began when the officer was contacted by a fellow police officer who passed along an unfounded tip about possible drug trafficking at defendant’s residence. Defendant Colitto and his wife resided at the address with two other people.

The officer conducted a surveillance of the house. The only activity he reported in the affidavit was that defendant placed garbage cans curbside on two separate occasions. The first time he placed three bags in the cans, and a search of the trash revealed cannabis residue, seeds and stems — the quantity unknown. Mail in the bags was addressed to that same residence. Seven days later, defendant placed four garbage bags in the trash cans, and a search once again turned up cannabis residue, seeds and stems, quantity unknown, along with mail addressed to the residence.

The officer filed an affidavit for a warrant stating that the police had received information that defendants were involved in trafficking cannabis and cocaine at the residence, and relating the results of the garbage searches. In his testimony at the hearing, the officer conceded that his only evidence of criminal activity came from the two garbage searches. The officer further admitted that he did not include in the affidavit anything about the tip passed along by his fellow officer. He also omitted information regarding defendant’s arrest record, and furnished no information about the mail found in the garbage. The officer conceded that there was nothing suggesting the presence of cocaine in the house. He acknowledged that he had no contact with the other officer’s confidential informant and could furnish nothing about the informant’s veracity or reliability. Based solely on the information in the officer’s affidavit regarding the trash searches, the magistrate issued a warrant for marijuana and all controlled substances.

At the conclusion of the motion to suppress hearing, the trial court concluded the following:

[Bjasically, this boils down to two trash [searches] within a week’s time in which there was residue.... There was candid testimony there was nothing observed during the period of surveillance with regard to any unusual traffic or activity at the residence that would in any way have been consistent with any kind of illegal narcotic activity.
Even though I understand the fellow officer rule as it relates to probable cause in terms of Norm Serfice, there’s nothing in the affidavit at all, and he’s not required to disclose certainly who the informant is, but there’s nothing in there that gives any underlying information of what was received, just that information was received.
The affidavit says there was mail addressed to the residence, but it doesn’t identify who the addressee was on any of the mail that may have been retrieved from the trash [searches]. So I don’t see anything inappropriate about finding in one’s trash mail addressed to the address that the trash is from.
I just see the probable cause affidavit to be legally insufficient for purposes of issuing the warrant. So I’m going to grant the motion.

Essentially the State argues that the single fact of finding marijuana residue in defendant’s trash on two separate occasions a week apart is sufficient to establish probable cause to support the crime of trafficking in controlled substances, including cocaine. To assess this contention [I] begin with established law. All questions of probable cause depend on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (“The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.”); Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (totality of circumstances must be taken into account in assessing reasonableness of Fourth Amendment issues); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“The concept of reasonable suspicion, like probable cause, [e.s.] is not ‘readily, or even usefully, reduced to a neat set of legal rules’.”); Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (question is “whether the totality of the circumstances justified a particular” search); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“we conclude that it is wiser to abandon the ‘two-pronged test’ established by our decisions in Aguilar and Spinelli In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations.” [f.o.] [c.o.]).

In assessing the totality of circumstances for probable cause, courts must not rest their decision on a single factor, give extra weight to one fact, or consider any single fact in isolation from others; instead courts must consider the entire set of reasons — the mosaic, as some have described it — offered to support the warrant. Vieth v. Jubelirer, 541 U.S. 267, 291, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (the “totality-of-the-circumstances” means that “all conceivable factors, none of which is dispositive, are weighed with an eye to ascertaining [the issue in question].”); United States v. Banks, 540 U.S. 31, 42, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (condemning as a distortion of the ‘totality-of-the-circumstances’ principle, the “resort to pigeonholes” in the execution of a search warrant); United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (holding that totality of the circumstances means not giving extra weight to any specific factor); United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (considering some factors in isolation from others fails to comport with totality of circumstances test); Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“the Florida Supreme Court rested its decision on a single fact — that the encounter took place on a bus — rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard.”). “There are so many variables in the probable cause equation that one determination will seldom be a useful ‘precedent’ for another.” Gates, 462 U.S. at 239 n. 11, 103 S.Ct. 2317.

As these citations reveal, the totality-of-the-circumstances principle originated in Gates, a case also involving, as here, a tip leading to the discovery of illegal substances in a home. Until the decision in Gates, an informant’s tip about possession of controlled substances had to satisfy a dual inquiry, called the Aguilar-Spinelli rules, to satisfy the requirement of probable cause:

“For present purposes, the Aguilar-Spi-nelli rules can be summed up as follows. First, an affidavit based on an informer’s tip, standing alone, cannot provide probable cause for issuance of a warrant unless the tip includes information that apprises the magistrate of the informant’s basis for concluding that the contraband is where he claims it is (the ‘basis of knowledge’ prong), and the affi-ant informs the magistrate of his basis for believing that the informant is credible (the ‘veracity’ prong). Second, if a tip fails under either or both of the two prongs, probable cause may yet be established by independent police investigatory work that corroborates the tip to such an extent that it supports ‘both the inference that the informer was generally trustworthy and that he made his charge on the basis of information obtained in a reliable way’.” [c.o.]

Gates, 462 U.S. at 267-68, 103 S.Ct. 2317 (White, J., concurring). Gates receded from the Aguilar-Spinelli rules to the extent that they would invalidate a search not complying with their requirements and substituted the totality of the circumstances test. In explaining probable cause after the adoption of totality of the circumstances test in place of the Aguilar-Spi-nelli rules, Justice Rehnquist stated that:

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.”

Gates, 462 U.S. at 238-39, 103 S.Ct. 2317. In a telling example, Justice Rehnquist explained: “[a]n officer’s statement that ‘affiants have received reliable information from a credible person and believe’ that heroin is stored in a home, is ... inadequate.” Gates, 462 U.S. at 239, 103 S.Ct. 2317.

The events in this case began with precisely the “inadequate” example posed by Justice Rehnquist. The first officer had received a tip that defendant- was trafficking in illegal substances. The investigating officer’s affidavit recites that “as a result of receiving this information” from the first officer he initiated surveillance of the home. He twice retrieved defendant’s trash on successive weeks, finding only cannabis residue. Solely on the basis of those facts he sought and obtained the search warrant for trafficking in controlled substances, including cocaine.

As the trial judge explained in suppressing the evidence:

“[B]asieally, this boils down to two trash [pulls] within a week’s time in which there was residue_ There was candid testimony there was nothing observed during the period of surveillance with regard to any unusual traffic or activity at the residence that would in any way have been consistent with any kind of illegal narcotic activity.
“Even though I understand the fellow officer rule ... there’s nothing in the affidavit at all, and he’s not required to disclose certainly who the informant is, but there’s nothing in there that gives any underlying information of what was received, just that information was received.”

The trial judge attached no significance to the mail in the trash addressed to the same address. Because there was nothing stated in the affidavit about the results of any investigation conducted by either officer, the tip necessarily was not considered. In this case, the court was effectively left with a probable cause mosaic consisting of a single facet: an unknown quantity of cannabis residue found in two trash searches conducted without any basis.

Our standard of review is de novo. See Connor v. State, 803 So.2d 598, 608 (Fla. 2001) (“[F]or the same underlying policy reasons enunciated in Ornelas and Thompson, appellate courts should continue to accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” [f.o.]); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (determinations of reasonable suspicion to conduct investigatory stop and probable cause to perform warrantless search should be reviewed de novo on appeal). See also Riggs v. State, 918 So.2d 274, 278 (Fla.2005) (When reviewing rulings on motions to suppress, we “accord a presumption of correctness ... to the trial court’s determination of historical facts, but [we] independently review mixed questions of law and fact that ultimately determine constitutional issues.”).

The “substantial basis” comment by Justice Rehnquist from Gates quoted above does not mean that a more deferential form of review other than de novo is required. The “substantial basis” to which he referred is simply a form of the “substantial competent evidence” standard that we apply to factual findings. Even if there is evidence to support the factual basis for the probable cause finding, Ornelas requires that the reviewing court make its own application of the law to test the magistrate’s conclusion that those facts amount to probable cause. In short, it is still de novo review that is required.

We have usually insisted on something more than unfounded trash searches in our eases to support a search of a home. In Raulerson v. State, 714 So.2d 536, 537 (Fla. 4th DCA 1998), for example, we refused to base the reasonableness of a search on the number of times the police had retrieved defendant’s trash. We said:

The instant case is distinguishable from State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA), rev. dismissed, 441 So.2d 632 (Fla.1983), where the court held an affidavit based on evidence retrieved in two separate trash pulls was sufficient to support a finding of probable cause. The instant case is also distinguishable from those cases involving discovery of narcotics from a one-time trash pull, where additional information was included in the affidavits which suggested patterns of continuous drug activity sufficient to support a finding of probable cause to search. For example, in State v. Mayes, 666 So.2d 165 (Fla. 2d DCA 1995), the affidavit contained not only information of a one-time trash pull leading to the discovery of narcotics, but also of “the officers’ observation of and the ‘concerned citizen’s’ report of traffic to and from the [defendant’s] home at all hours of the day and night.... ” Id. at 165. Similarly in Scott v. State, 559 So.2d 269 (Fla. 4th DCA 1990) the affidavit contained not only information of a one-time trash pull leading to the discovery of narcotics, but also “information concerning activities at the [defendant’s] residence observed during surveillance by a Broward sheriffs deputy ... and information furnished to the sheriffs office by one of appellant’s neighbors concerning his observations of activities at the residence.” Id. at 272.

714 So.2d at 537. In other words, our decision did not turn on the number of trash searches but on the character of all the cognizable information known by the police.

Similarly, in Gesell v. State, 751 So.2d 104, 105-06 (Fla. 4th DCA 1999), we assessed the nature and character of the cognizable information known to police:

In this case, as in Raulerson, the officers did not conduct any surveillance or independent follow-up investigation to corroborate the anonymous tip, perform additional garbage pulls, or develop any other facts to show a pattern of continuous drug activity and establish a fair probability that cannabis would be found on the premises. Moreover, there was nothing found in the contents of the trash here that, in and of itself, supported a reasonable conclusion that additional contraband would be found in the house.

751 So.2d at 105-06. On the other hand, in State v. Carbonell, 816 So.2d 1169, 1170 (Fla. 4th DCA 2002), where there was a single trash search, the officer had also conducted a month long investigation, observing a “large volume” of “short stay” guests, some of them sitting on the porch of the premises smoking what appeared to be marijuana, and guests leaving the premises clutching clear plastic bags containing a white, powdery substance. Similarly, in Baker v. State, 762 So.2d 977, 978 (Fla. 4th DCA 2000), also involving a trash search and an anonymous tip, the tipster described in detail that “customers” were leaving defendant’s home with “small clear plastic baggies tied with green twisties.” The trash search revealed plastic baggies with cut edges, and green twisties, in addition to cocaine residue. In short, the anonymous tip was corroborated by evidence found in the trash showing more than residue, thereby investing the tip with indicia of truth and reliability. We concluded that the defendant had failed to show clear error in the trial court’s denial of the motion to suppress. The same rationale supports State v. Mayes, 666 So.2d 165 (Fla. 2d DCA 1995). After receiving information from a concerned citizen who had seen traffic come and go throughout the day and night, the police conducted surveillance of the defendant’s home. They themselves observed traffic to and from the home at all hours of the day and night. We specifically cited Gates and the totality of the circumstances test for reasonableness of searches under the Fourth Amendment.

The only case sustaining a search on the basis of unfounded trash searches, without more, is State v. Jacobs, 437 So.2d 166, 167 (Fla. 5th DCA 1983), which we distinguished in Raulerson. There the court explained its reasoning thus:

“While the federal cases clearly provide more information regarding the likelihood that a criminal offense was being committed, the conclusion does not necessarily follow that the facts here are insufficient to establish probable cause. The fact that marijuana and cannabis seeds were found on two separate occasions within one month’s time suggests a continuing violation of the drug laws and indicates a ‘fair probability’ that marijuana or cannabis would be found in the house.”

437 So.2d at 168. But neither State v. Stevenson, 707 So.2d 902 (Fla. 2d DCA 1998), nor Scott v. State, 559 So.2d 269 (Fla. 4th DCA 1990), go as far as Jacobs. In Stevenson the detective first investigated the subject and found that he had previously been arrested for possession of a controlled substance; the tip came from a neighbor who identified another person by name as also being involved, a fact verified by the waste. In Scott, the affidavit included details of observation from surveillance, as well as information from a neighbor. Suffice it to say that Jacobs includes no such details or information. The single fact supporting the warrant was an unfounded search of trash.

With all due respect to the Fifth District, its rationale cannot be squared with the part of Aguilar left untouched in Gates. We should be in conflict with Jacobs.

      . Originally the appeals involving Somoza and Colitto, who are husband and wife, were separate cases assigned to different panels. The panel in Colitto affirmed without opinion on November 2, 2005; however, that opinion was withdrawn when the Somoza panel decided to reverse. We then consolidated the cases and resolved the conflict with this en banc opinion.

      . "The essence of all power is the right to define with authority, and the major stake of the power struggle is the appropriation ... of the right to define.” Zygmunt Bauman, The Individualized Society 208 (2001).

      . The Supreme Court’s view that trash placed curbside should he treated as legally abandoned property is a conclusion unconnected to any major premise. People do not place their solid waste at the curb because they have decided to lay it bare before the world. They do so because the law bars them from disposing of solid waste in any other way. See § 187.201(12)(b)2 (providing for countywide system of collection and removal of all solid waste), and ch. 403, part IV, Fla. Stat. (2005) (resource recovery and management).
      In bygone times, people were free to burn or bury this waste for themselves. Now solid waste must be removed from premises, and only the entity designated by law may do so. Hence people are not abandoning waste for public inspection by placing it curbside. They are instead disposing of it in the manner required by law. But it is one thing to present it for waste disposal, and quite another to open it up for public inspection. The fact that they are complying with waste removal laws hardly means that they want or expect the police to rummage through it for possible evidence of crime. Their expectation is that it will be burned or buried in a landfill without anyone seeing it.

      . Back to linguistics and meaning for a moment. It should not take much reflection today to see that characterizing an endeavor as a war on something is calculated to paint it with a nobility of purpose and a tolerance of tactics that otherwise would be questioned or even condemned.

      . See, e.g., Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999) (involving husband and wife co-defendants and searches of their trash, with separate panels reaching conflicting outcomes).

      . Although he then ran a background check on defendant, which turned up a previous arrest for trafficking cocaine and possession of marijuana, he chose not to include that information in his affidavit. We therefore do not consider this information.

      . "But there are exceptions.” Ornelas v. United States, 517 U.S. 690, 698, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). None are applicable here.

      . Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . "The duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... concluding]’ that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S.Ct 2317.


author: PER CURIAM.

text:
    James SAULSBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1950.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Carey Haughwout, Public Defender, and James W. McIntyre, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

After a non-jury trial, appellant was found guilt of resisting with violence (Count I) and corruption by threat (Count II). He appeals the denial of his motion to correct sentencing error. As the state concedes, the trial court erred in entering a written sentence order that did not conform to its oral pronouncement. The trial court’s oral pronouncement of five years probation on each count, concurrent, with a condition of sixty days jail to be served as long weekends, controls over the written sentence order imposing sixty days as a condition of ten years probation. See Arroyo v. State, 651 So.2d 223 (Fla. 4th DCA 1995); Trueblood v. State, 635 So.2d 1024 (Fla. 1st DCA 1994); Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982). Additionally, the sentence order improperly included a general sentence for both counts. See Burgess v. State, 691 So.2d 607, 608-09 (Fla. 4th DCA 1997) (“The law is clear that trial courts may no longer issue ‘general’ sentences which encompass more than oné count.”).

We therefore reverse and remand for correction of the sentencing errors consistent with this opinion.

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

      . On June 15, 2005, appellant filed notice of the filing of his 3.800(b)(2) motion. The 60 day period for the trial court to rule on the motion expired without a ruling, so the motion was deemed denied.


text:
    Douglas TUNSIL, III, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-884.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Rehearing Denied June 7, 2006.
    Douglas Tunsil, III, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG JJ.
   PER CURIAM.

Affirmed. See Reese v. State, 899 So.2d 428 (Fla. 3d DCA 2005) (confirming that infirmity in notice of intent to seek enhanced sentence must be raised in a timely Rule 3.850 motion); Tunsil v. State, 797 So.2d 651, 653 (Fla. 3d DCA 2001)(re-manding for resentencing as expressly ordered and stating “[defendant need not be present” for same).


author: SCHWARTZ, Senior Judge.

text:
    Jaime TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1154.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    , Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v. State, 684 So.2d 736 (Fla.1996), and eliminated knowledge of the unlawful nature of the offending substance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), review denied, 915 So.2d 1198 (Fla.2005), Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, No. SC05-1120, 928 So.2d 336 (April 4, 2006), and Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005), however, it is not.

The other point presents no error.

Affirmed.


text:
    L.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Guardian Ad Litem Program, Appellees.
    No. 3D05-852.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Karl E. Hall, Jr., Miami, for appellant.
    Calianne P. Lantz; Mercedes E. Scopet-ta, for appellees.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The mother appeals from an order terminating her parental rights to seven children. We find no error.

Affirmed.


text:
    Orlando QUINTERO and Pastora Quintero, Appellants, v. The GOLFVIEW CLUB, etc., et al., Appellees.
    No. 3D05-1285.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    H. Dillon Graham, III, for appellants.
    Adams & Adams and R. Wade Adams and Joel Lumer, Miami, for appellees.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Echazabal v. El Toro Meat Packing Corp., 506 So.2d 1100 (Fla. 3d DCA 1987), cause dismissed, 511 So.2d 998 (Fla.1987).


text:
    T.E.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2093.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.

      Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA 1988), review denied, 534 So.2d 401 (Fla.1988), cert. denied, 488 U.S. 1044, 109 S.Ct. 872, 102 L.Ed.2d 995 (1989).


text:
    Sam M. STERLING, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Fidelity National Management, Appellees.
    No. 3D05-2724.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Sam M. Sterling, in proper person.
    John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Zorrilla v. L. Luria & Son, Inc., 645 So.2d 1078 (Fla. 3d DCA 1994); Clay County Sheriff’s Office v. Loos, 570 So.2d 394 (Fla. 1st DCA 1990).


text:
    William Murphy ALLEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4578.
    District Court of Appeal of Florida, First District.
    May 18, 2006.

      Ryan Thomas Truskoski, Orlando, for Appellant.
    Charlie Crist, Attorney General and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

William Murphy Allen, Jr., challenges his judgment of conviction for murder, robbery and burglary. We affirm the convictions, but, for the reasons that follow, we reverse the sentences imposed and remand for entry of a corrected sentence.

By indictment, appellant was charged in count I with murder, in count II with burglary, and in count III with robbery. The judgment of conviction reflects an adjudication of guilty for murder as to count I, for burglary as to count II, and for robbery as to count III. At the sentencing hearing, however, the prosecutor erroneously advised the trial court that count II was the robbery conviction and then agreed with the trial court’s surmise that count III was the burglary conviction. The trial court then asked about the statutory maximum sentence for the robbery conviction and was correctly informed by the prosecutor that the statutory maximum sentence for such a second degree felony is fifteen years. The court was then told by the prosecutor that the statutory maximum sentence for the burglary conviction, a third degree felony, was five years. The trial court then orally announced a fifteen year sentence for count II and a five year sentence for count III, having already sentenced appellant to life for the murder conviction. The written sentence thereafter entered reflects a fifteen year sentence for count II and a five year sentence for count III.

It is apparent from the record that the trial court intended to impose the permissible statutory maximum for the burglary conviction, which is actually count II of the judgment of conviction, and to impose the statutory maximum for the robbery conviction, which is actually count III of the judgment of conviction. The sentences imposed for counts II and III are therefore vacated, and the cause is remanded for entry of a corrected sentence to conform with the trial court’s intent as indicated in the sentencing hearing. See Hamilton v. State, 586 So.2d 1236 (Fla. 5th DCA 1991). Appellant need not be present for entry of the corrected sentence.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ERVIN, BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Jorge DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-6140.
    District Court of Appeal of Florida, First District.
    May 18, 2006.

      Jorge Diaz, pro se, Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his postconviction motion in which he asserts that the trial court erroneously imposed a sentence in excess of 364 days’ incarceration upon his violation of probation where the appellant had previously completed youthful offender boot camp.

A defendant may not be resentenced upon a subsequent violation of probation to a period exceeding 364 days’ incarceration following participation in a youthful offender boot camp pursuant to section 958.04(2)(b), Florida Statutes (1997). See Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002); Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000). Here, according to appellant’s motion and supporting documents, he participated in a youthful offender boot camp program and as a result, the trial court modified his original sentence. Thus, the trial court’s imposition of a sentence exceeding 364 days’ incarceration upon the appellant’s violation of probation violates section 958.04(2)(b), Florida Statutes (1997), and appears to be illegal. See Thomas, 825 So.2d at 1033; Blood-worth, 769 So.2d at 1118.

We, therefore, REVERSE the summary denial and REMAND for the trial court to either attach documentation conclusively refuting the appellant’s claim, or to resen-tence the appellant consistent with Thomas and Bloodworth.

REVERSED AND REMANDED.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    Jacky Bryan STRICKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0417.
    District Court of Appeal of Florida, First District.
    May 18, 2006.

      Richard A. Parker, Public Defender, Eighth Judicial Circuit, and Thomas Jay McLennon, Assistant Public Defender, Gainesville, for Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the judgment and sentence rendered on September 23, 2005, in Alachua County Circuit Court case number 01-2003-CF-4378A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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


text:
    Andrunae C. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2300.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    Andrunae C. Scott, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order denying his motion for post-conviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order in all respects except Appellant’s claim that his counsel was ineffective for failing to object to the introduction of a mugshot photograph of him. The lower court erred when it summarily denied this claim. See Washington v. State, 705 So.2d 132 (Fla. 4th DCA 1998) (where photographs identified. as “police” photos had tape to cover numbers and detective was told to disregard any numbers he may have seen on pictures, question existed of whether counsel was deficient in failing to object and request curative instruction regarding the taped-up photos).

On remand, the trial court shall either conduct an evidentiary hearing or attach portions of the record which conclusively refute this claim.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

SHARP, W., TORPY and LAWSON, JJ., concur.

      . Cardali v. State, 794 So.2d 719 (Fla. 3d DCA 2001), upon which the lower court relied, is inapposite. There, the defendant failed to describe in his motion the nature of the photograph or how its admission in evidence prejudiced him. The court’s decision to affirm the trial court was without prejudice for the defendant to file a more particular claim. Here, conversely, Appellant has alleged that the photograph is a mugshot from which the jury could have inferred a prior criminal arrest.


text:
    Lamar Antonio SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3838.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fisher v. State, 924 So.2d 914 (Fla. 5th DCA 2006) (holding it is within the trial court’s sound discretion to determine the admissibility of evidence, and its ruling on admissibility will not be disturbed absent an abuse of discretion).

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Lawrence E. MAYFIELD, Appellant, v. Angela MAYFIELD, Appellee.
    No. 5D05-4262.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.

      Lawrence E. Mayfield, New Smyrna Beach, Pro Se.
    Angela Mayfield, Daytona Beach, Pro Se.
   PER CURIAM.

The former husband, Lawrence E. May-field, appeals the final judgment of dissolution of marriage to his former wife, Angela Mayfield. Mr. Mayfield contends that the trial court erroneously valued the former wife and children’s exclusive use of his non-marital home; miscalculated the amount of child support arrearages; and awarded inadequate visitation. We affirm.

Because no transcript exists of the proceedings, our review is limited to the pleadings, judgment dissolving the marriage and other matters contained-in the record. As the appellant, Mr. May-field has the burden of demonstrating error. In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Neither has the former husband complied with Florida Rule of Appellate Procedure 9.200(b)(4), which governs the preparation of a record when no transcript of the proceedings is available.

As the supreme court said in Ap-plegate:

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial court so misconceived the law as to require a reversal.

377 So.2d at 1152.

Because no reversible error has been demonstrated from the record provided to us, we affirm.

AFFIRMED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Bentz BOURSIQUOT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2564.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant. ■
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cosby v. State, 913 So.2d 93 (Fla. 5th DCA 2005) (scoresheet errors do not require resentencing where it is conclusively shown from the record that the same sentence would have been imposed using the correct scoresheet).

GRIFFIN, PALMER, and LAWSON, JJ., concur.


author: PLEUS, C.J.

text:
    Robert WHITING, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2707.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.

      Robert Whiting, Cocoa, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

The defendant appeals from an order summarily denying his pro se motion to withdraw guilty pleas.

The defendant’s motion asserts that the trial court erred in failing to order a competency evaluation of him before accepting his pleas. The State maintains that the decision to order a competency evaluation is one within the discretion of the trial court and that no abuse of discretion has been demonstrated. While our initial inclination is that the record conclusively shows that the defendant was competent in that he had the ability to consult with his counsel with a reasonable degree of rational understanding and had a rational and factual understanding of the proceedings against him, see Hill v. State, 473 So.2d 1253, 1257 (Fla.1985), we conclude that the pro se motion was unauthorized and thus should have been stricken.

The defendant was represented by private counsel in the trial court proceedings. He filed his pro se motion to withdraw guilty pleas twenty days after sentencing, as per Florida Rule of Criminal Procedure 3.170(0- However, pursuant to Florida Rule of Criminal Procedure 3.111(e), entitled ‘Withdrawal of Defense Counsel After Judgment and Sentence,” the defendant was still represented by such counsel at the time he filed his pro se motion.

Given that the defendant was still technically represented by counsel, his pro se motion should have been stricken by the trial court as a nullity. Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004). As explained by Judge Altenbernd in that case, a defendant does not have a constitutional right to “hybrid” representation — that is, to be represented both by counsel and by himself. See Logan v. State, 846 So.2d 472 (Fla.2003). Pro se pleadings filed by a criminal defendant who is represented by counsel are generally treated as a nullity unless they include an unequivocal request to discharge counsel, Mourra, 884 So.2d at 321, assert that counsel coerced the defendant into taking certain action, Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004), or reflect an adversarial relationship between the defendant and his counsel. Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005). None of these exceptions are applicable. The defendant’s motion to withdraw plea does not include a request to discharge counsel or reflect the existence of an adversarial relationship. The defendant’s motion to withdraw alleged the trial court erred in failing to order a competency exam on its own motion despite being presented with evidence which purportedly called into doubt the defendant’s mental competence. The defendant never asserted in his pro se motion to withdraw that he wanted new representation, wished to proceed pro se, or otherwise desired to terminate representation by his attorneys. See Stone v. State, 798 So.2d 861 (Fla. 4th DCA 2001).

We agree with Mourra that a 3.170(0 motion filed under such circumstances should not be considered by the trial court on the merits but rather should be stricken as unauthorized. We remand with directions to strike the Rule 3.170(Z) motion.

CAUSE REMANDED WITH DIRECTIONS.

SHARP, W. and MONACO, JJ., concur.

      . The defendant had been adjudicated indigent for the purposes of defense costs only.

      . In the absence of entry of an order permitting withdrawal of counsel upon good cause shown, Rule 3.111(e) provides the attorney of record for a criminal defendant is not relieved of any duties until after the filing of a notice of appeal or the time for filing of such notice has expired or the obtaining or appointment of substitute counsel. None of these conditions apply here.


text:
    Marilyn HARRELL, Appellant, v. Marie HAHN, Appellee.
    No. 5D05-3669.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    Frank DeNike, of Mullins DeNike, Kis-simmee, for Appellant.
    Frank M. Townsend, Townsend Townsend, Kissimmee, for Appellee.
   PER CURIAM.

Marilyn Harrell appeals an order appointing Teresa Hahn a/k/a Marie Hahn, as plenary guardian of the person and property of Evelyn Margaret Larison. Ms. Harrell alleges that the trial court erred by denying her petition to be appointed as her sister’s guardian and granting the competing petition of Ms. Hahn, the incapacitated person’s daughter. Having reviewed the record carefully, we find no abuse of discretion by the trial court in its application of section 744.312, Florida Statutes (2004). We likewise find that the trial court’s order is founded on substantial, competent evidence. In Re Guardianship of Sapp, 868 So.2d 687 (Fla. 2d DCA 2004). The trial court’s ruling on discretionary matters will be sustained unless no reasonable person would have adopted the view taken by the trial court. Quince v. State, 732 So.2d 1059, 1062 (Fla. 1999). Since that is not the case here, we affirm.

AFFIRMED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Hughon BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2805.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.

      Hughon Brown, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

Hughon Brown appeals an order denying his motion for a new sentencing hearing. We dismiss for lack of jurisdiction.

Brown’s trial for second degree murder began in March 1993. On the second day of trial, Brown failed to appear. The jury found Brown guilty as charged in absentia. The trial court issued a capias for Brown.

Sentencing was set for April 13, 1993. Brown failed to appear. The court reset the sentencing hearing for May 26, 1993. On that day, Brown again failed to appear. The court sentenced Brown in absentia to 22 years in prison.

Ten years later, on April 17, 2003, Brown was arrested on the outstanding capias in this case. In June 2005, Brown filed a motion for new sentencing hearing, pursuant to Florida Rules of Criminal Procedure 3.720 and 3.180(a)(9), arguing that he was entitled to be resentenced because he did not voluntarily waive his right to be present at the original sentencing. The lower court denied this motion finding that Brown waived his right to be present at sentencing by voluntarily absenting himself from the trial. Brown appealed.

The order on appeal is not a final judgment adjudicating guilt, final order withholding adjudication, order denying' relief pursuant to Florida Rules of Criminal Procedure 3.800, 3.850, 3.853, or any other type of appealable order under Florida Rule of Appellate Procedure 9.140. The motion purports to be filed pursuant to Florida Rules of Criminal Procedure 3.180 and 3.720, neither of which authorize relief in the form of a posteonviction motion.

There are some older cases authorizing postconviction relief where a defendant’s right to be present at trial was waived without his knowledge and consent. Cole v. State, 181 So.2d 698, 700-01 (Fla. 3d DCA 1966) (citing Harper v. State, 168 So.2d 325 (Fla. 1st DCA 1964)). However, even if the trial court could have treated this as a motion filed pursuant to Rules 3.800 or 3.850, it would, have been untimely because it was not filed within two years of sentencing. Fla. R.Crim. P. 3.850(b).

In a similar case, Lepper v. State, 826 So.2d 363 (Fla. 2d DCA 2002), the defendant filed an untimely motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170. The trial court denied the motion on the merits. The appellate court found that the motion was unauthorized and therefore the order denying it on the merits was void. The court dismissed the appeal without prejudice to file a timely postconviction motion pursuant to Rule 3.850. Id. at 364.

In the instant case, the trial court should have stricken the motion instead of denying it on the merits. It was an unauthorized postconviction motion. In addition, and unlike Lepper, it was untimely under Rule 3.850. ■ Thus, our dismissal is with prejudice.

Even if we had jurisdiction, we would affirm. Although defendants have a constitutional right to be present at sentencing, they may waive that right. Capuzzo v. State, 596 So.2d 438 (Fla.1992). In Capuzzo, the supreme court expressly disapproved Wagner v. State, 519 So.2d 751 (Fla. 4th DCA 1988), which had facts similar to the instant case in that the defendant absconded during trial and was sentenced in absentia. Wagner held that trial courts cannot sentence defendants in absentia for felony offenses. The supreme court disagreed, reasoning that “[wjhere a defendant absents himself or herself by fleeing the court’s jurisdiction, that defendant cannot claim lack of an express waiver. In such circumstances, securing an express waiver is impossible and the defendant’s actions constitute a valid waiver.” Capuzzo, 596 So.2d at 440. The same rationale applies in the instant case.

Accordingly, we dismiss this appeal, with prejudice, for lack of jurisdiction.

APPEAL DISMISSED WITH PREJUDICE.

THOMPSON and SAWAYA, JJ., concur.


author: GRIFFIN, J.

text:
    DELOITTE & TOUCHE, Appellant, v. GENCOR INDUSTRIES, INC., Appellee.
    No. 5D05-1734.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    James S. Toscano, of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, and Jennifer L. Conn, of Gibson, Dunn & Crutcher, LLP, New York, NY, for Appellant.
    * Walter A. Ketcham, Jr., and Ramon Vazquez, of Grower, Ketcham, Rutherford, Bronson, Eide Telan, P.A., Orlando, and Frank T. Apodaca of Susman Godfrey, LLP, Houston, TX, for Appellee.
   GRIFFIN, J.

Appellant, Deloitte and Touche, a general partnership organized under the laws of the United Kingdom (“DTGP”), appeals two non-final orders denying its motion to dismiss for lack of in personam jurisdiction and improper venue. We affirm the order on jurisdiction, but reverse the order on venue.

In the second amended complaint appel-lee, Gencor Industries, Inc. (“Gencor”), filed suit against its Florida auditor, De-loitte and Touche U.S. (“Deloitte U.S.”) and DTGP concerning allegedly negligent audit work performed in the United Kingdom. Gencor ACP, a United Kingdom wholly-owned subsidiary of Gencor, had engaged DTGP to perform the work, which Gencor alleges failed to disclose a scheme on the part of Gencor ACP’s senior management to conceal the company’s true financial condition. Gencor’s damage claims range from the cost of a second audit, to shareholder lawsuits, to delisting from its stock exchange and allegedly exceed $26 million.

The two claims asserted are “professional negligence” and “negligent misrepresentation.” The second amended complaint asserts that in personam jurisdiction against DTGP is proper pursuant to section 48.193, Florida Statutes, because DTGP committed a tortious act within the state and because DTGP carried on business within the state. Venue in Orange County is alleged to be proper based on the cause of action accruing in Orange County.

Deloitte U.S. had been Gencor’s accounting firm since 1993. In 1997, Gencor acquired a United Kingdom company known as ACP Holdings, Ltd. (“ACP Holdings”), which after the acquisition became Gencor ACP (“Gencor ACP”). Gencor asserted that Deloitte U.S. and DTGP conducted reviews of Gencor ACP’s financial statements for quarterly periods in 1998, rendered an opinion on ACP Holdings’ balance sheet dated September 30, 1997, and audited ACP Holdings’ financial statements for the nine month period that ended September 30,1997, but failed to uncover the scheme by Gencor ACP’s senior management.

DTGP filed a motion to dismiss on three grounds: that the trial court lacked in personam jurisdiction, that venue in Florida was improper based on a forum selection clause contained in the engagement letter between DTGP and Gencor ACP, and because the statute of limitations had expired. Both parties submitted affidavits in support of their respective positions.

Two hearings were conducted by the lower court. After the first hearing, the trial court denied DTGP’s motion as to jurisdiction. The court ruled as follows:

DTGP and DTLLP assert that there is no personal jurisdiction over them, as they are English businesses and all of the work was performed in England. The affidavits filed in support of their motions to dismiss, however, concede that DTGP’s employees communicated with DTUS regarding the work performed for Gencor ACP. Gencor argues that those statements, among others, constitute the negligent misrepresentations. It is further undisputed that DTGP knew that Gencor’s principal place of business is in Florida, and therefore that any misrepresentations to Gencor would have an impact in Florida. Thus, personal jurisdiction exists over DTGP. OSI Indus. Inc. v. Carter, 834 So.2d 362, 367-68 (Fla. 5th DCA 2003) (telephone call from out of state defendant to plaintiff in Florida that plaintiff alleged contained negligent misrepresentations was sufficient to constitute committing a tort in Florida and adequate minimum contacts to satisfy due process where defendant knew misrepresentations would impact plaintiff in Florida.)

Importantly, the court found that personal jurisdiction existed based on communications between DTGP’s employees and De-loitte U.S. employees regarding work performed on behalf of Gencor ACP.

The venue and statute of limitations arguments were heard at the second hearing. The trial court again denied DTGP’s motion to dismiss. The court ruled that the venue provision contained in the letter of engagement between Gencor ACP and DTGP requiring suit to be brought in the United Kingdom was not enforceable against Gencor because Gencor was not a party to the engagement contract between Gencor ACP and DTGP.

We must affirm on the issue of jurisdiction. In its second amended complaint, Gencor claims there is jurisdiction over DTGP because DTGP committed “tortious acts” in Florida. § 48.193(l)(b), Fla. Stat. (1997). Gencor does not contest that DTGP does not have an office, place of business, employees, agents, mailing address, telephone listing, real estate or property in Florida. Nor does it dispute that no one from DTGP ever traveled to Florida on business for Gencor or any related entity.

In Wendt v. Horowitz, 822 So.2d 1252, 1257-58 (Fla.2002), the supreme court of Florida held that a written communication from outside of the state can constitute the commission of a tortious act for purposes of Florida’s long-arm statute and that physical presence in the state is not required to satisfy the constitutionally mandated requirement of minimum contacts. Citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the court concluded that communications from outside the state will satisfy minimum contacts so long as the commercial actor’s efforts were purposefully directed toward a resident of Florida. 822 So.2d at 1258. The Wendt court also pointed out that the making of false telephonic, electronic, or written communications into Florida from outside the state will constitute “committing a tortious act” only if the alleged cause of action “arises from” the communications because of the connexity requirement contained in section 48.198(1). Id. at 1260.

The supreme court in Wendt remanded the case to this court to determine whether the plaintiff had stated a cause of action for any tort cognizable in Florida and, if so, whether the communications made into Florida gave rise to the tort. Id. at 1260. Wendt is still the controlling law in Florida, which means that, in this case, we have the same task that we faced on remand in Wendt. See Horowitz v. Laske, 855 So.2d 169 (Fla. 5th DCA 2003). The obstacle we face in this case is similar, although not identical, to the issue in Horowitz. The tort at issue in this case is clearly identified by its title: “negligent misrepresentation.” Unlike Horowitz, however, DTGP does not argue in this appeal that Gencor has failed to state a cause of action. Instead, DTGP seeks to limit Gencor to the facts that Gencor has pleaded.

Central to DTGP’s argument on appeal is their contention that the only “misrepresentations” Gencor has pleaded are the reports (containing DTGP’s inaccurate evaluation of Gencor ACP’s financial condition) that Gencor received from Deloitte U.S. The parties appear to agree that DTGP did not transmit its work directly to Gencor. It appears undisputed that DTGP sent its allegedly erroneous work product to Florida, but to Deloitte U.S., not the plaintiff Gencor. DTGP’s position is that because Gencor claims only to have relied on the audit and other information it received from Deloitte U.S., the tort alleged cannot have arisen out of DTGP’s transmission of its work product to De-loitte U.S. Gencor, for its part, contends on appeal that the transmission of the erroneous reports by DTGP to Deloitte U.S. in Florida was indeed the “communication” from which the tort of negligent misrepresentation arises.

In the order on appeal, the trial court cited and relied on this court’s decision in OSI Industries v. Carter, 834 So.2d 362 (Fla. 5th DCA 2003). In OSI Industries, an employee brought an action against his employer alleging that in order to induce him to accept employment, the employer fraudulently and negligently misrepresented to the employee that he could receive equity shares in the corporation in lieu of a pension or retirement plan. The employee’s affidavits alleged that the misrepresentations occurred during telephone conversations between the out-of-state employer and the employee located in Florida. The employer did not deny that the telephone communications transpired, rather, it denied a tort was. committed in the course of those communications. The OSI Industries court concluded that it was not necessary to determine whether the tort was actually committed in order to determine jurisdiction and that allegations of a misrepresentation communicated from outside Florida into Florida would qualify as “committing a tortious act within this State” under section 48.193(l)(b). This case, then, is different from OSI Industries or any other Florida case we are aware of in that the “misrepresentation” was not made to the party claiming to have been injured by reliance on the misrepresentation. Given the peculiar nature of the particular tort at issue, however, we conclude that this does not matter for jurisdictional purposes.

Although, as Judge Fanner has pointed out in NationsBank, N.A. v. KPMG Peat Marwick, LLP, 813 So.2d 964, 967 (Fla. 4th DCA 2002), there is language in decisions of the Florida supreme court that appear to equivocate on the question whether section 552 of the Restatement (Second) of Torts has been adopted as the law of Florida applicable to suits against an accounting firm for negligent performance of an audit, it is difficult reasonably to reach any other conclusion in light of First Florida Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9, 15 (Fla. 1990), and Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 338 (Fla. 1997). Section 552 of the Restatement, although commonly referred to as “negligent misrepresentation,” is actually entitled “Information Negligently Supplied for the Guidance of Others.” Section 552 has several specific elements, almost none of which are properly addressed by allegations of ultimate fact in the “negligent misrepresentation” count of Gencor’s complaint. If Gencor had been held to properly plead the elements of section 552, our task in this case should have been considerably simplified. As we wearily continue to point out, Florida is a fact-pleading jurisdiction, not a notice-pleading jurisdiction. Horowitz, 855 So.2d at 172-73. However, because this pleading issue has not been raised and because there is a record developed below consisting of documents and affidavits filed on the jurisdictional issue, we conclude that Gencor’s failure to more specifically plead the facts relevant to the particular elements of the tort that concerns us is not fatal to its claim of in personam jurisdiction over DTGP.

Subsection 1 of section 552 provides that: “One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” It appears to be undisputed (for jurisdictional purposes) that DTGP, in the course of the performance of its undertaking as the auditors for Gencor ACP, supplied false information to Deloitte U.S. for its use in preparing Gencor’s consolidated financial statement.

Subsection Two of section 552 provides that liability for such a negligent misrepresentation is limited to loss suffered “by the person or one of a limited group of persons for whose benefit and guidance he [the tortfeasor] intends to supply the information or knoivs that the reorient intends to supply it” (Emphasis added.)

As referenced above, it appears that in order for jurisdiction to be based on the commission of a tortious act in Florida, Florida law does require, at a minimum, that the misrepresentation was made in the State of Florida. As the OSI Industries opinion demonstrates, the inquiry is not whether the tort occurred, but assuming the tort occurred as alleged, did it occur in Florida? This is a matter for the trial court to determine based on examination of the affidavits, or, if necessary, by conducting a limited evidentiary hearing, in order to determine that important jurisdictional fact.

In summary form, the following are some of the allegations contained in the complaint concerning tortious acts committed in Florida by DTGP:

1. Gencor engaged Deloitte U.S. to conduct an independent audit of Gen-cor’s consolidated financial statements for fiscal year 1998 (fifty-two week period ending September 30,1998).
2. Deloitte U.S. performed part of the audit by and through the professional auditing services of DTGP. DTGP “reviewed and reported on” the financial statements of Gencor ACP.
3. DTGP knew that Gencor would receive and rely on Deloitte U.S.’s quarterly reviews of Gencor’s ACP’s financial statements and DTGP’s work in regard to these reviews.
4. Deloitte U.S. and DTGP provided a copy of the July 29,, 1998, audit report to Gencor, and both Deloitte U.S. and DTGP knew that Gencor would rely on it.
5. Deloitte U.S. submitted to Gencor’s board of directors and shareholders a “report of independent certified public accounts,” dated November 3,1998.
6. Deloitte U.S.’s consolidated audit, including its Gencor ACP quarterly review reports and audit opinion did not uncover numerous material misstatements, errors and irregularities in Gen-cor’s ACP’s financial statements because of an ongoing scheme by its senior management to misrepresent its true financial condition.
7. Deloitte U.S. and DTGP misrepresented that the financial statements of Gencor ACP gave a “true and fair view of the state of affairs of [ACP] as of 80 September 1997.”
8. Deloitte U.S. and DTGP also communicated the results of its 1998 quarterly reviews of Gencor ACP to Gencor. These representations were faulty in material respects.
9. Gencor reasonably relied on the accuracy of the 1998 Consolidated Audit Report and incorporated it into Gencor’s 1998 SEC form 10-K filing.

Although there is nothing in the record that we can find to establish that DTGP transmitted their reports directly to Gen-cor, or in any other way communicated their work product to Gencor, under Wendt, it is sufficient to establish the “tor-tious act” committed in Florida for purposes of jurisdiction that DTGP sent false reports to Florida, that DTGP was aware that these reports would be relied on in Florida by Gencor and they were relied upon in Florida by Gencor.

Although we conclude that there is jurisdiction over DTGP in Florida, we reverse the trial court’s decision that DTGP has no right to enforce the mandatory forum selection clause contained in the letter of engagement between Gencor ACP and DTGP to require Gencor to litigate its claims in the United Kingdom. The trial court found that this clause could not be enforced against Gencor because

Gencor was not a party to the contract. In other contexts, however, Florida courts have enforced contract terms, including forum selection clauses, against non-signatories. See, e.g., World Vacation Travel, S.A. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (forum selection clause against non-signatory proper where the claims are directly out of the agreement and the commercial relationship of the parties); Tuttle’s Design-Build, Inc. v. Florida Fancy, Inc., 604 So.2d 873, 873-74 (Fla. 2d DCA 1992) (recognizing that a reasonable forum selection clause would be enforced against a non-signatory). This is particularly true where, as here, there exists a close relationship between the non-signatory and signatory and the interests of the non-signatory are derivative of the interests of the signatory. See, e.g., XR Co. v. Block & Balestri, P.C., 44 F.Supp.2d 1296, 1299 (SD.Fla.1999) (enforcing forum selection clause against sole shareholder of contracting corporation where the shareholder’s interests in the contract were derivative of the contracting party and the contract inured to the non-signatory’s benefit); Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1300 (11th Cir.1998).

Gencor ACP is Gencor’s wholly owned subsidiary. The work performed under the engagement letter between DTGP and Gencor ACP is the work at issue in Gen-cor’s claims. As parent and owner of Gen-cor ACP, Gencor had to have its subsidiary’s books reviewed and audited in order to comply both with U.S. law and British law. Even though it was the subsidiary that did the hiring of DTGP, the work was intended in part for Gencor to use in preparing its reports and financial statement and for its use in supervising its own asset. According to the record, DTGP was paid by Gencor ACP for all this work that Gencor has alleged was supplied by DTGP for Gencor’s benefit. At the core of Gen-cor’s claim is the fact that Gencor incorporated DTGP’s audit into its consolidated financial statement and its reports to others.

As the Eleventh Circuit in Lipcon explained, where the interests of a non-party are directly related to or completely derivative of those of the contracting party, the non-signatory is bound by the contract’s forum selection clause. Here, Gencor’s claim is completely derivative of the professional engagement of DTGP by its wholly owned subsidiary and the work to be performed was plainly intended to be used by Gencor. Indeed, Gencor is expressly identified in the contract as a recipient of some of the work to be performed:

Additional procedures
We shall carry out a review of each quarter’s results for the purposes of Gencor’s 10Q return.

We accordingly hold that Gencor is bound by its subsidiary’s agreement that disputes arising out of the engagement would be litigated in the United Kingdom.

This analysis does not change because the cause of action sounds in tort. Gencor chose not to sue for breach of contract, but it did sue for professional negligence alleging that DTGP owed Gencor a duty to conduct Gencor ACP’s audit with due care. After Max Mitchell, Section 552 of the Restatement is the device Florida courts recognize as the remedy for damage caused by the furnishing by accountants of reports based on negligent audit or accounting work, at least for third parties not in the relationship of privity or near privity that under prior law was the limit of accountant liability in Florida. It is unclear whether a party who is within the traditional zone of liability has a section 552 claim as well. Max Mitchell’s extension of liability beyond privies or “near privies” does not mean that the existence of such relationships in a given case is without legal effect. Had the plaintiff been a third party bank making lending decisions on the basis of the report or an investor making an investment decision based on a published audit, the analysis would not be the same. Here, however, it was not only Gencor ACP’s work but Gen-cor’s work that DTGP performed and Gen-cor is bound by the terms of the engagement letter its wholly owned subsidiary executed, pursuant to which the work was performed and paid for.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and TORPY, JJ., concur.

      . The denial of DTGP's dismissal based on the statute of limitations is not an issue in this appeal.

      . The specific statutory language is, "submits himself or herself ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts."

      . The terms and conditions under which DTGP communicated with Deloitte U.S. are not clear. In the affidavit of John Elliott, an executive vice-president of Gencor, he asserts that DTGP agreed with Deloitte U.S. to perform accounting and auditing services for bolh Gencor's fiscal 1998 quarterly and consolidated financial reporting process. He also asserts DTGP was aware this was for Gencor’s use. Elsewhere, however, the record reflects that DTGP acted solely pursuant to its engagement with Gencor ACP.

      . We do not suggest that these are true facts, only that these claims were not refuted in the jurisdictional filings and discovery.

      . Florida courts also have enforced other types of contract clauses against non-signatories. See, e.g., Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, 778 So.2d 1089, 1090 (Fla. 4th DCA 2001); Terminix Int'l Co. v. Ponzio, 693 So.2d 104, 109 (Fla. 5th DCA 1997); Zac Smith & Co. v. Moonspinner Condo. Assn, 472 So.2d 1324, 1324 (Fla. 1st DCA 1985).

      . Throughout the complaint, Gencor refers to Gencor ACP as being its “material wholly-owned subsidiary.”


author: VILLANTI, Judge.

text:
    Antwan E. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4656.
    District Court of Appeal of Florida, Second District.
    May 19, 2006.

      Antwan E. Brown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

We affirm Antwan Brown’s appeal of his judgment and sentence entered after he pleaded guilty. We do so without prejudice for him to file a motion under Florida Rule of Criminal Procedure 3.800(a) when the mandate in this case has issued and jurisdiction has returned to the circuit court. Any motion should not be deemed successive based upon the circuit court’s denial of Brown’s pro se motion to correct illegal sentence. See Schrader v. State, 890 So.2d 312 (Fla. 2d DCA 2004) (holding that a circuit court did not have jurisdiction to rule on a defendant’s rule 3.800(a) motion filed during the pendency of his direct appeal).

Affirmed.

DAVIS and CANADY, JJ., Concur.


text:
    Jerry BARR, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1675.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2006.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Busby v. State, 894 So.2d 88, 95 (Fla.2004) (stating “[i]t is within a trial court’s province to determine whether a challenge for cause is proper, and a trial court’s determination of juror competency will not be overturned absent manifest error”) (quoting Fernandez v. State, 730 So.2d 277, 281 (Fla.1999)); Johnson v. State, 660 So.2d 637, 644 (Fla.1995) (stating- “[o]n this question [determining juror competency], the trial court is in the best position to observe the attitude and demeanor of the juror and to gauge the quality of the juror’s responses. If there is competent record support for the trial court’s conclusions regarding rehabilitation, the appellate courts of this state will not reverse the determination on appeal based on a cold record”).

AFFIRMED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


author: BROWNING, J.

text:
    Roy L. BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2852.
    District Court of Appeal of Florida, First District.
    May 22, 2006.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Roy L. Bush seeks review of the judgment revoking his probation, and the resulting sentence. He alleges that the State did not demonstrate his violation to be willful and substantial, that he should have been sentenced under the 1994 sentencing guidelines rather than the 1995 guidelines, that the trial court erred in basing the departure sentence on the facts of the violation, and that he should not have been assessed victim injury points for sexual penetration. For the reasons stated below, we affirm the revocation, but reverse the sentence and remand for re-sentencing.

Bush was originally convicted of committing a lewd and lascivious act on a child and placed on probation; one of the conditions of his probation was that he not possess pornographic materials. Without further discussion, we hold that the trial court did not abuse its discretion in revoking Appellant’s probation because the record contains sufficient facts from which the trial court could have inferred Bush’s knowledge of the materials’ presence. Cf. Chicone v. State, 684 So.2d 736, 740-41 (Fla.1996) (holding that possession as a criminal offense includes knowledge of the contraband).

However, we agree with Bush (and the State concedes) that, under Heggs v. State, 759 So.2d 620 (Fla.2000), Appellant is entitled to be resentenced under the 1994 sentencing guidelines. See Richardson v. State, 829 So.2d 364 (Fla. 1st DCA 2002). We also agree with Bush that the trial court’s stated basis for the departure sentence, that “the violation involves obscene or pornographic materials which was a special condition of your probation,” is impermissible because factors related to a probation violation cannot be used to support a departure sentence; accordingly, the trial court reversibly erred by basing his departure sentence on such factor. See Lambert v. State, 545 So.2d 838, 842 (Fla.1989), cited in Vann v. State, 801 So.2d 326, 326 (Fla. 1st DCA 2001).

The issue concerning victim injury points is moot in light of the need for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

WOLF and WEBSTER, JJ„ concur.