author: CANADY, Judge.

text:
    John SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1859.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

In this appeal from a conviction for driving while license revoked (habitual traffic offender), defendant John Simpson challenges the denial of his dispositive motion to suppress. Because we conclude that the motion to suppress should have been granted, we reverse.

The defendant was driving his wife’s vehicle when he was stopped by a police officer. The defendant’s wife, Sherrie Lynn Simpson, was riding in the passenger seat. The defendant was driving with a revoked license, and he was therefore arrested. In his motion to suppress, the defendant asserted that the stop was illegal. He contended that the officer stopped the vehicle on the basis that the tag should be seized if the owner, Sherrie Lynn Simpson, was the driver and that the officer could not have mistaken him for Sherrie Lynn Simpson.

At the hearing on the motion to suppress, the officer testified that he observed the vehicle being driven and that he ran the tag. He discovered an “FCIC warning that indicated that the registered owner had a suspended license for a Financial Responsibility for failure to maintain insurance on the vehicle. At that time [he] conducted a traffic stop.... ” The officer stated that he “had reason to believe that there was no insurance on the vehicle because of the FCIC warning.” He stated that the vehicle was registered to “a Ms. Sherrfie] Lynn Simpson” but that he could tell that the driver was a white male and that the passenger was a white female. According to the officer, he first made contact with the vehicle to “confirm ... whether or not there was insurance on the vehicle, because of the FCIC hit.” On cross-examination, the officer stated that the vehicle was registered to a woman and that he was aware that a man was driving when he approached the vehicle.

The trial court entered a written order denying the motion, finding that “[t]he State of Florida had been notified that the registered owner no longer carried insurance coverage on the vehicle to which the tag was assigned” and that “insurance coverage for the vehicle was still an open question when the driver was asked to produce his license and proof of insurance.” The defendant entered a no contest plea to the charge, reserving his right to appeal the denial of the dispositive motion to suppress. He was placed on thirty months’ probation.

On appeal, the defendant claims that the officer had no reasonable suspicion that a crime was being committed because although the officer learned that the female owner did not have insurance on the vehicle, he could tell that the driver of the car was a male before he approached the vehicle. The defendant argues that the officer had no reason to suspect that he was driving illegally or without personal insurance coverage.

“When a trial court’s ruling on a motion to suppress is reviewed on appeal, the trial court’s findings of historical fact are reviewed under a deferential standard, but the trial court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review.” State v. Hendrex, 865 So.2d 531, 533 (Fla. 2d DCA 2003). The facts in this case are undisputed; therefore, the issue is one of law.

The defendant cites State v. Diaz, 850 So.2d 435 (Fla.2003), and Fernandez v. State, 917 So.2d 1022 (Fla. 1st DCA 2006). In Diaz, 850 So.2d at 437, 440, the Florida Supreme Court held that an officer, who had pulled over a vehicle because he could not read the tag, no longer had justification for continuing the stop and asking for identification once he was able to observe, upon approaching the vehicle, that the tag was proper. In Fernandez, 917 So.2d at 1023-24, the officer did not have reasonable suspicion to continue the stop of a vehicle owned by a woman whose license was suspended when the officer realized that the driver was a man. In both cases, the purpose of the stop was satisfied before the officers asked the drivers for identification.

In order for the vehicle in this case to be in compliance with Florida’s Financial Responsibility Law, Sherrie Lynn Simpson, as owner of the vehicle, was required to have it insured if she or another person was operating it, see § 324.151(l)(a), Fla. Stat. (2005), unless that other person operating it had personal insurance coverage for the operation of any vehicles not owned by him, see § 324.151(l)(b). See also § 324.031 (providing that an owner or operator of a vehicle may show compliance with the financial responsibility law in four ways, including by furnishing proof of holding an owner’s or operator’s motor vehicle liability insurance policy). Even though the officer had reason to suspect that Sherrie Lynn Simpson did not have insurance coverage for the vehicle, the officer had no reason to suspect that the driver himself did not have the necessary insurance to operate the vehicle.

“For a reasonable suspicion to exist, ‘the detaining officer[] must have a particularized objective basis for suspecting the particular person stopped of ” violating the law. Hendrex, 865 So.2d at 534 (quoting United States v. Cortez, 449 U.S. 411, 411-12, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Once the officer was able to determine before approaching the vehicle that the driver was not female, the purpose of the stop — i.e., to ascertain whether the owner was driving the vehicle without insurance — had been satisfied. See Diaz, 850 So.2d at 437; Fernandez, 917 So.2d at 1024. At that point, the officer had no objective basis to suspect that the driver was operating the car without insurance in violation of the financial responsibility law.

Therefore, the trial court erred in denying the defendant’s motion to suppress. Accordingly, we reverse the judgment and order of probation and remand with directions to discharge the defendant.

NORTHCUTT, C.J., and SALCINES, J., Concur.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Raymond BORREGO, Respondent.
    No. 2D06-2438.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Petitioner.
    Robert R. Jacobs, II, Public Defender, and Michael Mummert, Assistant Public Defender, Fort Myers, for Respondent.
   KELLY, Judge.

The State seeks certiorari review of the trial court’s order requiring disclosure of the identity of a confidential informant (Cl), claiming that the order is a departure from the essential requirements of law for which there would be no remedy on appeal. Where there is no adequate remedy by appeal, an interlocutory pretrial order in a criminal case is subject to certiorari review when the order departs from the essential requirements of the law resulting in a miscarriage of justice. State v. Pettis, 520 So.2d 250 (Fla.1988); State v. Storer, 920 So.2d 754 (Fla. 2d DCA 2006). That standard has been met here. Borre-go failed to show that disclosure of the Cl’s identity was necessary to help him prepare a specific defense or to protect his constitutional rights and, therefore, the trial court departed from the essential requirements of the law in compelling disclosure.

Borrego was charged with possession and sale of marijuana after selling marijuana to a detective from the Lee County Sheriffs Office Narcotics Unit. According to the probable cause affidavit, the sale was set up by a Cl who telephoned Borre-go and arranged the meeting time and place. The Cl, equipped with a one-way radio and prerecorded U.S. currency, accompanied the undercover detective to the agreed-upon location. When Borrego arrived, the Cl introduced the detective to Borrego, who proceeded to negotiate the terms of the drug sale. The detective and the Cl then returned to their parked vehicle. Borrego pulled his car along side the detective’s car and tossed a baggie of marijuana to the detective. The detective handed Borrego money in return. After the sheriffs department confirmed that the substance was marijuana, the detective positively identified Borrego from a photograph as the person who sold him the marijuana. Borrego was arrested and charged with possession and sale of marijuana.

The defense moved to compel the State to produce any audio or video recordings of the transaction and to reveal the name and address of the CL At the hearing on the motion, the State argued that the defense was not entitled to the Cl’s identity because the Cl was not involved in the actual drug transaction except to the extent that he called Borrego to set up the deal. The State explained that it was the detective who completed the transaction and that the Cl was not going to be called as a witness at trial. Nevertheless, the trial court granted the motion to compel disclosure.

The State has a limited privilege to withhold the identity of persons who provide law enforcement officers with information about criminal activity. See Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Because the State has the privilege of nondisclosure, the burden is on the defendant claiming an exception to the rule to show why he is entitled to disclosure. Treverrow v. State, 194 So.2d 250, 252 (Fla.1967). The State’s privilege of nondisclosure may be overcome when an informant’s identity or the content of the informant’s communication would be relevant and helpful to a specific defense or when disclosure is “essential to a fair determination of the cause at issue.” McCray v. State, 730 So.2d 817, 817 (Fla. 2d DCA 1999); see Fla. R.Crim. P. 3.220(g)(2).

When asserting that disclosure of information is necessary to establish a specific defense, “[t]he defendant must make a preliminary showing of the colorability of the defense prior to disclosure.” State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989); see Harris v. State, 939 So.2d 338 (Fla. 4th DCA 2006), review dismissed, 946 So.2d 1070 (Fla.2006). The defendant must not only allege a legally cognizable defense, but he or she must also support the defense with sworn evidence. State v. Davila, 570 So.2d 1035, 1038 (Fla. 2d DCA 1990) (holding that the defendant failed to establish by sworn proof that disclosure of the confidential informant’s identity was necessary to a legally recognized defense). “A bare allegation that the defendant cannot prepare his case without disclosure is insufficient.” State v. Mashke, 577 So.2d 610, 612 (Fla. 2d DCA 1991).

Borrego’s motion to compel disclosure generally states that “[t]he defense is prejudiced in its attempt to prepare for trial without the above-referenced diseov-ery.” At the hearing on the motion, Bor-rego argued vaguely that the Cl’s identity was necessary to “perpetuate testimony and prepare for my case.” When the State argued that the Cl was not actively involved in the transaction, defense counsel’s rebuttal was simply that “[the Cl], I guess, placed the initial phone call.” This response was inadequate to assert a specific defense. See State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985) (holding that the conclusory contention that nondisclosure of the informant’s identity “would directly affect the Defendant’s opportunity to establish possible defenses,” was wholly inadequate). Therefore, Bor-rego was not entitled to disclosure on this basis.

Alternatively, the privilege of nondisclosure may give way when a defendant can show that disclosure of the Cl is “essential to a fair determination of the cause.” McCray, 730 So.2d at 817. This ground involves general due process concerns and is not confined to a defense raised by the defendant. Miller v. State, 729 So.2d 417, 419 (Fla. 4th DCA 1999). “Florida courts have ordered the disclosure of a confidential informant where such was deemed essential in order to guarantee the defendant his due process right to a fair trial,” including the defendant’s right “to confront the witnesses against him.” State v. Zamora, 534 So.2d 864, 869 (Fla. 3d DCA 1988). Borrego has also failed to carry his burden of establishing this basis for disclosure. He did not allege that he was denied the right to confront and cross-examine the Cl for any particular purpose. He failed to counter the State’s argument that disclosure was unnecessary because it did not intend to call the Cl to identify Borrego or to testify about the drug transaction at trial.

Because Borrego has not shown that disclosure was necessary for the preparation of his defense or that his constitutional rights were infringed upon, the trial court departed from the essential requirements of the law in ordering the State to disclose the Cl’s identity. Accordingly, we grant the State’s petition and quash the order compelling disclosure.

Petition granted.

SILBERMAN, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Florida Rule of Criminal Procedure 3.220(g)(2), states that "[disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.”

      . Borrego's counsel argues on appeal that the Cl can give information as to the telephone number used to make the call, or establish a conflict in the evidence as to identity; however, those arguments were not made to the trial court.


author: ALTENBERND, Judge.

text:
    Michael Grant KRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3583.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Michael Grant Kramer appeals two judgments and sentences that adjudicated him guilty of grand theft of a motor vehicle, driving while license suspended as a habitual traffic offender, providing a false name to a law enforcement officer, and resisting arrest without violence. Mr. Kramer entered an open plea of guilty to the charges before Judge Lauren C. Laughlin, and sentencing was deferred to a later date. Thereafter, Judge Laughlin was apparently transferred to another division of the circuit court and Mr. Kramer’s case was assigned to Judge Robert J. Morris, Jr., who granted Mr. Kramer a series of continuances to prepare his arguments for a downward departure sentence. Ultimately, Judge Morris sentenced Mr. Kramer to 37.8 months in prison, the minimum sentence required by the guidelines for grand theft of a motor vehicle, and to a consecutive term of five years’ probation for driving while his license was suspended as a habitual traffic offender. The remaining offenses resulted in sentences of time served.

On appeal, Mr. Kramer argues only that his sentences must be reversed pursuant to Florida Rule of Criminal Procedure 3.700(c)(1) because Judge Laughlin accepted his plea and therefore had to preside at the imposition of the sentences unless there was a showing that a substitution of judges was necessary. Although Mr. Kramer did not object to Judge Morris presiding at his various sentencing hearings, Mr. Kramer preserved this argument by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Judge Laughlin considered this motion and denied it, reasoning in part that there was no need for her to conduct the sentencing hearing when she knew little about the case, having simply accepted Mr. Kramer’s plea. We reverse.

Mr. Kramer correctly notes that the reassignment of a judge to a different division does not make sentencing by a successor judge necessary under rule 3.700(c)(1). See Clemons v. State, 816 So.2d 1180, 1182 (Fla. 2d DCA 2002). Further, the rule applies equally to a judge who accepts a plea and therefore may know very little about the facts of the case as well as to a judge who presides at a trial and becomes intimately familiar with the details of the crimes. See Fla. R.Crim. P. 3.700(c)(1); Madrigal v. State, 683 So.2d 1093, 1096-97 (Fla. 4th DCA 1996). It was therefore error for a successor judge to proceed with Mr. Kramer’s sentencing and error to deny the rule 3.800(b)(2) motion raising this issue. See Young v. State, 950 So.2d 516 (Fla. 2d DCA 2007); Lopez v. State, 905 So.2d 1045 (Fla. 2d DCA 2005); Snyder v. State, 870 So.2d 140 (Fla. 2d DCA 2004); of. Home v. State, 918 So.2d 1011 (Fla. 2d DCA 2006) (granting petition alleging ineffective assistance of appellate counsel where appellate counsel failed to file a rule 3.800(b)(2) motion challenging a violation of rule 3.700(e)(1)); Hakkenberg v. State, 889 So.2d 935 (Fla. 2d DCA 2004) (same). We therefore reverse the sentences imposed and remand for resentencing before Judge Laughlin, at least in the absence of a showing that it is necessary for another judge to preside at sentencing.

Judgments affirmed; sentences reversed and remanded for resentencing.

SALCINES and VILLANTI, JJ., Concur.

      . It is noteworthy that Judge Morris fully acquainted himself with the facts of this case. We are reversing this sentence, which is a bottom-of-the-guidelines sentence, only because of the case law interpreting the word "necessary” in Florida Rule of Criminal Procedure 3.700(c)(1). We question whether the language of this rule establishes the best policy for sentencing at this time, or whether a defendant who wishes to assure a specific judge at a delayed sentencing hearing following a plea should be required to condition the plea expressly on that right.

      . In Scott v. State, 909 So.2d 364, 369 (Fla. 5th DCA 2005), the Fifth District posited that if rule 3.700(c)(1) applied in a probation revocation context, a violation of the rule should be preserved by a contemporaneous objection and not by a later motion filed pursuant to rule 3.800(b). See also Griffin v. State, 946 So.2d 610, 613 (Fla. 2d DCA 2007), review granted, 961 So.2d 933 (Fla.2007) (noting that rule 3.800(b) was not intended to circumvent rules requiring contemporaneous objections or enforcing principles of waiver). There may be some merit to this position, but this court has previously corrected the error when preserved by a motion to correct sentence under rule 3.800(b). See, e.g., Young, 950 So.2d at 516-17.


author: PER CURIAM.

text:
    James A. GALLOGLY, Appellant, v. Rene RODRIGUEZ, Bruce Ashley, and Keith Hamilton, Appellees.
    No. 2D06-5118.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.

      Jeffrey A. Blau, Tampa, for Appellant.
    Jason G. Gordillo, Tampa, for Appellee Rene Rodriguez.
    Jason D. Montes and Anthony J. Petrillo of Luks, Santaniello, Perez, Petrillo & Gold, P.A., Tampa, for Appellees Bruce Ashley and Keith Hamilton.
   PER CURIAM.

James A. Gallogly seeks review of the trial court’s order dismissing his amended complaint for intentional infliction of emotional distress with prejudice. Gallogly argues that the trial court erred in concluding that the alleged conduct by defendants Rene Rodriguez, Bruce Ashley, and Keith Hamilton is not the type of extreme and outrageous conduct needed to support a claim for intentional infliction of emotional distress as a matter of law. We agree and reverse.

The elements of the tort of intentional infliction of emotional distress are:

(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
(3) the conduct caused emotion[al] distress; and
(4) the emotional distress was severe.

LeGrande v. Emmanuel, 889 So.2d 991, 994-95 (Fla. 3d DCA 2004) (quoting Clemente v. Home, 707 So.2d 865, 866 (Fla. 3d DCA 1998)). The Restatement of Torts defines the type of outrageous conduct needed to support the second element of the tort:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Restatement (Second) of Torts § 46 cmt. d (1965).

Gallogly’s complaint alleged that defendants Rodriguez, Ashley, and Hamilton, who were police officers, conducted a continuing campaign of harassment by running a drug and prostitution ring out of Gallogly’s bottle club and refusing to investigate illegal activities inside or associated with the bottle club while harassing Gal-logly and his employees to ensure their silence. While the veracity of Gallogly’s allegations is certainly questionable, we are required to accept his allegations as true for purposes of the motion to dismiss. See Hernandez v. Tallahassee Med. Ctr., Inc., 896 So.2d 839, 841 (Fla. 1st DCA 2005).

We are also required to give greater weight to the fact that the defendants had actual or apparent authority over Gal-logly as police officers. “The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.” Restatement (Second) of Torts § 46 cmt. e (1965). The following illustration in the Restatement is helpful:

5. A, a private detective, calls on B and represents himself to be a police officer. He threatens to arrest B on a charge of espionage unless B surrenders letters of a third person which are in her possession. B suffers severe emotional distress and resulting illness. A is subject to liability to B for both.

The alleged police conduct in this case is comparable to the extortion in the above illustration and in Lashley v. Bowman, 561 So.2d 406 (Fla. 5th DCA 1990). The complaint in Lashley was filed after a customer was arrested for failing to pay her bill at a restaurant. Id. at 407. The customer had ordered lobster but asserted it was frozen in the middle. She asked the server if she could substitute fried shrimp for the frozen lobster, but the server replied that the customer would have to pay for both meals. The customer asked for the manager, who sent the lobster back to be recooked. When the customer asserted that she did not want the lobster recooked, the manager told her he would call the police if she did not pay for the lobster. The customer asserted that the lobster was still undercooked when it was returned to her, and she told the manager that it was not edible and she would not pay for it. The manager again threatened to call the police if the customer did not pay, and she called his bluff. The manager did call the police, and the customer was arrested in the restaurant for defrauding an innkeeper.

After the charges were dropped, the customer sued the manager. Id. at 408. The trial court granted summary judgment for the manager on the customer’s intentional infliction of emotional distress claim, but the Fifth District reversed. Id. at 408-10. The court held that the manager’s actions in extorting money from the customer for inedible food were sufficiently outrageous to meet the standard for recovery for intentional infliction of emotional distress. Id. at 410.

As in the Restatement illustration and Lashley, there existed a relationship of authority in this case that would lead Gal-logly to believe he was subject to arrest for not giving in to the demands of the defendants. In fact, the alleged conduct in this case is more egregious than that in the illustration or in Lashley because it goes further than a single threat and encompasses a campaign of extortion by police officers that led to the demise of Gal-logly’s business. This conduct, if proven, goes beyond the bounds of decency and would cause the average member of the community to exclaim, “Outrageous.” Accordingly, the trial court erred in concluding that the alleged conduct does not support a claim for intentional infliction of emotional distress as a matter of law.

Reversed.

NORTHCUTT, C.J., and STRINGER and VILLANTI, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Solomon BERNSTEIN, Appellee.
    No. 4D06-4663.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    John G. George of John G. George, P.A., Ft. Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, 969 So.2d 1209 (Fla. 4th DCA 2007).

POLEN, KLEIN and MAY, JJ., concur.


author: GROSS, J.

text:
    Luis Orlando VASQUEZ, Petitioner, v. James R. McDONOUGH, Secretary, Department of Corrections, State of Florida, Respondent.
    No. 4D07-3778.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.

      Luis Orlando Vasquez, Sneads, pro se.
    No brief filed for respondent.
   GROSS, J.

Petitioner filed a petition for writ of habeas corpus in the Supreme Court, which the Court treated as a petition for writ of mandamus and transferred to this court.

The petition raises the same issue petitioner previously filed in this court in case number 4D07-2465. We denied that petition without a written opinion.

Briefly, petitioner’s claim is that his 2002 plea must be vacated because trial counsel failed to file a motion to suppress petitioner’s statements to law enforcement. Petitioner did not raise this issue in a rule 3.850 motion filed in 2004. He attempted to amend that motion, but the trial court refused to allow the amendment because it was filed beyond the two year time limit. See Fla. R.Crim. P. 3.850(b). Petitioner then filed a petition for writ of habeas corpus claiming that the two year time limit of rule 3.850 was void because it unconstitutionally suspended the writ of habeas corpus. In the petition in this case, petitioner makes the same claim that was rejected in case number 4D07-2465.

We also note that the underlying claim is without merit. Petitioner contends that the Miranda warnings in his case were the same as those involved in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004). However, this claim is false. The Miranda rights form used by the Coral Springs Police Department in this case contains warnings that this court found sufficient in Cañete v. State, 921 So.2d 687 (Fla. 4th DCA 2006).

Post-conviction relief cases comprise about 30 percent of the case load of this court. Sadly, this case is a paradigm for many such cases — frivolous arguments, based upon misrepresentations of fact, brought multiple times, in multiple courts.

Petition for writ of mandamus denied.

WARNER and HAZOURI, JJ„ concur.


text:
    Kelly VICTOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4298.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Kelly Victor, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, -without prejudice to appellant’s right to refile a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a) which shows where in the record information can be located to show that he is entitled to additional jail credit for time served prior to his September 15, 2005 sentencing. Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998).

GROSS, HAZOURI and MAY, JJ., concur.


author: PLEUS, J.

text:
    Michael Joseph MARRA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3596.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

Marra appeals his conviction for lewd and lascivious conduct regarding a minor. Of the six issues Marra raises on appeal, we find one that merits discussion and reversal.

Marra was charged by information with capital sexual battery on E.R. (Count I), lewd and lascivious molestation of A.S. (Count II), and lewd and lascivious conduct regarding A.S. (Count III). The jury-found Marra not guilty on Count I, guilty of battery, a lesser-included offense, on Count II, and guilty, as charged, of lewd and lascivious conduct on Count III. The trial court later dismissed' Count II as “merged” into Count III and sentenced Marra to fifteen years in prison with the last seven suspended pending successful completion of sex offender probation.

Count III of the information alleged that Marra “did intentionally touch [A.S., a minor under sixteen] in a lewd or lascivious manner by tongue kissing or ‘French’ kissing [A.S.].” A.S., who was eleven years old at trial, testified she was awakened by someone rubbing her lower tummy. When she looked up and said “Mom,” someone “put their hand over my mouth and tried to tongue kiss me.”

Q. Explain to the jury what you mean by they put their hand over your mouth and tried to tongue kiss you. How were they — How did they do that?
A. They put their hand on my mouth like this and then they moved their hand and tried to tongue kiss me.
Q. And where did they try to tongue kiss you?
A. On my mouth. ■
Q. And what did you do?
A. And I moved my head like ... just a little bit and a little bit -of the spit got on to my cheek.

On cross-examination, A.S. defined a tongue kiss as “like a French kiss.” Her mother told her what a French kiss was before the incident occurred. A.S. further explained that there were two kisses. The first time, A.S. turned her head, but knew Marra was tongue kissing her when his mouth touched her face and “at one point he did get a little bit of spit in my mouth.” The second kiss was on her lips. She knew it was a tongue kiss by the way it felt on her lips.

On redirect examination, the prosecutor asked A.S. if Marra kissed her inside her cheek or outside her cheek. A.S. replied, “At one point he got a little bit of his spit inside my mouth, but he didn’t kiss me inside my cheek.” Marra’s taped police interview was played to the jury. In it, Marra repeatedly stated that he kissed A.S. good night on the cheek.

At the close of evidence, defense counsel moved for judgment of acquittal on Count III, arguing that the State had not sufficiently established proof of the alleged tongue or French kiss because: (1) A.S. turned her head, preventing the kiss from happening; (2) A.S. did not see Marra’s tongue; (3) Marra’s tongue did not enter A.S.’s mouth; and (4) there was no evidence of any lewd or lascivious intent behind the kiss. The trial court denied the motion, ruling that the issue of Marra’s intent in kissing A.S. was a jury question. Defense counsel later renewed her motion, which was denied.

On appeal, Marra argues that the trial court erred in denying his motion for judgment of acquittal because the evidence did not establish a tongue kiss or French kiss, as alleged in the information. At most, he argues, it established an attempt. The de novo standard of review applies. Harris v. State, 954 So.2d 1260, 1261 (Fla. 5th DCA 2007).

Marra correctly asserts that the allegations in the information were not surplus-age. This Court has previously held that “[w]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment_” D.R. v. State, 790 So.2d 1242, 1244 (Fla. 5th DCA 2001) (quoting Long v. State, 92 So.2d 259, 260 (Fla.1957)). Thus, the question is whether the evidence established that Marra tongue or French kissed A.S. Those terms were not defined in the information, statute or jury instructions. When the Legislature has not defined a statutory term, courts should construe it according to its ordinary and common meaning. V.K.E. v. State, 934 So.2d 1276, 1292 (Fla.2006).

Marra notes that one prior Florida case discussed the term “French kiss.” Altman v. State, 852 So.2d 870 (Fla. 4th DCA 2003). In Altman, the defendant was charged with lewd assault by “kissing and inserting his tongue into the mouth of the victim.” Id. at 872. On appeal, he challenged the assessment of sexual contact points on his sentencing scoresheet for French kissing the minor victim. He also argued that the jury did not find that he French kissed the victim. The appellate court rejected both arguments.

In a footnote, the court stated, “ ‘French kiss,’ however, is defined as ‘a kiss in which the tongue enters the partner’s mouth.’ The American Heritage Dictionary 533 (2d col.ed.1986).” Id. at 873 n. 3. The court noted the victim’s testimony that on one occasion, the defendant thrust-ed his tongue against her tongue. The victim tried to clench her teeth to stop him but the defendant put his hand on her chin and forced his tongue down. Id. at 871. On another occasion, the defendant kissed the victim with his tongue inside her mouth. Id. at 872.

No other Florida cases define the terms “tongue kiss” or “French kiss.” “Tongue kiss” is not defined in the dictionary. “French kiss” is defined as “a kiss with contact between tongues,” “an open-mouth kiss usually involving tongue-to-tongue contact,” or “[a] kiss in which the tongue enters the partner’s mouth.” The common denominator in these definitions is a kiss with either tongue to tongue contact or the tongue going inside another person’s mouth.

In the instant case, the evidence and inferences established a kiss in which Mar-ra’s tongue made contact with A.S.’s cheek and lips. It did not make contact with her tongue or go inside her mouth. Thus, based on the commonly understood meanings, the evidence did not establish a “French kiss.”

Instead, the evidence established an attempt. Section 777.04, Florida Statutes (2004), defines an attempt as occurring when “[a] person ... does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof.” In this case, Marra clearly attempted to French kiss A.S., but was prevented from French kissing her because A.S. moved her head on the first attempt and had her lips closed on the second attempt.

Accordingly, we reverse Marra’s conviction on Count III. As Marra did not dispute kissing A.S., the only other issue was whether the kiss was lewd or lascivious. That was a jury question that the jury resolved against Marra, as demonstrated by its rejection of the lesser-included offense of battery. At oral argument, Mar-ra’s counsel properly conceded that this Court has authority to remand for adjudication on attempted lewd and lascivious conduct. Therefore, we remand for adjudication and sentence on the lesser-included offense of attempted lewd and lascivious conduct, a third degree felony. See State v. Sigler, 967 So.2d 835 (Fla.2007) (finding that appellate court has authority to direct adjudication for lesser offense when jury has determined all elements of lesser offense); Harris, 954 So.2d at 1262 (reversing possession with intent to sell conviction and remanding for imposition of lesser crime of simple possession); Gray v. State, 939 So.2d 1095, 1097 (Fla. 1st DCA 2006) (reversing kidnapping conviction and remanding for imposition of lesser offense of false imprisonment).

REVERSED AND REMANDED WITH INSTRUCTIONS.

GRIFFIN, J., and PERRY, B., Associate Judge, concur.

      . Although the information alleged that Mar-ra committed this crime by tongue kissing or “French” kissing, which suggests the terms are disjunctive, the State conceded at oral argument that the terms are conjunctive. In essence, they mean the same thing.

        . The Oxford American College Dictionary 536 (2002 ed.).

      . Merriam-Webster Online Dictionary, available at http://m-w.com/dictionary/Frenchkiss.

        . The American Heritage Dictionary of the English Language (4th ed.2000), available at: http:llwww.bartleby.com/cgi-binltexisl webinator/ahdsearch? search-type=enty&query=French + kiss&db=ahd.


author: PALMER, C.J.

text:
    Ross ORTA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2716.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, C.J.

Ross Orta appeals his judgment and sentence claiming that the trial court erred by denying his request for new counsel. We agree and therefore, reverse.

Orta pled guilty to the charge of fleeing or attempting to elude at high speed and was sentenced to a term of two years of probation. He subsequently pled guilty to violating his probation and received a sentence of 18 months’ community control. The order of community control included a provision that Orta live and remain at liberty without violating any law.

An affidavit of violation of community control was subsequently filed alleging that Orta had committed the criminal offense of domestic violence. After three continuances, the matter proceeded to a hearing. During the hearing, Orta’s counsel requested a fourth continuance arguing that she was not prepared to proceed. After listening to his counsel admit she was unprepared, Orta asked the trial court to appoint new counsel.

The trial court denied Orta’s request for new counsel, stating that Orta had not sufficiently demonstrated, pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), that his lawyer was not fulfilling her job or was incompetent. The trial court indicated that it did not have an obligation to discharge counsel and to provide Orta with another court-appointed attorney, and that Orta’s only choice, if he discharged his council, was to represent himself. Orta declined to discharge his attorney under those circumstances. The hearing proceeded. At the conclusion of the hearing, Orta was found guilty of violating his probation.

Orta moved for rehearing based on the fact that, after the violation of probation hearing, he was found not guilty by a jury on the underlying charge of domestic violence. The trial court denied the motion for rehearing and sentenced Orta to a term of eight years in the Department of Corrections.

Orta claims that the trial court erred by failing to discharge his counsel and to appoint new counsel. We agree.

When a defendant seeks to discharge his court-appointed counsel citing incompetency of counsel, the trial court should determine whether there is reasonable cause to believe that the court-appointed counsel is rendering ineffective assistance. If reasonable cause exists, the court should make such a finding on the record and appoint a substitute attorney, who should be allowed adequate time to prepare a defense. Weaver v. State, 894 So.2d 178 (Fla.2004).

Orta’s counsel stated repeatedly that she was unprepared to proceed to trial. While counsel’s admissions of incompetence are not binding on the trial court, the record is clear that trial counsel had failed to take any of the steps reasonably necessary to prepare for this hearing. On these facts, Orta had a legitimate complaint about his attorney and reasonable cause existed that his attorney was not competent to try the case. Accordingly, the trial court abused its discretion by failing to appoint new counsel for Orta. See Guardado v. State, 965 So.2d 108 (Fla.2007)(holding a trial court’s decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion).

REVERSED and REMANDED.

PLEUS and LAWSON, JJ., concur.


author: MONACO, J.

text:
    William Francis ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3454.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Bradley S. Sherman, Deland, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

William Francis Roberts appeals from the judgment and sentence of the trial court in which he was adjudged guilty of an aggravated assault with a firearm after having been convicted of that offense by a jury. We affirm the judgment and sentence in all respects.

Mr. Roberts first asserts that the trial court should have granted his motion for judgment of acquittal. Leaving aside the issue of whether the alleged error was preserved for appeal, we conclude that the motion was properly denied in any event. The Florida Supreme Court has told us on a number of occasions that the fact that the evidence presented is contradictory does not warrant a judgment of acquittal because the weight of the evidence and the credibility of the witnesses are questions solely for the jury. See Williams v. State, 967 So.2d 735 (Fla.2007); Fitzpatrick v. State, 900 So.2d 495, 508 (Fla.2005). See also State v. Lalor, 842 So.2d 217, 219-20 (Fla. 5th DCA 2003). Here, there was more than sufficient evidence to convict Mr. Roberts of the crime.

Next, Mr. Roberts urges that the trial court erred in declining to read back the testimony of one of the witnesses when a single juror requested him to do so. The court met with the parties and determined that it was not inclined to honor the request. We note, first, that there was no objection by Mr. Roberts to the trial court’s decision not to read back the testimony, and we accordingly conclude that the purported error was not preserved. Secondly, the claim is without merit. A trial court has broad discretion in deciding whether to have testimony re-read to the jury. See State v. Riechmann, 777 So.2d 342, 365 (Fla.2000); Coleman v. State, 610 So.2d 1283, 1286 (Fla.1992), cert. denied, 510 U.S. 921, 114 S.Ct. 321, 126 L.Ed.2d 267 (1993); Roper v. State, 608 So.2d 533, 535 (Fla. 5th DCA 1992). Here, it is clear that the trial court considered the request of the juror and made a reasoned decision not to have the testimony re-read. We find no abuse of discretion.

Accordingly, the judgment and sentence is affirmed.

AFFIRMED.

ORFINGER and LAWSON, JJ., concur.

      . See § 784.021(l)(a) and § 775.087(2), Fla. Stat. (2004).


author: EVANDER, J.

text:
    M.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1958.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

M.M. appeals from an order finding her in contempt for violation of a behavior order. She contends the behavior order was not authorized by the legislature and, therefore, was invalid. We find M.M. has waived this issue.

First, M.M. did not object to the entry of the behavior order until after she was alleged to have violated the order. (In lieu of releasing M.M. upon the condition that she comply with the behavior order, the trial court could have required M.M. to remain in secured detention.) Second, M.M. entered a nolo contendere plea to the contempt charge without expressly reserving the right to appeal the validity of the behavior order. See Fla. RApp. P. 9.140(b)(2)(A)®.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


text:
    Margarita SOCARRAS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D07-2398.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Margarita Socarras, Orlando, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Robinson v. Sun Bank & Trust Co., 685 So.2d 1325 (Fla. 2d DCA 1996) (holding that the appellate court must accept appeals referee’s finding of untimeliness and affirm Unemployment Appeals Commission’s order dismissing claimant’s appeal as untimely where it appeared that claimant did not appeal decision within twenty days and did not dispute that notice of appeal was untimely).

THOMPSON, TORPY and LAWSON, JJ., concur.


text:
    Sherman CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3519.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Sherman Carter, Tavares, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Carter appeals the summary denial of his Rule 3.800(a) motion in which he alleged that he was entitled to additional jail-time credit. In denying the motion, the trial court found that Carter had signed a written plea agreement “agreeing to credit for time served from the date of arrest on the violation of probation only.” However, the trial court did not attach a copy of the written plea agreement to conclusively refute Carter’s claim to additional credit. Accordingly, we reverse and remand for the trial court to either attach portions of the record refuting Carter’s claim, or to grant the requested relief. Friss v. State, 881 So.2d 38 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

GRIFFIN, TORPY and EVANDER, JJ., concur.

      . Fla. R.Crim. P. 3.800(a).


author: SALCINES, Judge.

text:
    S.A.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1120.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

S.A.S., a juvenile, appeals his adjudication for third-degree grand theft. We reverse and remand.

An essential element of third-degree grand theft is proof that the value of the stolen property is $300 or more at the time of the theft. § 812.014(2)(c)(l), Fla. Stat. (2006). At the adjudicatory hearing the victim testified regarding the purchase price of the items she had obtained many years prior to the burglary. No other evidence was given to establish the value of the items at the time of the theft. “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). Testimony only of the purchase price of an item without establishing the value at the time of the theft is insufficient to sustain a finding of guilt of third-degree theft. See Pickett v. State, 839 So.2d 860, 862 (Fla. 2d DCA 2003).

The evidence was insufficient to establish that the value of the victim’s property at the time of the theft was more than $300. S.A.S.’s adjudication is reversed, and the matter is remanded to the trial court. On remand, the trial court is directed to reduce the grand theft to petit theft and enter a new disposition order. See Jones v. State, 958 So.2d 585, 586 (Fla. 2d DCA 2007).

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


author: VILLANTI, Judge.

text:
    Randy REAVES, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1970.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.
   VILLANTI, Judge.

Randy Reaves appeals the postconvietion court’s order on his motion to accredit jail time filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions.

Reaves was arrested for possession of a controlled substance (count two) and driving while license suspended or revoked (count three) on August 29, 2003. He was not arrested for sale or delivery of cocaine (count one) until September 26, 2003, although this offense also took place on August 29, 2003.

In his motion, Reaves claims that he is entitled to a total of 511 days’ jail credit. The postconviction court granted the motion but determined that he was only entitled to 406 days for count one, 433 days for count two, and 312 days for count three. It appears that each count of Reaves’ sentence stems from the original police stop and investigation conducted on August 29, 2003. The sale and delivery count was later added as evidenced by an arrest on September 26, 2003. However, all three counts were disposed of under the same case number. Reaves alleges he remained in jail continuously from August 29, 2003, until the February 4, 2004, sentencing hearing for acts alleged from the original police stop and investigation.

Because the record does not conclusively refute Reaves’ claim that he was in custody continuously on counts that stem from the same stop and police investigation, we reverse and remand. See McQueen v. State, 870 So.2d 77 (Fla. 2d DCA 2003). Also, because Reaves’ “claim for jail credit involves a disputed issue of fact and he filed his sworn motion within two years of his ... sentence becoming final, the postconviction court should have treated his motion as filed pursuant to rule 3.850.” Richie v. State, 959 So.2d 433, 434 (Fla. 2d DCA 2007); see also Rinderer v. State, 857 So.2d 955 (Fla. 4th DCA 2003) (observing that the postconviction court has discretion to consider a sworn and facially sufficient motion under rule 3.850 even if improperly labeled as a rule 3.800 motion).

Accordingly, on remand the postconviction court shall attach portions of the record that conclusively refute Reaves’ claim or, if necessary, hold an evidentiary hearing. Reaves appears to be scheduled for release in July 2008; therefore, his motion should receive immediate attention because any additional jail credit might prompt an earlier release.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.


text:
    Kelly Lynn GUTHRIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4910.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Kelly Lynn Guthrie appeals a restitution order entered against her after she pleaded no contest to second-degree grand theft. The restitution order requires her to pay a total of $34,190 to the victim of her crime. We find competent, substantial evidence supporting the order, with the exception of the amount of loss associated with certain Chrysler truck payments. Indeed, the victim himself testified that the amount included in evidence for the Chrysler payments was a mistake. Specifically, the evidence erroneously identified $3745.89 in Chrysler losses when it should have identified only $1191.26 in Chrysler losses. Because the court did not adjust the total amount of restitution to account for this admitted mistake, the court abused its discretion in awarding restitution of $34,190. Notably, the State rightfully concedes this error. Accordingly, we reverse the restitution order and remand only to correct the total amount of restitution from $34,190 to $31,635.37. Ms. Guthrie does not need to be present at any hearing to make such correction. We affirm the order in all other respects.

Reversed and remanded with instructions.

CASANUEVA and SILBERMAN, JJ., Concur.


author: LaROSE, Judge.

text:
    In the Interest of D.G., a child. N.L.E., Petitioner, v. Department of Children and Family Services, Respondent.
    No. 2D07-1969.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.

      Jessica C. Tien of Tien Law Group, Tampa, for Petitioner.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Respondent.
   LaROSE, Judge.

N.L.E. seeks certiorari review of the trial court’s order requiring chemotherapy and radiation treatment for her son. We deny the petition for the reasons explained below.

N.L.E.’s son, D.G., has a rare form of cancer. In late February and March 2007, after removal of a tumor, D.G.’s two physicians recommended chemotherapy. At that' time, N.L.E. researched alternative treatments. In March, a third physician advised N.L.E. that D.G.’s cancer was curable and that he should undergo chemotherapy.

On April 5, 2007, a fourth physician insisted that D.G. begin radiation treatments. N.L.E. refused to sign the authorization; she wanted another opinion. On April 11, 2007, the Department of Children and Family Services (DCF) filed a petition for dependency and an “Emergency Motion for Medical Treatment,” seeking immediate chemotherapy and radiation treatment for D.G. N.L.E. received the motion and notice of hearing for arraignment just a few hours before a scheduled April 11 hearing.

The hearing began with the judge, a court reporter, an assistant state attorney representing DCF, and .N.L.E. present. Attorney Linda Clark was “told to call in” and appeared by telephone. Our record is unclear as to whether Ms. Clark actually had been appointed to represent N.L.E. We do know, however, that she had spoken with N.L.E. earlier. Ms. Clark advised the trial court as follows:

[N.L.E.] definitely would like [D.G.] to be treated appropriately....
[N.L.E.] does disagree with the recommendations that have been made and, in fact, there is a third doctor who also has a different opinion.
Toward that end, [N.L.E.] is trying to come to a reasonable conclusion as to the best treatment for him and has made, arrangements to see yet another doctor tomorrow afternoon or tomorrow morning....
... [I]f the Court is looking for an answer today, we’d just like to ask that the Court allow her to obtain the opinion of another medical doctor....

Thereafter, the trial court asked N.L.E. if she wanted appointed counsel. N.L.E. stated, “That’s fíne.” But, when asked if she could afford to hire her own attorney, N.L.E. stated that she could and would prefer to find her own attorney. The trial court then disconnected Ms. Clark’s telephone attendance. Without objection from N.L.E., the trial court proceeded with the hearing.

DCF attempted to present telephone testimony of three physicians who examined D.G. One was unavailable. A second physician could not testify because no notary was present with him to administer an oath. The third physician, who earlier recommended radiation treatment, qualified, without objection, as a pediatric oncology expert. He recommended chemotherapy and radiation therapy as the only treatments available to save D.G.’s life.

Next, a physician with whom N.L.E. had spoken testified by telephone. He was a general practitioner who had not examined D.G. N.L.E. merely had asked him if there were blood tests that could be done on D.G. He told N.L.E. that such tests were available and observed that results could be obtained in less than a week. He had no opinion about the need for radiation or chemotherapy.

N.L.E. told the trial court that D.G.’s surgeon believed the cancer was localized and that postoperative test results were favorable. N.L.E. wanted to avoid subjecting her son to chemotherapy and radiation if less aggressive therapies were appropriate. N.L.E. did not identify other physicians who might examine D.G., nor did she describe other effective therapies available to D.G.

The trial court found the oncologist’s testimony compelling and ordered radiation and chemotherapy treatment for D.G. The trial court directed N.L.E. to contact a specified physician within twenty-four hours to make the necessary arrangements.

The trial court then provided N.L.E. with a copy of the dependency petition and advised her of the right to an attorney. Despite her prior representations, N.L.E. said that she needed an appointed attorney. The trial court telephoned attorney Clark and stated, “N.L.E. has changed her mind in the dependency matter.” The trial court advised Ms. Clark of its ruling on D.G.’s treatment. Ms. Clark voiced no objection. N.L.E. advised the trial court that she wished to speak with her attorney before making a statement about the dependency petition. The trial court continued the arraignment.

In her certiorari petition, N.L.E. argues that the trial court lacked jurisdiction over D.G. and that DCF filed the dependency petition as a pretext to invoke jurisdiction. She argues further that no medical emergency existed and that she was deprived of due process to present her evidence. Finally, she contends that the evidence presented did not justify DCF’s intervention and that DCF violated D.G.’s privacy rights by allowing the oncologist to divulge confidential medical information without a subpoena and notice to N.L.E. or D.G.

We understand N.L.E.’s concerns about her son’s health and do not doubt her sincerity in wanting to avoid the potentially drastic side effects of radiation and chemotherapy. Sympathetic as we may be, the scope of our certiorari review is limited. We may grant N.L.E.’s petition only if the trial court (1) departed from the essential requirements of the law, (2)resulting in "material injury, (8) that cannot be corrected on postjudgment appeal. See DeLoach v. Aird, 32 Fla. L. Weekly D2140, — So.2d -, 2007 WL 2552071 (Fla. 2d DCA Sept. 7, 2007) (citing Parkway Bank v. Ft Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). “In the absence of a showing that the lower court exceeded its jurisdiction or proceeded in derogation of the essential requirements of law certiorari will not lie to the [district [c]ourt of [alp-peal.” Holden v. City of Fort Lauderdale, 286 So.2d 218, 219 (Fla. 4th DCA 1973) (citing State v. Smith, 240 So.2d 807, 809 (Fla.1970)). Applying this standard, we can offer N.L.E. no relief.

N.L.E. did not present to the trial court the issues she advances here. “ ‘Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.’” State v. Hunton, 699 So.2d 320, 321 (Fla. 2d DCA 1997) (quoting Novels v. State, 685 So.2d 856, 857 (Fla. 2d DCA 1995)). We will not speculate as to whether appointed counsel could have preserved N.L.E.’s arguments for our review. N.L.E. had the opportunity but declined to have attorney Clark represent her in connection with the emergency motion. We see no fundamental error regarding N.L.E.’s jurisdictional and privacy arguments. Thus we deny the petition on these issues without further discussion.

As for the “emergency” nature of the motion, the presentation of evidence and the need for treatment, N.L.E. essentially mounts a broad-brush due process attack on the form of the hearing claiming fundamental error. We cannot accept her position. The unrebutted testimony established that D.G. needed prompt chemotherapy and radiation treatment. Despite the apparent haste with which the trial court proceeded, we see no departure from the essential .requirements of law, much less fundamental error.

According to DCF, D.G. suffered from medical neglect. Section 39.01(31), Florida Statutes (2006), provides:

“Harm” to a child’s health or welfare can occur when any person:
(f) Neglects the child. Within the context of the definition of “harm,” the term “neglects the child” means that the parent or other person responsible for the child’s welfare fails to supply the child with adequate ... health care, although financially able to do so or although offered.financial or other means to do so.

See also § 39.01(43). “ ‘Necessary medical treatment’ means care which is necessary within a reasonable degree of medical certainty to prevent the deterioration of a child’s condition or to alleviate immediate pain of a child.” § 39.01(42).

Ordinarily, decisions regarding the care and upbringing of minor children are left to the parents. See M.N. v. S. Baptist Hosp. of Fla., Inc., 648 So.2d 769, 770 (Fla. 1st DCA 1994) (citing Padgett v. Dep’t of Health and Rehab. Servs., 577 So.2d 565 (Fla.1991)).

But the parents’ rights are not absolute, as the state has parens patriae authority to ensure that children receive reasonable medical treatment which is necessary for the preservation of life. And as between parent and child, the ultimate welfare of the child is the controlling- factor. Indeed, the policy of advancing the best interests of the child is well rooted in this state and guides the courts in many diverse contexts.

Id. (citations omitted).

As explained in M.N., the court must balance competing interests. Id. at 771. It must consider the parent’s interest in making fundamental decisions about a child’s care, the State’s interest in preserving human life, and the child’s own welfare and best interests in light of the severity of the child’s illness, the likelihood of effectiveness of the proposed treatment, the child’s chances of survival with and without such treatment, and the invasiveness and nature of the treatments with regard to its effect on the child. See id. The trial court balanced these interests properly when faced with D.G.’s situation. See J.V. v. State, 516 So.2d 1133, 1133-34 (Fla. 1st DCA 1987) (finding no abuse of discretion in court’s authorization of blood transfusions as medically necessary, but finding that parents’ actions did not support a finding of dependency by abandonment, neglect, or abuse); see also In re J.W., 890 So.2d 337, 340 (Fla. 2d DCA 2004) (holding that clear and convincing evidence is standard of proof required in context of ordering emergency mental health treatment).

Unquestionably, N.L.E. received short notice of the hearing. Typically, a summons and notice of hearing provides at least seventy-two hours’ notice. See § 39.502(4). Twenty-four hours’ notice of an advisory hearing in a termination of parental rights case has been held insufficient notice as a matter of law. See J.B. v. Dep’t of Children & Family Servs., 768 So.2d 1060, 1066-67, 1066 n. 4 (Fla.2000). However, for shelter hearings and hearings resulting from medical emergencies, notice must be “that most likely to result in actual notice to the parents.” § 39.502(1). N.L.E. had notice of the hearing. And, the medical exigencies demanded prompt attention by the trial court.

Although N.L.E. argues that there was no real emergency, the oncology expert testified that immediate radiation and chemotherapy was necessary. We also observe that N.L.E. requested no continuance. Even if attorney Clark’s comments can be read as a request for more time, the trial court certainly did not depart from the essential requirements of law. N.L.E. chose to proceed on her own and did not ask for additional time. She did not identify other potential witnesses who she would secure, nor did she provide the substance of any further testimony. Alas, N.L.E. was grasping for alternative treatments. But, the medical evidence before the trial court indicated that time was not on D.G.’s side. Additionally, our record shows that N.L.E. presented some medical testimony at the hearing. The physician who testified for her, however, had not seen D.G. and had no opinion on the need for chemotherapy and radiation. Even N.L.E.’s comments that D.G.’s surgeon found the cancer to be localized offered no hint that chemotherapy and radiation were not medically indicated. Thus, although the hearing proceeded quickly upon short notice, N.L.E. suffered no undue prejudice.

The trial court’s order constitutes neither fundamental error nor a departure from the essential requirements of law. Accordingly, we deny N.L.E.’s petition.

Petition for writ of certiorari denied.

DAVIS and VILLANTI, JJ., Concur.

      .We note that N.L.E. may not have been entitled, constitutionally, to appointed counsel in connection with the emergency motion. See S.B. v. Dep’t of Children and Families, 851 So.2d 689, 693-94 (Fla.2003); C.L.R. v. Dep’t of Children and Families, 913 So.2d 764, 766 (Fla. 5th DCA 2005).

      . We glean from the record that N.L.E. believed that the removal of D.G.’s tumor left him cancer-free.

      . The record reflects that DCF served the petition on someone residing at N.L.E.’s home. We cannot determine if she saw it prior to the hearing.

      . See Health Ins. Portability and Accountability Act (HIPAA), Pub.L. No.104-191, 110 Stat. 1936 (1996) (codified at 42 U.S.C. § 1320d-d8); §§ 395.3025, 456.057, Fla. Stat. (2006) (providing for confidentiality of patient records but allowing for legal review upon subpoena and notice). Compare 45 C.F.R. 164.512(b)(l)(ii) (2002); § 39.201 (l)(b)l, Fla. Stat. (2006) (providing for mandatory disclosure of certain protected health- information).


text:
    Patrick LANGELLO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2419.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    Dwight R. Dudley, St. Petersburg, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Patrick Langello entered a nolo conten-dere plea to charges of carrying a concealed firearm and possession of marijuana. He reserved the right to appeal the denial of his motion to suppress the evidence found in his car as a result of a traffic stop for a broken tag light. We reverse on the ground that the stop was unconstitutional because one of the two tag lights illuminating his license plate was operating and, therefore, there was no traffic violation to justify the stop.

“An automobile stop is ... subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Police stopped Langello’s car because only one of two lights illuminating his tag was operational. The officer who stopped Lan-gello believed this violated section 316.221(2), Florida Statutes (2004). Section 316.221(2) requires vehicles to be equipped with “either a taillamp or a separate lamp” that is “placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear.” The officer who stopped Langello acknowledged that although one tag light was not working, the car had a second light illuminating the tag. When asked whether the tag was rendered illegible because of the single malfunctioning light, she testified that she could not recall.

Langello argues that the statute requires only a single operational light and that the officer erroneously focused on whether both tag lights were functioning instead of on whether the tag was “clearly legible.” He contends that as long as he had a single operational light and the tag was “clearly legible,” he was not violating the statute and the officer did not have probable cause to stop him. We agree. In Gordon v. State, 901 So.2d 399 (Fla. 2d DCA 2005), police officers conducted a traffic stop of Gordon’s car on the mistaken belief that driving with an object hanging from the rearview mirror constituted a traffic infraction. Id. at 405. The court held that the officers’ misapprehension of the law did not establish probable cause to stop the vehicle. Id. Here, as in Gordon, the officer’s belief that there was an equipment violation because only one tag light was working was a mistake of law which did not establish probable cause to stop Langello’s car.

The State contends that even if Langello did not violate section 316.221(2), the stop was proper under section 316.610(1), Florida Statutes (2004). Section 316.610(1) gives a police officer authority to require the driver of a car to stop and submit to an inspection if the officer has reasonable cause to believe that the car is unsafe or not equipped as required by law. See State v. Schuck, 913 So.2d 69 (Fla. 4th DCA 2005) (holding that a police officer lawfully stopped the defendant’s car based on the reasonable belief that the taillight was broken, which was an equipment violation). However, as explained above, the State did not establish that Langello’s car was not equipped as required by law, and it made no attempt to establish that the car was unsafe. Accordingly, the stop was not authorized under section 316.610(1). See Hilton v. State, 961 So.2d 284, 290 (Fla.2007) (holding that a stop for a cracked windshield is permissible only where an officer reasonably believes that the crack renders the vehicle in an unsafe condition).

Because the police did not have probable cause to believe that Langello had committed a traffic violation, the stop of his car was unlawful, and the trial court should have granted Langello’s motion to suppress. Accordingly, we reverse and remand with directions to discharge Langel-lo.

Reversed and remanded.

STRINGER and CANADY, JJ., Concur.


author: KHOUZAM, NELLY N., Associate Judge.

text:
    Adrian JOHNSON, Appellant, v. PRECISION MOTORCARS, INC., a Florida corporation, and Mercedes-Benz USA, LLC, a Delaware corporation authorized to do business in Florida, Appellees.
    No. 2D06-3664.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    Jeffrey A. Blau, Tampa, for Appellant.
    Robert L. Blank and Michael L. Forte of Rumberger, Kirk & Caldwell, P.A., Tampa, for Appellees.
   KHOUZAM, NELLY N., Associate Judge.

Adrian Johnson challenges the trial court’s award of attorneys’ fees and costs to Precision Motorcars, Inc., and Mercedes-Benz USA, LLC. Because the trial court erred as a matter of law in relying on the 2006 Guidelines for Taxation of Costs (“Guidelines”), we reverse and remand for further proceedings.

Johnson sued Precision, Mercedes, and others in 2003 for injuries he received when someone shot him during an attempted carjacking of his Mercedes-Benz automobile. The trial court granted summary final judgment in favor of Precision and Mercedes on June 28, 2005. Johnson appealed, but the appeal was dismissed in 2006. See Johnson v. Precision Motorcars, Inc., 928 So.2d 347 (Fla. 2d DCA 2006).

The trial court entered its final cost judgment on July 7, 2006. In calculating the recoverable costs, the trial court relied on the 2006 Guidelines. Johnson alleges that he was charged certain costs for depositions which would not have been allowable under the 1981 Guidelines.

The only issue on appeal is whether the trial court was authorized to rely upon the 2006 Guidelines or whether it was required as a matter of law to use the 1981 Guidelines. We begin by noting that the supreme court established the effective date of the revised 2006 Guidelines as January 1, 2006. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 615 (Fla.2005). In this case, the summary final judgment was entered approximately six months before the effective date of the new guidelines. The ap-pellees’ entitlement to costs arose with the entry of this judgment. Thus, all costs, whether taxable or otherwise, had been incurred well prior to the effective date of the new guidelines. Indeed, all costs had been incurred prior to the supreme court’s opinion that approved these new guidelines on November 17, 2005.

Thus, the dispositive question is whether the trial court could apply the 2006 Guidelines retroactively to a judgment entered prior to the effective date of the new guidelines. In Mendez-Perez v. Perez-Perez, 656 So.2d 458, 460 (Fla.1995), the supreme court held that Florida Rules of Procedure “are prospective unless specifically provided otherwise.” Because nothing in the supreme court’s decision adopting the new guidelines indicates that the supreme court intended that the new guidelines be imposed retroactively, we conclude that the trial court erred as a matter of law in doing so in this case.

Accordingly, we reverse the trial court’s final cost judgment and remand for the trial court to apply the 1981 Guidelines in awarding costs.

Reversed and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    RALPH E. WOOD TRUST and Kristin Moss as Successor Trustee, Petitioners, v. Rodrigo J. ARISTIZABAL and Lilyana Quintero, Respondents.
    No. 2D07-3562.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 2007.
    Ira B. Price, Miami, for Petitioners.
    Neil Rubin of Neil Rubin PLLC, North Bay Village, for Respondents.
   PER CURIAM.

We treat the Ralph E. Wood Trust’s petition for writ of certiorari as a nonfinal appeal and affirm. See Fla. R.App. P. 9.130(a)(C)(3)(ii). We deny the petition for writ of prohibition.

NORTHCUTT, C.J., and FULMER and WHATLEY, JJ., Concur.


author: WARNER, J.

text:
    SPS DEVELOPMENT COMPANY, LLC, Appellant, v. DS ENTERPRISES OF the PALM BEACHES, INC., SBP of Jupiter, Ltd., Silvester Building Corp. and Dennis Silvester, Appellees.
    No. 4D06-3604.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.

      Scott W. Zappolo of Watterson & Zap-polo, P.A., Palm Beach Gardens, for appellant.
    Kenneth N. Johnson, Stanley D. Klett, Jr. and John T. Mulhall, III of Rutherford Mulhall, P.A., Palm Beach Gardens, for appellee.
   On Motion for Clarification

WARNER, J.

We grant clarification to correct a clerical error in the original opinion, withdraw our prior opinion and substitute the following in its place.

SPS Development Company, LLC, appeals the trial court’s final order dismissing its complaint with prejudice. Because the dismissal was a sanction for failure to amend within the allotted time, and the order did not make express findings of sanctionable conduct, we reverse.

This appeal involves three circuit court cases. In the first case, a 2003 filing, appellee Silvester Development filed a complaint against SPS and another party alleging a breach of contract for construction of a house. SPS answered and eventually filed a counterclaim against Silvester alleging various causes of action involving other agreements with respect to the purchase and construction of the same house. The specific underlying facts are not essential to resolving the legal issues raised in this appeal.

A second case was filed in 2004 by SPS against DS Enterprises and others, making essentially the same allegations as those made in the 2003 counterclaim. Sil-vester moved to dismiss the counterclaim in the 2003 case, and DS moved to dismiss the complaint in the 2004 case. Those motions were granted with leave to amend both the counterclaim in the 2003 action and the complaint in the 2004 action. The court ordered that the amended pleadings be filed within twenty days, although the parties agreed to an extension of time until May 27, 2005, to file the amended pleadings.

Soon after the order granting leave to amend was entered, counsel for SPS withdrew in both cases. The trial court granted the motions to withdraw in August 2005. A new attorney entered his appearance for SPS in the 2003 case in September. While a notice of appearance was not filed in the 2004 case, various pleadings and orders in the 2004 case were served on that same attorney.

SPS filed a new complaint in April 2006 against DS Enterprises, seeking to dissolve DS’s interest in an escrow agreement which also involved the same property and agreements as the prior two eases. DS moved to dismiss this action, and the court denied the motion, ordering DS to answer the complaint. It also consolidated the 2006 case with the 2004 case for all matters. The court ordered the parties to attend mediation for both cases.

On August 4, 2006, DS moved to compel mediation. On that same date, Silvester served a motion to dismiss the counterclaim in the 2003 case and the complaint in the 2004 case for failure to file an amended counterclaim and complaint, respectively, as ordered by the trial court in 2005. At an 8:45 a.m. hearing six days later, the trial court granted both motions and dismissed the complaint and counterclaim with prejudice without stating any reasons for the dismissal. The order of dismissal was docketed in each of the three cases. Shortly thereafter, Silvester filed a motion for partial summary judgment with respect to its still pending complaint in the 2003 action. SPS filed notices of appeal in each of the three cases.

Because the complaint by Silves-ter is still pending in the 2003 case, we conclude that the order granting the motion to dismiss for failure to file an amended counterclaim in that case is not appeal-able. An order dismissing a counterclaim is not a non-final, appealable order under rule 9.130. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99-100 (Fla.1974). The issues in the counterclaim are intertwined with the remaining cause of action. Nor is the order an appealable partial final judgment which totally disposes of a case against a party. See Fla. R.App. P. 9.110(k). We therefore dismiss the appeal of the order dismissing the counterclaim in the 2003 case.

We also question whether the 2004 order is appealable in that the 2004 and the 2006 cases were consolidated for all matters. Where cases are consolidated for discovery and trial, they do not lose their individual identities as distinct, separately filed actions. See OneBeacon Ins. Co. v. Delta Fire Sprinklers, Inc., 898 So.2d 113 (Fla. 5th DCA 2005). However, we could find no cases involving appeals where two actions are consolidated “for all matters” or even what that means to the two cases. Nevertheless, as this issue has not been briefed or considered by the parties, we will assume that we have jurisdiction as to the 2004 order, because it had the effect of completely disposing of the 2004 case.

As to the 2004 order dismissing the complaint with prejudice, we reverse on the authority of Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). Although a trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment, id. at 817, “[b]e-cause dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Id. at 818. The Kozel court established six factors which must be considered by a trial court before dismissing a complaint with prejudice for noncompliance with a court order:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

Id. Where a trial court exercises the drastic sanction of dismissal, it must make express written findings of fact supporting the conclusion that the failure to obey the court’s order amounts- to a willful or deliberate disregard of the court’s order. See Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004); Zaccaria v. Russell, 700 So.2d 187, 188 (Fla. 4th DCA 1997). Here, the trial court failed to make any such findings in its order of dismissal.

DS contends that Kozel does not apply because the dereliction in this case is that of the litigant rather than the attorney, as SPS’s attorney did not file a notice of appearance in the 2004 case. Thus, it argues that any failure to file the amended complaint was due to SPS’s failure to secure an attorney.

We do not agree that the lack of a notice of appearance by a new attorney means that Kozel does not apply. DS certainly thought that SPS was represented in the 2004 case after the 2005 withdrawal of its counsel because in the 2004 case, it filed several motions and served them on SPS’s new attorney. The court entered orders in that case which were served on SPS’s new attorney. Further, the court ordered both parties to mediation in the 2004 case (consolidated with the 2006 case), and DS filed a motion to compel mediation in the consolidated 2006 case. There is nothing in the record which supports the conclusion that the cause for the failure to obey the order to amend its complaint was due to SPS’s conduct.

Because the trial court failed to deter-miné with express findings that SPS willfully disregarded the trial court’s orders, we reverse for further proceedings. As to the 2003 case, the appeal is dismissed for lack of jurisdiction, without prejudice to SPS from raising this issue in any final appeal in that case.

GUNTHER and GROSS, JJ„ concur.

      . Although SPS claims that at the hearing on the motions to dismiss the court consolidated the 2003 and 2004 cases, there is no order of consolidation in the record.


text:
    John ROE, Appellant, v. GRAND JURY, Appellee.
    No. 4D07-2371.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Appellant timely appeals the partial denial of a motion brought under section 905.28(1), Florida Statutes (2006), to repress or expunge a portion of a grand jury presentment which referred to appellant. We affirm the order of the circuit court which allowed the release of certain language but ordered the redaction of one sentence.

The presentment states that the grand jury was convened “to investigate corruption, ethics and whether the City of West Palm Beach conducts business under a ‘pay to play’ practice.” In an ethics section of the report, the grand jury made findings relating to rebroadcasts of commission meetings. Appellant’s section 905.28(1) motion was directed at this portion of the report. The circuit court redacted one sentence from the report because it quoted testimony before the grand jury.

Under section 905.28(1), where a grand jury presentment relating to an individual is not accompanied by a true bill or indictment, the report remains confidential until the individual has been furnished a copy and given 15 days to file a motion in the circuit court to “repress or expunge the report or that portion which is improper and unlawful.” “The policy behind the statute is to give a person not charged with a crime the chance to prevent the publication of ‘improper and unlawful’ material.” Barber v. Interim Report of the Grand Jury Spring Term 1995, 689 So.2d 1182, 1184 (Fla. 4th DCA 1997).

Something is “unlawful” within the meaning of section 905.28(1) if it is “outside the lawful ambit of the grand jury’s authority.” Id. “In addition to criminal offenses, a grand jury may investigate the actions of public officials, including ‘reporting or presenting findings and recommendations as to practices, procedures, incompetency, inefficiency, mistakes and misconduct involving public offices and monies.’ ” Id. (quoting In re Presentment of Grand Jury (Freeport School Project), 544 So.2d 1104, 1106 (Fla. 1st DCA 1989)). As the challenged language in the report was a part of the grand jury’s investigation into the conduct of public officials, the comments were not unlawful.

A matter is “improper” under section 905.28(1) if it is (1) not “germane to the scope of the proceedings for which the grand jury was convened and given investigative authority” and (2) not “supported by the facts contained in the report itself.” Barber, 689 So.2d at 1184-85. The challenged statements were not improper, since they related to unethical practices in the operation of the city government. Whether a public official has manipulated, or attempted to manipulate, a recording of a public meeting is a type of conduct a grand jury may properly investigate. Also, there is a factual basis for the challenged statements in the report. We reject appellant’s attempt to manufacture an issue by setting up the straw man of the section 119.01(11) definition of public records. As appellee argues, the presentment used the term “public record” in the general sense, not as a statutory term of art. The propriety of the grand jury’s finding does not turn on the application of the public records law.

We affirm the order of the circuit court. A motion for rehearing, if any, must be filed within five days. The report shall be released pursuant to the circuit court’s order upon issuance of the mandate.

WARNER and FARMER, JJ., concur.


text:
    Keith David GARITY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4151.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2007.

      James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

MONACO, J.

We grant appellant’s motion for rehearing, withdraw our previous opinion, and substitute the following.

The appellant, Keith David Garity, appeals the judgment of the trial court revoking his probationary placement and sentencing him to prison. Because of the failure of the State to prove a willful and substantial violation of probation, we reverse.

In accordance with a plea agreement, Mr. Garity entered a plea of nolo conten-dere to the offense of driving while his driver’s license was canceled, suspended or revoked as a habitual offender. The trial court adjudicated him guilty and sentenced him to three years of imprisonment, which the court then suspended on the condition that he successfully complete three years of probation. A court order found in the record indicates that as special conditions of probation, Mr. Garity was to obtain a GED, complete 25 hours of community service, and pay certain fines and costs. Pursuant to the court order, the supervision of Mr. Garity’s probation was transferred to Ohio. While in Ohio Mr. Garity encountered a few bumps in the road, but no violation documentation was ever filed by the Ohio personnel who were supervising him.

Three months before the termination date of his probation, however, the Florida Department of Corrections filed an affidavit of probation violation alleging that Mr. Garity had failed to complete the three special conditions. Problems blossomed at the violation of probation hearing.

First, it appears that there was no available transcript of the sentencing hearing at which the special conditions were purportedly imposed. Second, the documentation in the court file that identified the special conditions was not signed by Mr. Garity. Third, the probation officer who originally took charge of Mr. Garity and who would have been the person within the Department of Corrections to explain the conditions of probation was no longer employed by the Department and was not at the hearing. Fourth, the person who filed the affidavit of probation violation testified that she was not the official custodian of his records, had never personally instructed Mr. Garity of the conditions of probation, and had never gone to Ohio or used a telephone to speak to Mr. Garity while he was in Ohio. Additionally, she was not aware of how he was instructed once he got to Ohio because she had no correspondence with or other documentation from the State of Ohio regarding whether Mr. Garity had completed the special conditions of probation. She said only that she had a “communication” from Ohio indicating that Mr. Garity did not complete his probationary requirements, although she had no direct knowledge with respect to those issues. Finally, there is nothing in the record before us that indicates that any payment schedule for fines and costs was set out, nor is there any evidence that Mr. Garity had the financial ability to pay them.

Mr. Garity testified after being called as a witness by the State that he had no contact with his Florida probation officer after he was sentenced, and that he had paid all of the amounts that he was told to pay by his probation supervisors in Ohio. He said he was not informed of the requirements to perform community service or to obtain a GED until immediately before the affidavit of probation violation was filed. He said he then began doing community service hours, but had not yet turned in the paperwork. Finally he said that when he learned of the requirement for him to obtain a GED, he tried after he was arrested for violating probation to get into a GED class, but that on each occasion he was unable to do so because the classes were full.

The trial court found by the' greater weight of the evidence that Mr. Garity had violated probation, and remanded him to the Department of Corrections to serve the suspended three-year term of imprisonment. We review the trial court’s determination using an abuse of discretion standard. See Johnson v. State, 880 So .2d 749, 750 (Fla. 5th DCA 2004). As there was a complete absence of proof that Mr. Garity willfully and substantially violated his probation, we conclude that the trial court abused its discretion and reverse. See Williams v. State, 896 So.2d 805, 806 (Fla. 4th DCA 2005) (violation of probation must be both willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence); see also, Woodson v. State, 864 So.2d 512, 514 (Fla. 5th DCA), review dismissed, 889 So.2d 823 (Fla.2004).

As a result of the erroneous revocation of Mr. Garity’s probationary placement, Mr. Garity was sentenced to a term in prison. From the record before us it appears that Mr. Garity has completed his sentence. Accordingly, on remand if Mr. Garity has completed his sentence, then the trial court shall discharge him. If he has not completed his sentence, then the trial court shall reinstate him to supervision and credit him with all time served in jail and in prison because of these proceedings. See Davis v. State, 867 So.2d 608, 612 (Fla. 2d DCA 2004).

REVERSED and REMANDED with instructions.

ORFINGER and TORPY, JJ., concur.


author: SALCINES, Judge. FULMER, Judge,

text:
    Patrick B. OSTMAN, Appellant, v. Loretta J. OSTMAN, Appellee.
    No. 2D04-5449.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 2007.

      Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Stacey L. Turmel and Shirin Rustomji of Stacey L. Turmel, P.A., Tampa, for Appel-lee.
   SALCINES, Judge.

Patrick B. Ostman, the Former Husband, appeals from a postdissolution modification order that approved and confirmed a general master’s recommendations with respect to the modification of alimony previously awarded to Loretta J. Ostman, the Former Wife. The general master’s conclusion that there was a material, substantial, involuntary, and permanent change in the Former Wife’s circumstances was not supported by competent, substantial evidence and thus did not provide a basis for an upward modification of the original permanent periodic alimony award. Hence, the trial court abused its discretion in approving the general master’s recommendations concerning the modification of the permanent periodic alimony award. Furthermore, the decision concerning the modification of the permanent periodic alimony award cannot be affirmed on an alternative basis. Accordingly, we reverse the modification order to the extent that it retroactively and prospectively increased permanent periodic alimony and established an alimony arrearage.

Reversed and remanded.

NORTHCUTT, C.J., Concurs.

FULMER J., Concurs specially.

FULMER, Judge,

Specially concurring.

The General Master’s report and recommendation contains findings of fact that are recited as a factual basis for the conclusion that “[t]here has been a material, substantial, involuntary and permanent change in Former Wife’s circumstances as a result of her medical conditions, her inability to complete a college degree and her inability to work on a regular basis.” In his brief, the Former Husband reviews the testimony and evidence presented and explains why the factual findings are not supported by competent, substantial evidence. Having reviewed the record, I agree with the Former Husband’s arguments. Although the Former Wife established that she had various medical conditions, several of which predated the dissolution, the record is devoid of evidence that these conditions made it impossible for her to complete her education or prevented her from working on a regular basis. Therefore, I agree that the trial court’s order approving the report and recommendation of the General Master should be reversed.

      . In her petition for modification, the Former Wife also sought a modification of child support. The initial order entered by the trial court approved and confirmed the recommendations of the general master in all respects except for child support. Matters pertaining to child support were ultimately resolved by a joint stipulation of the parties that was ratified by court order. Finally, the Former Wife has not filed a cross-appeal from the termination of rehabilitative alimony. The only issues before this court relate to the modification of the permanent periodic alimony award.


author: TAYLOR, J.

text:
    Carolyn J. WRIGHT, Michael Bornstein, Anita Mitchell, Gladys D. Van Otteren and Patricia M. High, Appellants, v. Lois FRANKEL, as mayor of City of West Palm Beach, a municipality of the State of Florida; Isaac Robinson, Jr.; Geraldine Muoio; James Exline; Kimberly Mitchell; and William Moss, as city commissioners of the City of West Palm Beach, a municipality of the State of Florida, and City of West Palm Beach, a municipality of the State of Florida, Appellees.
    Nos. 4D06-3386, 4D06-3697.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.
    Rehearing Denied Dec. 31, 2007.
    Thomas R. Julin and Patricia Acosta of Hunton & Williams LLP, Miami, for appellants.
    Jane Kreusler-Walsh and Rebecca Mer-cier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., Brian B. Joslyn and Richard A. Jarolem of Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, and Claudia M. McKenna, City Attorney, West Palm Beach, for appellees.
   On Motion fob Rehearing En Banc

TAYLOR, J.

We deny the motion for rehearing en banc but certify the following question to the Florida Supreme Court as a question of great public importance:

WHERE A CITY CHARTER PROVIDES FOR A CITIZEN-INITIATED REFERENDUM PROCESS TO ENACT AN ORDINANCE, AND A CITY DECLINES TO PLACE A CITIZEN-INITIATED ORDINANCE ON THE BALLOT IN ACCORDANCE WITH THE CHARTER PROVISIONS, IS LACHES A DEFENSE TO A MANDAMUS PETITION BROUGHT BY THE CITIZENS TO REQUIRE THE CITY COMMISSION TO PLACE THE PROPOSED ORDINANCE ON THE BALLOT?

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

GUNTHER, KLEIN and HAZOURI, JJ., recused.