author: HAWKES, J. KAHN, C.J.,

text:
    CITY OF OCOEE and PGCS, Appellants, v. Dennis TRIMBLE, Appellee.
    No. 1D04-4518.
    District Court of Appeal of Florida, First District.
    May 22, 2006.

      George A. Helm, III, Esquire, Lake Mary, for Appellants.
    Kelli Biferie, Esquire, Winter Park, and Bill McCabe, Esquire, Longwood, for Ap-pellee.
   HAWKES, J.

We again confront the waiver provisions of section 440.20(4), Florida Statutes (2003). Here the employer and carrier (E/C) paid for a cardiac evaluation when Claimant complained of chest pressure and discomfort. After receiving the cardiologists’s report, the E/C wrote Claimant and advised him that “no further medical treatment will be authorized for this date of injury.” Over one year later, Claimant filed a Petition for Benefits (PFB) seeking benefits for hypertension. The Judge of Compensation Claims (JCC) concluded Claimant’s hypertension was, by default, compensable, because the E/C failed to deny compensability within 120 days of providing the cardiac treatment. The E/C argues the JCC erred in this conclusion. We agree and reverse.

Facts and Procedural History

On August 8, 2002, Claimant was employed as a firefighter/engineer with the City of Ocoee. On that date, Claimant was on his way to a fire department related class, driving the fire truck, when he felt a slight pressure or pain in his chest. He obtained an evaluation by an advanced life support unit at the class location. The results of that evaluation failed to reveal any problem besides a low pulse rate. At the employer’s request, Claimant subsequently presented to an emergency room, and was advised to stay over night in order to receive a stress test the next day. Claimant indicated an ability to obtain a stress test through his personal physician and, on that condition, avoided the overnight stay. The E/C paid for this medical treatment.

On October 10, 2002, within 120 days of the initial provision of treatment, the adjuster mailed Claimant a letter which stated:

This letter will serve to notify you that your treating cardiologist physician, Dr. Einhorn, had released you as of 08/19/02 from a cardiac standpoint. He stated that you are an acceptable risk from a cardiac standpoint to return to work without restrictions. Therefore, no further medical treatment will be authorized for this date of injury.

Over one year later, on October 30, 2003, Claimant filed a PFB seeking benefits for hypertension. The E/C filed a formal notice of denial in response to this PFB on December 5, 2003.

Following a final hearing, the JCC found the October 10, 2002 letter failed to deny the claim, because Claimant did not understand the letter to be a denial of his claim, and the letter did not clearly and articulately convey that all aspects of the claim were denied. The JCC found the only denial to the claim was when the E/C filed their formal response to the PFB on December 5, 2003. Since December 5, 2003 was more than 120 days after the initial provision of the cardiac benefits, the JCC concluded the E/C waived the right to deny compensability pursuant to section 440.20(4), Florida Statutes. Since the E/C waived the right to deny compensability, the JCC erroneously concluded all benefits sought for hypertension must be provided.

Waiver of the Right to Deny Compensa-bility Does Not Establish Entitlement to Any Benefits a Claimant May Seek

A distinction exists between the concept of compensability and a worker’s entitlement to either compensation or benefits. See North River Ins. Co. v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996) (en banc); Checkers Rest. & Specialty Risk Servs., Inc. v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006) (en banc). An E/C who pays compensation or intentionally provides benefits, but fails to deny com-pensability within 120 days waives its right to. contest an injury “arose out of, and occurred within the course and scope of, the claimant’s employment.” North River, 683 So.2d at 1092; see also § 440.20(4), Fla. Stat. Thus, an E/C who does not deny compensability has not waived anything beyond the ability to contest that an injury “arose out of, and in the course of employment.” See Checkers, at 349; see also § 440.02(19). For instance, the E/C has not waived the right to contest that the workplace injury is the major contributing cause of the condition for which treatment is sought, see Checkers, at 349-50, that the E/C has a defense to the claim, such as the statute of limitations, see North River, 683 So.2d at 1092, or that a claimant made a false, misleading, or incomplete statement, forfeiting any right to compensation under chapter 440. See Singletary v. Yoder’s & Ameritrust Ins. Corp., 871 So.2d 289 (Fla. 1st DCA 2004).

Here, the JCC’s conclusion as to the consequences of waiver would have far reaching negative implications. A couple of examples illustrate.

First, there would be an adverse impact on the Legislative intent that the workers’ compensation system be efficient and self-executing, and not an economic or administrative burden. See § 440.015, Fla. Stat. Under the JCC’s logic, an E/C providing treatment to an injured employee for a known and accepted condition, would incur the obligation to provide treatment for any other condition the claimant may suffer then, or in the future. The obligation is incurred without any consideration of the relationship between the contested condition and the accepted condition, or between the workplace injury and the contested condition. This sanctions an E/C who accepts the responsibility for uncontested medical conditions that result from workplace injuries. Sanctions in this context would provide negative incentives for a self-executing system.

Second, a blurring of the distinction between the concepts of compensability and entitlement to benefits renders other important statutory provisions meaningless. For example, section 440.09(a), Florida Statutes, concerning subsequent injuries or conditions, and section 440.09(b), Florida Statutes, concerning preexisting conditions, both require the workplace injury remain the major contributing cause of the need for treatment before the E/C is obligated to provide the treatment. Under the logic here, an E/C providing treatment for the initial condition would become obligated to provide treatment for either a subsequent injury or preexisting condition without the requisite showing that the workplace injury is the major contributing cause of the need for treatment. A similar situation could result in occupational disease cases without disability, and mental or nervous disorders without physical injury.

Consequently, here, provision of a cardiac evaluation and the passage of 120 days cannot waive the E/C’s ability to defend against a subsequent claim for hypertension, or any other condition, by arguing the workplace injury is not the major contributing cause of the hypertension, or the other contested condition. “[Ijssues concerning the worker’s entitlement to benefits remain subject to challenge, including the extent of the compensable injury and the causal relationship between the com-pensable injury and the condition for which the worker seeks benefits.” Checkers, at 349.

The Effectiveness of a Denial Avoiding Waiver Does Not Depend On A Claimant’s Understanding

To avoid waiver of the right to deny compensability, the E/C is only required to deny the claim within 120 days of “the initial provision of compensation benefits.” § 440.20(4), Florida Statutes. Once the statute is triggered, section 440.20(4), requires the E/C to “advise the employee of claim acceptance or denial.” Id. In keeping with the self-executing goal of chapter 440, advising the employee of claim acceptance or denial does not require elaborate, formalistic procedures. Obviously, the continued provision of compensation or benefits past the 120 day limit advises the employee of “claim acceptance” and waives the right to later deny compensability. See Travelers Ins. Co. v. Collins, 825 So.2d 451 (Fla. 1st DCA 2002).

Similarly, to “advise the employee of claim ... denial,” does not require a formalistic process, nor does the statute require “magic words” to convey the denial. Just as the actions of the E/C can advise of claim acceptance, the actions of the E/C may advise of claim denial. The determination of whether a claim has been denied can never depend on a claimant’s ability to understand that the E/C is denying the claim. Substantive rights in the workers’ compensation context cannot depend on the claimant’s ability to understand or the claimant’s intelligence. If this were so, we would not have a uniform workers’ compensation system, but a system that varied from claimant to claimant, providing benefits based on what each claimant understood, or the intelligence of each claimant.

Here, the E/C, although not statutorily required, sent Claimant a letter advising of claim denial. The letter stated Claimant was released to return to work without restrictions, and “no further medical treatment -will be authorized for this date of injury.” The logical import of this letter can be only one of two alternatives. Either: (1) Claimant was not injured; or, (2) if he was, it was not a workplace injury for which the E/C is responsible. Either alternative results in denial of the claim.

Because the JCC misconstrues the consequences of an E/C’s waiver of the right to deny compensability, and bases the effectiveness of a denial on Claimant’s ability to understand his claim was denied, the JCC’s order is REVERSED.

THOMAS, J., concurs; KAHN, C.J., concurs with Opinion.

KAHN, C.J.,

concurring.

I agree with much of Judge Hawkes’ analysis. In particular, I find the Judge of Compensation Claims’ order must be reversed because the employer/carrier initially provided treatment, but thereafter, obtained a. medical opinion that further treatment would not be work-related. Accordingly, I conclude that this case does not involve an attempt by an employer/carrier to improperly deny a claim ab initio, after having provided benefits without denial for more than 120 days. I therefore concur in result.

      . The statute is not applied in a mechanical, simplistic manner. Paying by mistake, a bill submitted by an unauthorized provider does not trigger the 120 day period and would not result in waiver. See Cole v. Fairfield Cmtys., 908 So.2d 1105 (Fla. 1st DCA 2005).


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    Lawrence T. HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4302.
    District Court of Appeal of Florida, First District.
    May 22, 2006.
    Nancy A. Daniels, Public Defender; Janice G. Scott, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, J.

Appellant raises three issues on appeal, none of which have any merit, and only one of which requires brief discussion. Appellant’s retrial for first degree murder and resulting conviction for third degree murder following his earlier conviction as charged for second degree murder which was reversed on grounds other than sufficiency of the evidence, was not barred by principles of double jeopardy. See State v. Lynch, 134 N.M. 139, 74 P.3d 73, 75-77 (2003). Affirmed.

HAWKES and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Appellant, v. D. Gregory RUCK, Appellee.
    No. 1D06-0503.
    District Court of Appeal of Florida, First District.
    May 22, 2006.

      Charlie Crist, Attorney General, and Lee Ann Gustafson, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Edwin A. Bayo of Gray Robinson, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Based on the joint motion for remand filed by the parties, the final order is hereby quashed and the cause is remanded for further proceedings.

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


text:
    T.C.F., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1685.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    Robert Wesley, Public Defender, and Carrie Lee, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for respondent.
   PER CURIAM.

T.C.F., arguing that the trial court improperly placed him in secure detention for 21 days after violating the terms of his home detention, seeks from this court a writ of habeas corpus. We grant his petition.

T.C.F. was adjudicated delinquent and committed to a moderate risk facility. While awaiting placement in an appropriate facility, he was temporarily placed in home detention. When the trial court later found that T.C.F. violated the terms of his home detention, the court then placed him in secure detention for 21 days. T.C.F.’s counsel objected, arguing that the maximum amount of time in secure detention authorized by statute was only five days. T.C.F. now seeks relief in this court. Upon violation of home detention in these circumstances, section 985.215(10)(b), Florida Statutes (2005), plainly authorizes a placement of only five days in secure detention. Thus, the trial court’s placement of 21 days in the instant case is erroneous. On facts indistinguishable from those in the instant case, our sister courts in T.W. v. Edwards-Ellis, 903 So.2d 1050 (Fla. 1st DCA 2005) and J.B. v. Rayford, 707 So.2d 434 (Fla. 3d DCA 1998) held that habeas corpus relief was warranted. We further note that in response to our order to show cause, the state candidly admits that the trial court’s placement of T.C.F. in secure detention for 21 days is contrary to Florida law.

Accordingly, we grant the petition and order that T.C.F. be released from secure detention immediately.

PETITION GRANTED.

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


author: SCHWARTZ, Senior Judge.

text:
    David AUERBACH, Petitioner, v. CITY OF MIAMI, Florida, a political subdivision of the State of Florida, and O2, LLC, a Florida Limited Liability Corporation, Respondents.
    No. 3D05-1376.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    David Auerbach, in proper person.
    Greenberg Traurig and Elliot H. Scherker and Adrienne F. Pardo and Daniel M. Samson, Miami; Jorge L. Fernandez, City Attorney, and Rafael E. Suarez-Rivas, Assistant City Attorney, for respondents.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

An aggrieved neighbor seeks second-tier certiorari review of a circuit court appellate division per curiam affirmance of the action of the City of Miami Commission granting a major use special permit and a zoning variance to a developer for the construction of a residential project. We deny the petition in part and grant it in part.

As in Hemisphere Equity Realty Co. v. Key Biscayne Property Taxpayers Ass’n, 369 So.2d 996 (Fla. 3d DCA 1979), we find no basis to interfere with the major use special permit granted by the Commission and approved by the circuit court, but conclude otherwise as to the variance. The latter holding is based upon the undisputed showing that the variance, which resulted in permission for the developer to build to the lot line contrary to otherwise applicable setback requirements, is totally unsupported by the legal “hardship” required by the governing City of Miami ordinance to justify that relief. See Herrera v. City of Miami, 600 So.2d 561 (Fla. 3d DCA 1992), review denied, 613 So.2d 2 (Fla.1992); Crossroads Lounge, Inc. v. City of Miami, 195 So.2d 232 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 459 (Fla.1967); City of Miami v. Franklin Leslie, Inc., 179 So.2d 622 (Fla. 3d DCA 1965); Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA 1959), cert. denied, 116 So.2d 773 (Fla.1959); Green v. City of Miami 107 So.2d 390 (Fla. 3d DCA 1958), cert. denied, 114 So.2d 617 (Fla.1959). Not only was that point all but directly admitted at oral argument, the fact that, as both respondents specifically acknowledge, the original plan of the project did not include the variance and that the development may now go forward without it demonstrate conclusively that an indispensable requirement of a hardship variance, that no reasonable use could be made of the property without it, does not exist. See Maturo v. City of Coral Gables, 619 So.2d 455, 456 (Fla. 3d DCA 1993)(“Florida courts have held that a legal hardship will be found to exist only in those cases where the property is virtually unusable or incapable of yielding a reasonable return when used pursuant to the applicable zoning regulations.”); Herrera, 600 So.2d at 562; Bernard v. Town Council of Palm Beach, 569 So.2d 853 (Fla. 4th DCA 1990); see also Miami-Dade County v. Brennan, 802 So.2d 1154, 1155 n. 2 (Fla. 3d DCA 2001)(Fletcher, J., concurring).

As in numerous prior cases, therefore, including many, like this one, on “second-tier” review of a circuit court decision, quashal of the variance is required. See City of Jacksonville v. Taylor, 721 So.2d 1212 (Fla. 1st DCA 1998), review denied, 732 So.2d 328 (Fla.1999); Maqueira v. Montessori Children’s Sch. of Key West, Inc., 622 So.2d 597 (Fla. 3d DCA 1993); Maturo, 619 So.2d at 455; Herrera, 600 So.2d at 561; Metro. Dade County v. Betancourt, 559 So.2d 1237 (Fla. 3d DCA 1990); Hemisphere Equity Realty Co., 369 So.2d at 996; cf. Chisholm Props. S. Beach, Inc. v. City of Miami Beach, 8 Fla. L. Weekly Supp. C689 (Fla. 11th Cir.Ct. App.Div. Aug. 9, 2001), cert. denied, 830 So.2d 842 (Fla. 3d DCA 2002)(Schwartz, C.J., specially concurring in denial of rehearing en banc). Failing to do so in this case would create both a direct conflict with these decisions, and an unjustified approval of the obvious failure of the circuit court to apply the correct law, see Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003); Morningside Civic Ass’n, Inc. v. City of Miami Comm’n, 917 So.2d 293 (Fla. 3d DCA 2005), and of the resulting “miscarriage of justice” which occurred below. See Dep’t of Highway Safety & Motor Vehicles v. Rosenthal, 908 So.2d 602, 607 (Fla. 2d DCA 2005). On the other hand, by invalidating the variance, we reaffirm this Court’s solemn promise, which it has steadfastly honored, that

[t]he law ... will not and cannot approve a zoning regulation or any governmental action adversely affecting the rights of others which is based on no more than the fact that those who support it have the power to work their will.

Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So.2d 387, 394 (Fla. 3d DCA 1980), cert. denied, 386 So.2d 635 (Fla.1980).

Certiorari granted in part, denied in part.

      . The best the resourceful attorney for the developer could do was to claim a "creative use, if you will, of the variance ordinance.” Alas, creativity of this type is even less acceptable in the law than in accounting.

      . Thus, both respondents contend that the resolution's severability clause is applicable to save the remainder of the project. We agree.

      . The respondents seem to suggest that the simple, clear and direct violation of the law, which we find here without "weighing” or "evaluating” the non-existent evidence of a hardship, may be justified by claims (a) that the variance may render the project more aesthetically pleasing; or (b) more economically rewarding; or (c) that fixing the results of improperly granting the variance may be expensive or inconvenient, cf. Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA 2001)(ordering destruction of a completed building erected in violation of zoning law), review denied, 821 So.2d 300 (Fla.2002); (d) that the City of Miami authorities thought that the variance was generally a good idea, cf. Pinecrest Lakes, Inc., 795 So.2d at 198 (county’s interpretation of own comprehensive plan entitled to no weight); or (e) that the violation was, in the broad scheme of things, too minor to warrant our attention. Cf. Kneale v. Jay Ben Inc., 527 So.2d 917, 918 n. 1 (Fla. 3d DCA 1988)(quashing circuit court per curiam affirmance of county court judgment which erred in denying plaintiff $100.14 in damages for breach of contract). Notwithstanding any or all of this, it is the unshirkable obligation of the courts, on whatever "tier” of consideration, "to say what the law is” and to effect that judgment. See Costarell v. Fla. Unemployment Appeals Comm’n, 916 So.2d 778, 782 n. 2 (Fla.2005). Contrary to the opinion of some (almost always respondents), the rules stated in such cases as Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003), Florida Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla. 2000), and City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), do not render the courts of appeal legal potted palms powerless to review and correct manifest errors of law and policy. Cf. Kopel v. Kopel, 832 So.2d 108, 108 (Fla. 3d DCA 2002)(specially concurring opinion), review denied, 848 So.2d 1154 (Fla.2003).


author: STEVENSON, C.J.

text:
    Michael WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4305.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Believing Michael Wallace had thrown a Molotov cocktail at a vehicle, the State charged him with attempted second degree arson and making, possessing, throwing, projecting, placing or discharging a destructive device. A jury found Wallace guilty as charged and, in an interrogatory verdict, determined Wallace had “possessed” and “discharged” a destructive device. The so-called 10-20-life statute provides for a ten-year mandatory minimum sentence in the event the defendant possesses a destructive device during the commission of the crime and a twenty-year mandatory minimum in the event the defendant discharges the destructive device during the commission of the crime. § 775.087(2)(a)l.-2., Fla. Stat. (2000). Relying upon the interrogatory verdict, the trial court imposed a twenty-year mandatory minimum sentence.

Wallace appealed the sentence, arguing the evidence could not have allowed the jury to find the destructive device was discharged. This court agreed and remanded the case for resentencing. See Wallace v. State, 860 So.2d 494, 498 (Fla. 4th DCA 2003).

On remand, relying upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), clarified in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Wallace took the position that the 10-20-life statute’s ten-year mandatory minimum for possession of a destructive device was improper because neither the jury instructions nor the verdict itself made a distinction between actual and constructive possession and only actual possession justified imposition of the mandatory minimum. Despite Wallace’s arguments, the trial court imposed the ten-year mandatory minimum, which resulted in the instant appeal.

There is no question that only actual physical possession will support the imposition of the 10-20-life statute’s ten-year mandatory minimum. See § 775.087(2)(a)l., Fla. Stat. (requiring imposition of mandatory minimum where, during commission of enumerated offenses, defendant “actually possessed a ... ‘destructive device’ ”); James v. State, 868 So.2d 1242 (Fla. 4th DCA 2004); Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002). There is also no question that, here, neither the verdict nor the jury instructions made a distinction between actual possession and constructive possession. The State suggests the verdict’s failure is not fatal because there was no dispute at trial that the possession was “actual.” We disagree since the lack of the specific jury finding required to support imposition of a mandatory minimum sentence is not cured by the fact that the evidence on the issue was undisputed. See Bundrage, 814 So.2d at 1135 (“Even if the facts presented to the jury would only support an actual possession theory, the supreme court’s decision in [State v.] Overfelt [, 457 So.2d 1385 (Fla.1984),] and its progeny require a jury finding of actual possession to justify imposition of the ... minimum mandatory sentence.”); accord James, 868 So.2d at 1245 (quoting this language in Bundrage with approval). And, while the combination of the charging instrument and the language of the verdict can sometimes equate to the necessary factual finding in the absence of an interrogatory verdict, this is not the case here. We thus reverse the ten-year mandatory minimum sentence and remand for resentencing. In so holding, we have considered and reject the State’s claims that, for a number of procedural reasons, the merits of Wallace’s claim are not properly before this court.

Reversed and Remanded.

GUNTHER and TAYLOR, JJ., concur.

      . When appearing before the trial court, Wallace raised a number of arguments regarding why the jury had not adequately made a determination that he “actually possessed” a "destructive device” during the commission of the crime. On appeal, Wallace has abandoned all his claims save one — that there was no jury finding of actual possession.

      . See, e.g., Tucker v. State, 726 So.2d 768, 771 (Fla.1999); Hunter v. State, 828 So.2d 1038, 1039 (Fla. 1st DCA 2002); Green v. State, 778 So.2d 325 (Fla. 4th DCA 2000).


author: WELLS, Judge.

text:
    UNIVERSAL BAIL BONDS, INC. and Indiana Lumbermans Insurance Co., Appellants, v. The STATE of Florida, Appellee.
    No. 3D05-2215.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Milton Hirsch, Miami, for appellants.
    Charles J. Crist, Attorney General, and Phillip P. Quaschnick, Assistant Attorney General, Tallahassee, for appellee.
    Before COPE, C.J., and WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Universal Bail Bonds, Inc. and Indiana Lumbermans Insurance Co., collectively referred to as Universal, appeal from an order denying a motion to set aside or to discharge a bond estreature. See Mike Snapp Bail Bonds v. Orange County, 913 So.2d 88, 91 (Fla. 5th DCA 2005) (confirming that once a final appealable order or judgment has been rendered, a bonding company may address on appeal the intermediate steps culminating, in the final order or judgment). We affirm.

Osvaldo Palmer was charged in a multi-count information with drug trafficking and released from custody upon posting a $15,000 bond. Thereafter, based on the State’s notification of intent to seek enhanced penalties, Palmer was re-arrested. Following an evidentiary hearing, Palmer was released again, this time conditioned on electronic monitoring by the Miami-Dade County Corrections and Rehabilitation Department and on posting of a $100,000 bail bond.

On May 20, 2005, a representative of Universal, through Indiana Lumberman’s Mutual Ins. Co., signed Palmer’s appearance bond and posted the necessary funds. The appearance bond did not reference electronic monitoring, nor was it conditioned on any acts to be performed by any person or entity other than Palmer who agreed to appear before the circuit court to answer to trafficking charges:

KNOW ALL MEN BY THESE PRESENTS: That we, the above named defendant as principal [Palmer], and INDIANA LUMBERMENS MUTUAL
INSURANCE COMPANY, ... as surety, are held and firmly bound unto the Governor of the State of Florida ... in the sum of $100,000 ... for the payment whereof well and truly to be made we bind ourselves....
The condition of this obligation is ... that ... the said principal [Palmer] shall appear ... and shall submit to the said Court to answer the charge of cann traff [sic] only and shall submit to orders and process of said Court and not depart the same without leave....

On June 20, 2005, the Pretrial Services Bureau of the Corrections and Rehabilitation Department (PTS) advised the trial court that it had discovered over a month earlier that Palmer had removed his monitoring device and absconded but that it had forgotten to notify the court. PTS advised the court that it believed that Palmer had fled sometime between May 20 and May 24. An alias capias was issued and the bond was estreated.

Universal moved to set aside the estreature claiming that it had been irrevocably prejudiced by PTS’ failure to notify the court or Universal of Palmer’s actions. The motion and Universal’s subsequent motion for rehearing were denied and a final order of forfeiture was entered. Universal claims here that PTS’ failure to timely notify the court that Palmer had absconded altered the terms of the bail contract, resulting in constructive discharge of Universal’s obligations. See Reese v. U.S., 76 U.S. (9 Wall.) 13, 20-21, 19 L.Ed. 541 (1869). We do not agree.

The purpose of a bail bond is to assure that the defendant will comply with the conditions of the bail bond and appear or be produced by the surety before the court. See § 903.045, Fla. Stat. (2005) (a criminal surety bail bond “shall be construed as a commitment by and an obligation upon the bail bond agent to ensure that the defendant appears at all subsequent criminal proceedings and otherwise fulfills all conditions of the bond”); Wiley v. State, 451 So.2d 916, 922 (Fla. 1st DCA 1984). The theory underlying the appearance bond process is that release on bond commits the accused to the “exclusive custody of the surety,” which guarantees the State that the accused will appear at subsequent hearings. Wiley, 451 So.2d at 922; Accredited Surety and Cas. Co., Inc. v. State ex rel. Hillsborough County, 383 So.2d 308, 308 (Fla. 2d DCA 1980) (confirming that the “surety guarantees the state that the accused will appear”); see Reese, 76 U.S. (9 Wall.) at 21, 19 L.Ed. 541 (stating that “the principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing ... [and] is so far placed in their power that they may at any time arrest him ... and surrender him to the court”). The obligation was, therefore, on Universal which assumed custody and control of Palmer following his release on bail to assure his compliance with the terms of the bond which unconditionally guaranteed his appearance and to produce him before the court.

True, a bond is a three-party contract between the State, the accused, and the surety, and interference by the State with the surety’s right to control the accused constitutes a substantial breach of the surety contract which discharges the surety. Fast Release Bail Bonds, Inc. v. State, 895 So.2d 448, 450 (Fla. 4th DCA 2005) (citing Bush v. Int’l Fid. Ins. Co., 884 So.2d 212, 214 (Fla. 4th DCA 2003)); Wiley, 451 So.2d at 922. But the State did not interfere with Universal’s custody or control of Palmer. Rather, Miami Dade County’s Department of Corrections and Rehabilitation Department simply failed in its independent duty to the trial court to assure Palmer’s appearance via monitoring and supervision, a risk known and accepted by Universal when it issued its bail bond and became independently obligated to keep track of Palmer and to produce him in court. See 10A John Alan Apple-man & Jean Appleman, Insurance Law and Practice § 6117 (1981) (“The surety voluntarily assumes technical custody of the accused for the purpose of assuring that he appear before the court as required by the bond. This requires the surety to keep in active contact with the defendant, or, at least, to exercise a reasonable surveillance over him.”) (footnotes omitted).

In this case, Palmer, not the State, violated the bond’s conditions when he failed to appear. This was a risk the surety assumed for a fee when it agreed to guarantee his appearance. Accordingly, the order under review is affirmed.

      . Universal initially appealed from the order denying the motion to set aside the estreature. Following oral argument, we relinquished jurisdiction for the purpose of permitting appellants to either obtain a final judgment of forfeiture against the surety or for payment of the bond. See Al Estes Bonding, Inc. v. Pinel-las County Bd. of County Comm’rs, 845 So.2d 254, 256 (Fla. 2d DCA 2003) (confirming that an order denying a motion to set aside an estreature is a non-final, non-appealable order that "may be reviewed by certiorari if the bond has been paid”); Chase v. Orange County, 511 So.2d 1101, 1102 (Fla. 5th DCA 1987) (dismissing without prejudice an appeal from an order denying a motion to set aside a bond estreature where entry of judgment on the forfeiture had been stayed). A final order has now been entered.

      . Thus, we find inapplicable the cases relied on by the surety. See U.S. v. Aguilar, 813 F.Supp. 727, 728-29 (N.D.Cal.1993) (observing that the government materially increased the risk that the defendant would not appear for trial, where the bond was conditioned on the defendant’s not leaving the jurisdiction yet the government, without the surety's knowledge or consent, permitted the defendant to travel outside the jurisdiction to assist in a drug investigation); Surety, Seneca Ins. v. State, 846 So.2d 1154, 1155 (Fla. 1st DCA 2003) (confirming that an "extra charge was a material change to the circumstances of the bond contract among the surety, the accused, and the state" and finding that the change, "being made without notice to, or the consent of, the surety, absolved the surely from liability on the contract”); American Bankers Ins. Co. v. Monroe County, 644 So.2d 560, 561-62 (Fla. 3d DCA 1994) ("Clearly, if the state wished to require the surety company to remain legally obligated on the bail bond after the conspiracy charge was added, it should have sought the surety company’s express agreement to this substantial change in the original surety contract. This is so because surety contracts of this nature cannot be substantially amended without the express agreement of both parties to the contract.”).


author: SHEPHERD, J.

text:
    The STATE of Florida, Appellant, v. M.J., a juvenile, Appellee.
    No. 3D05-2101.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Hermogenes Jirón and Stephanie Granda, Certified Legal Interns, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal from an order granting discharge of a juvenile defendant on the ground that he was not brought to trial during the speedy trial period. The issue we must decide is whether, when the state amends a petition for delinquency on the morning of an adjudicatory hearing within a speedy trial period, and the juvenile defendant seeks a continuance based upon insufficient time to prepare for trial, the continuance should be charged to the state or to the defendant.

We find this case legally indistinguishable from the Florida Supreme Court’s decision in State v. Naveira, 873 So.2d 300 (Fla.2004) where for the same reason a continuance was charged to the defendant when the state delayed filing any charge until the last day of the (adult) speedy trial period. Accordingly, we are compelled to reverse the order granting discharge of the defendant in this case.

FACTS

On April 10, 2005, M.J. was arrested for burglary of an automobile owned by Uchi-da Hiroshi, possession of burglary tools, resisting an officer without violence, and criminal mischief. Under Florida Rule of Juvenile Procedure 8.090(a), the state was required to commence the trial of the defendant no later than July 11, 2005. An adjudicatory hearing was set for June 22, 2005. On April 22, 2005, the state filed a petition for delinquency alleging one count of resisting arrest without violence under section 843.02, Florida Statutes, a misdemeanor. On the morning of the hearing, the state filed an amended petition, adding charges of burglary in violation of section 810.02(4)(B), Florida Statutes, a felony, and unlawful breaking or damaging of an automobile window in violation of section 806.13(l)(b)2, Florida Statutes, a misdemeanor. Defendant announced that he was ready to proceed on the original charge, but not on the newly filed charges. After some discussion, the trial court granted a joint continuance over objection of the defendant. At a subsequent hearing on a motion for discharge, the trial court reversed course, charging the continuance to the state alone, and eventually dismissing the case after the state announced that it was not ready. The state appeals, arguing that continuance should have been charged to defendant. If so, then the discharge was improper in this case because the defendant was not continuously available during the speedy trial period. Fla. R. Juv. P. 8.090(d)(4).

DISCUSSION

We find this case controlled by the Florida Supreme Court’s recent decision in State v. Naveira. In Naveira, the state waited until the last day permissible under Florida Rule of Criminal Procedure 3.191 to file its charging document. Naveira alleged that the delay left him unprepared for trial and the trial court charged the state with a continuance. As here, there was no' allegation of state misconduct in the late filing. The Florida Supreme Court reversed, ruling that Rule 3.191 of Criminal Procedure creates a bright line rule by which the state may file the charging document at any time until the ninetieth day after arrest for a misdemeanor, or by the one hundred seventy-fifth day after arrest for a felony. Naveira, 873 So.2d at 310. We see no reason why an amended petition should be treated differently so long as the amended petition is timely filed within the prescription of Rule 8.090 of Juvenile Procedure. See Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971) (holding that the filing of an amended information supplants the original information).

Defendant also argues that the criminal case must be dismissed as a result of discovery violations by the state. Such allegations can give cause for the trial court to dismiss the charges. Naveira, 873 So.2d at 307; Hahn v. State, 626 So.2d 1056 (Fla. 4th DCA 1993). However, we find no record evidence that such an issue was raised or considered by the trial court. Accordingly, we decline to consider this issue for the first time on appeal.

Order granting discharge reversed.


author: SUAREZ, J.

text:
    Marietta SOMOZA, Appellant, v. ALLSTATE INDEMNITY COMPANY, a foreign corporation, Appellee.
    No. 3D05-1916.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Clyne <& Associates and Reginald J. Clyne, Miami, and Noel F. Johnson, for appellant.
    Adams & Adams and Richard B. Adams, Jr., Miami, for appellee.
    Before COPE, C.J., and SUAREZ and ROTHENBERG, JJ.
   SUAREZ, J.

Marietta Somoza (“Somoza”) appeals the trial court’s final judgment awarding Allstate Indemnity Company (“Allstate”) a setoff against a jury verdict in her favor, and the jury verdict award of nothing for pain and suffering. We affirm on both points.

On January 27, 1998, Somoza was involved in an automobile accident with an underinsuréd motorist in which she claimed to have received injuries. Her automobile insurance company, Allstate, paid $10,000.00 in personal injury protection (“PIP”) for her medical treatment. The tortfeasor’s automobile insurance carrier, Progressive Insurance Company (“Progressive”), tendered Somoza the tort-feasor’s policy limit of $10,000.00 with Allstate’s permission. Somoza brought the present underinsured motorist action against Allstate claiming economic damages for past and future medical treatment and non-economic damages for past and future pain and suffering. The jury awarded Somoza $20,350.00 for past medical expenses, nothing for future medical expenses, and $2,000.00 for loss of past earnings. The jury awarded Somoza nothing for past or future pain and suffering, having found that she suffered no permanent injury as a result of the accident. The trial court’s final judgment contains two setoffs against the verdict: $10,000.00 for Allstate’s payment of PIP benefits, and $10,000.00 for Progressive’s payment under the tortfeasor’s policy. Somoza appeals the setoff of Progressive’s payment as well as the award of no damages for her pain and suffering.

First, the trial court did not err by awarding Allstate a setoff in the amount of Progressive’s $10,000.00 payment. Florida law provides that an under-insured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist liability policy. § 627.727(6)(b), Fla. Stat. (1997). The credit is for the total damages and applies whether the damages are economic or non-economic. See Allstate Ins. Co. v. Rush, 777 So.2d 1027, 1031 (Fla. 4th DCA 2000). However, the underinsured motorist insurer is entitled to this credit only if the underinsured’s award duplicates the benefits received from the tort-feasor’s underinsured liability insurer. State Farm, Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 571 (Fla. 2d DCA 1999).

The issue in the instant case is whether the jury award duplicates the benefits that Somoza received from Progressive. We find that it does. Somoza accepted Progressive’s offer to pay the tortfeasor’s $10,000.00 policy limit. Somoza then filed an uninsured/underinsured motorist claim against her own underinsured automobile insurance carrier for past and future economic and non-economic damages. She presented witnesses at trial concerning past and future economic and non-economic damages. The trial court instructed the jury regarding economic and non-economic damages, and the verdict form contained a total award of damages for economic and non-economic damages. The jury’s award was a total award even though they found there was no permanent injury and made no monetary award for non-economic damages. Somoza could have requested that the jury return a verdict solely for economic damages for medical treatment, thereby ensuring there would be no duplication of the settlement with the underin-sured carrier for non-economic bodily injuries. She failed to do so. The jury’s award for economic damages and nothing for non-economic damages is a total award of damages and, therefore, duplicates the benefits that Somoza received from Progressive, and Allstate is entitled to a credit in the amount of $10,000.00. We reject Somoza’s argument that there is no duplication of benefits because the jury award was solely for economic damages for medical treatment and the settlement was solely for non-economic bodily injury damages. See Allstate Ins. Co. Inc. v. Campbell, 842 So.2d 1031 (Fla. 2d DCA 2003) (holding that the jury’s award for economic damages and nothing for non-economic damages was total award of damages which duplicated the bodily injury settlement that the plaintiffs received from the tort-feasor’s carrier, and, therefore, the court erred in failing to offset the verdict by the settlement amount). The cases that Somoza cites in support of her argument are distinguishable. See Galante v. USAA Cas. Ins. Co., 695 So.2d 456 (Fla. 4th DCA 1997) (reversing setoff where the jury was not asked to consider economic damages for medical expenses); State Farm v. Vecchio, 744 So.2d at 570 (the claim against the uninsured motorist carrier was solely for non-economic damages). We therefore affirm the trial court’s final judgment awarding a setoff against the verdict award in the amount of Progressive’s $10,000.00 settlement with Somoza.

Somoza next claims that the jury’s award of no damages for pain and suffering requires a new trial as a matter of law. We disagree. At trial, Somoza introduced evidence that she suffered permanent injuries due to the accident. Allstate’s experts testified that Somoza’s injuries were preexisting or occurred after the accident and were not caused by the accident. The jury found that Somoza suffered no permanent injuries as a result of the accident. The record contains competent substantial evidence to support the jury’s verdict. As Somoza failed to meet the threshold requirement of demonstrating that she suffered permanent injury as a result of the accident, the award of no damages for Somoza’s pain and suffering is not erroneous. See Beauvais v. Edell, 760 So.2d 262 (Fla. 4th DCA 2000)(holding that a verdict awarding only medical expenses does not require a new trial as a matter of law).

Affirmed.


text:
    Eliezer BARRIENTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3451.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied May 24, 2006.
    John D. Middleton of John D. Middleton, P.A., Melrose, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our previously issued opinion and substitute the following in its place.

Eliezer Barrientos seeks review of an order that summarily denied his multi-issue Florida Rule of Criminal Procedure 3.850 motion. We reverse and remand for further review of two related points and affirm the denial of the remaining claims.

Barrientos was tried and convicted for the sole offense of possession of a firearm by a convicted felon. There was a stipulation that Barrientos was a convicted felon. Hence, the state needed to prove that the firearm was in Barrientos’ care and control, as it was unquestionably in the vehicle he was driving when he was stopped by police, and the vehicle was registered to him. Accordingly, to challenge the remaining element, Barrientos had to create doubt that the firearm was in his care or control. Testimony that others had borrowed the vehicle was therefore relevant.

According to Barrientos, he wanted to testify that he did not put the firearm in his car, and at times he allowed others to use his vehicle. In the ninth point of his motion for postconviction relief, Barrientos argued that counsel intimidated and coerced him into waiving his right to testify. He alleged that counsel advised that it was his policy not to place on the witness stand any client who had prior felony convictions. Barrientos alleges that counsel assured Barrientos that this testimony would be presented through other defense witnesses. Also, Barrientos claims that counsel told him that if he testified, the state would be allowed to reveal to the jury the exact nature of his prior convictions.

In Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996), the supreme court stated “that in order to obtain postconviction relief, a defendant claiming his or her right to testify was violated must show that counsel’s performance was deficient and that deficient performance prejudiced the defense.” In this case, reversal is warranted because of Barrientos’ related claim that counsel was ineffective in having failed to present defense witnesses Alberto Valez and Edward Pratt who would have provided testimony that Barrientos allowed them and others to use his vehicle. The record below does not refute Barrien-tos’ specific claim that he forewent testifying because the defense witnesses would furnish such evidence. As the potential defense witnesses did not testify about Barrientos’ “practice” of lending his car to them and others, no evidence was presented from which defense counsel could present this theory to cast reasonable doubt.

Apparently the decision not to call the witnesses was made when defense counsel advised that if the witnesses testified, the prosecution would inform the jury that prior to the stop and arrest of Barrientos, a search warrant had been executed at a residence believed to be his, and that the police were looking for drugs. It is not clear whether Barrientos was aware of this when deciding whether to testify.

The case is reversed and remanded for an evidentiary hearing on these issues.

WARNER, SHAHOOD and MAY, JJ., concur.


text:
    A.J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2784.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was adjudicated delinquent for being in possession of Xanax, a controlled substance. She appeals the denial of her dispositive motion to suppress. The search and seizure were incident to a lawful arrest for trespassing in a stolen motor vehicle. We therefore affirm.

Affirmed.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Richard ROLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-225.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Richard Roland, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Reversed and Remanded. See Haygood v. State, 872 So.2d 444, 444 (Fla. 4th DCA 2004) (“As Haygood provides the specific dates and alleges that court files will support his claim, we reverse and remand with directions for the trial court to either refute Haygood’s claims with record attachments or award the appropriate relief.”).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Anton Bernard BUSSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4573.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Anton Bernard Bussey, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Anton Bernard Bussey seeks review of an order that summarily denied his motion through which he sought to enforce a plea agreement. Bussey, entered into a negotiated plea to resolve charges associated with a violation of probation and new substantive offenses. Bussey was sentenced to 99.15 months in prison with credit for 4 years and 199 days time served. Within his motion to enforce plea agreement Bus-sey alleged that the Department of Corrections declared a forfeiture of 191 days. See § 944.28(1), Fla. Stat. (2003).

Bussey’s position is that the DOC’s actions thwarted the intent of the negotiated plea. Having reviewed the record provided, which includes a copy of the plea colloquy, we find that Bussey has stated a colorable claim. Hunt v. State, 922 So.2d 452 (Fla. 4th DCA 2006); State v. Jackson, 842 So.2d 1040 (Fla. 3d DCA 2003); Della-hoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002); Williams v. Department of Corrections, 734 So.2d 1132 (Fla. 3d DCA 1999). We therefore reverse and remand for an evidentiary hearing.

POLEN, TAYLOR and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Robert J. BLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3819.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      Robert J. Block, Chattahoochee, pro se.
    No appearance required for appellee.
   KLEIN, J.

The trial court summarily denied appellant’s rule 3.850 motion, which we affirm without further discussion. He is also attempting to appeal an order confirming the result of a DNA test he requested, which we conclude is not appealable.

Appellant was convicted of several crimes arising out of a burglary, including aggravated battery, which was based on his stabbing the victim with a knife. After his conviction was affirmed on appeal, appellant filed a motion under Florida Rule of Criminal Procedure 3.853 seeking DNA testing, based on his contention that the victim was never stabbed with the knife and that a DNA test on the substance on the knife would demonstrate that there was no blood of the victim on the knife. The trial court denied the motion for DNA testing, but we reversed that order and the DNA testing was then carried out. The result of the DNA test revealed that the victim’s blood was on the knife, and the trial court then issued an order which read:

This Court accepts such undisputed findings, and, based upon the above, Court finds that the mandate of the Fourth District Court of Appeal has been complied with.

The order also notified appellant that he had thirty days in which to appeal the order.

Rule 3.853 authorizes appeals from orders on motions which request DNA testing, providing in rule 3.853(f):

Appeal. An appeal may be taken by any adversely affected party within 30 days from the date the order on the motion is rendered. All orders denying relief must include a statement that the mov-ant has the right to appeal within 30 days after the order denying relief is rendered.

The order which appellant is attempting to appeal is not an order described by rule 3.853(f), but rather an order confirming the results of the testing he requested.

Rule 3.853(d)(2) authorizes the filing of a motion for post-conviction relief in the trial court based on the result of court-ordered DNA testing, and provides that such a motion shall be treated as a claim of newly discovered evidence. There is no provision in rule 3.853, however, or in any other rule, which would authorize an appeal from this order. We accordingly dismiss the appeal from the order entered after the DNA testing and affirm the denial of appellant’s rule 3.850 motion.

STONE and SHAHOOD, JJ., concur.


text:
    O.R.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2683.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. R.R., 697 So.2d 181 (Fla. 3d DCA 1997).


text:
    Richard Oswell WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4096.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. McCloud, 577 So.2d 939 (Fla.1991).

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


author: BROWNING, J.

text:
    James DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0147.
    District Court of Appeal of Florida, First District.
    May 25, 2006.

      Robert Augustus Harper and Robert Augustus Harper, III, of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant seeks review of his convictions and sentences in circuit court case number 02-0759. For the reasons stated below, we affirm the convictions, reverse the sentences, and remand for resentencing.

Appellant was charged in Gadsden County, in circuit court case number 02-0759, with six counts of sexual crimes against his niece. Count I charged sexual battery by a person in familial or custodial authority by “penetration or union,” occurring between March 5, 1998, and August 26, 2002. Count II charged sexual battery by a person in familial or custodial authority by penetration, occurring between March 5, 1998, and August 26, 2002. Count III charged lewd and lascivious molestation, described as touching of “the breasts, genitals, genital area, or buttocks, or the clothing covering them,” between March 5, 1997, and March 5, 1998. Count IV alleged the same conduct as Count III, but between March 5, 1998, and March 5, 2002. Count V charged lewd and lascivious exhibition between March 5, 1997, and March 5, 2002. Count VI charged the showing of obscene material to a minor during the year 2001.

Before trial, the State filed a notice of other acts evidence based on two other charges of sexual battery against the same victim between March 5, 1998, and August 26, 2002, pending in Leon County. After trial, the jury found Appellant guilty of all six Gadsden County counts as charged.

At the sentencing hearing, Appellant entered a negotiated plea to the Leon County charges. The trial court then sentenced Appellant on those counts in accordance with the plea agreement. Immediately thereafter, the trial judge said, “[n]ow, you are here on Gadsden County case number [02-0759],” and heard evidence in mitigation. Next, the State presented a single sentencing guidelines scoresheet with all eight of Appellant’s convictions listed as primary or additional offenses. Thereafter, the trial court sentenced Appellant to 30 years of incarceration on Counts I — III, 15 years of incarceration on Counts IV & V, and five years of incarceration on Count VI, all terms concurrent with one another and with sentences imposed in the Leon County case. Appellant appeals and makes six arguments for reversal.

First, Appellant argues that the State’s motion in limine should have been denied. This argument was not preserved for review because Appellant did not proffer the evidence he would have introduced. See, e.g., Trease v. State, 768 So.2d 1050, 1054 (Fla.2000).

Second and third, Appellant argues that the two Leon County crimes should have been scored on a separate scoresheet, and that Gadsden County counts III & V should have been scored on another separate scoresheet. Appellant is half right. The Leon County crimes were properly scored on a 1995 sentencing guidelines scoresheet, together with Gadsden County counts I, II, IV, & VI, because the rules of criminal procedure provide that “one scoresheet shall be prepared for all offenses committed under any single version or revision of the guidelines, pending before the court for sentencing.” Fla. R.Crim. P. 3.703(d)(2).

In contrast, Gadsden County counts III & V should have been scored on a 1994 sentencing guidelines scoresheet, as the State has correctly conceded. Continuing offenses are sentenced under the guidelines in effect on the first date of the offenses. See § 921.001(4)(b)3., Fla. Stat. (1997); Fla. R.Crim. P. 3.703(d)(5). The first date of Appellant’s continuing offenses in Counts III & V was during the “Heggs window,” a time when the applicable sentencing guidelines were unconstitutional. See Heggs v. State, 759 So.2d 620 (Fla.2000); Trapp v. State, 760 So.2d 924 (Fla.2000). Appellant was adversely affected by imposition of the unconstitutional guidelines because he could not have received the same sentence under the 1994 guidelines without a departure. See Heggs, 759 So.2d at 627. The remedy is resentencing under the 1994 guidelines. See id. at 630-31. Moreover, because Appellant’s eight felonies were committed under more than one version of the guidelines, he must be resentenced with two separate scoresheets, Counts III & V on the scoresheet effective January 1, 1994, and the other six counts on the scoresheet effective for offenses committed on or after October 1, 1995. See § 921.001(4)(b)4., Fla. Stat. (1997); Fla. R.Crim. P. 3.703(d)(3), 3.990, & 3.991; Dillard v. State, 728 So.2d 725 (Fla.1999). Counts III & V may be entered on the 1995 scoresheet as “prior record.” See id. at 726 n. 5.

Fourth, Appellant argues that his Count III should have been scored as a level seven offense; the State correctly concedes the point, which requires resentenc-ing on such count. See §§ 800.04 & 921.0012, Fla. Stat. (1997).

Fifth, Appellant argues that victim injury points should have been assessed only once because there was only one victim. This argument has no merit because a trial court is required to assess these points for each injury, even when the same victim is involved. See Jupiter v. State, 833 So.2d 169 (Fla. 1st DCA 2002); State v. Williams, 854 So.2d 215 (Fla. 1st DCA 2003).

Sixth, Appellant raises two related claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi states that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Applying Apprendi to the instant case, Appellant first argues that the trial court erred in assessing points for penetration on Count I because he was charged in the alternative with penetration or union and the jury did not specify either penetration or union in its verdict. Appellant is correct that he should have received only 40 victim injury points for Count I, for sex contact, rather than 80, for penetration. See Behl v. State, 898 So.2d 217 (Fla. 2d DCA 2005). However, there is no Apprendi violation here because, as the record indicates, the 40 additional victim injury points did not cause Appellant’s sentence on Count I to exceed the prescribed statutory maximum as calculated under a corrected scoresheet. See Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Isaac v. State, 911 So.2d 813, 815 (Fla. 1st DCA 2005).

Finally, Appellant argues that he should not receive any points for sexual contact because, in both Counts III & IV, he was charged in the alternative with touching either the victim’s “breasts, genitals, genital area, or buttocks,” but the jury did not specify what he had touched, and the touching of a child’s buttocks does not necessarily constitute sexual contact, as held in Borjas v. State, 790 So.2d 1114 (Fla. 4th DCA 2001). However, this Court has defined sexual contact to include the touching of a child’s buttocks. See Seag-rave v. State, 768 So.2d 1121 (Fla. 1st DCA 2000). In any event, Appellant is correct that the victim injury points for Count III should total only 18 points rather than 40, because, as discussed above, Count III must be scored under the 1994 sentencing guidelines.

Accordingly, we AFFIRM the convictions, REVERSE the sentences, and REMAND for resentencing.

WEBSTER and POLSTON, JJ„ concur.


text:
    Jim Lee McGAHEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-0520.
    District Court of Appeal of Florida, First District.
    May 25, 2006.

      Nancy A. Daniels, Public Defender, and Marjorie C. Holladay, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal from conviction for sale or delivery of cocaine, Appellant raises several issues, only one of which merits discussion. Appellant contends that the trial court erred in failing to instruct the jury that in order to convict, the jury had to find that Appellant knew that the substance that changed hands was cocaine. We agree and reverse and remand for a new trial.

Appellant was alleged to havd sold or delivered cocaine within 200 feet of a public park on July 27, 2000. The date of the offense preceded the enactment of section 893.101, Florida Statutes, which provides that knowledge of the illicit nature of the controlled substance is not an essential element of a drug offense under chapter 893, Florida Statutes. Therefore, the trial court was required to give the requested instruction on the knowledge element. See Norman v. State, 826 So.2d 440, 440-41 (Fla. 1st DCA 2002). The trial court’s failure to properly instruct the jury on each of the elements of the offense mandates reversal and remand for a new trial before a jury instructed in the manner required by McMillon v. State, 813 So.2d 56, 58 (Fla.2002). See Norman, 826 So.2d at 440-41.

Accordingly we reverse Appellant’s conviction and sentence and remand for a new trial.

REVERSED and REMANDED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


author: BENTON, J.

text:
    William E. HARDEE, Appellant/Cross-Appellee, v. Rose M. HARDEE, Appellee/Cross-Appellant.
    No. 1D05-2354.
    District Court of Appeal of Florida, First District.
    May 25, 2006.

      Susan W. Fox, Esquire of Fox & Lo-quasto, P.A., Tampa and Wendy S. Lo-quasto, Esquire of Fox & Loquasto, P.A., Tallahassee, for Appellant/Cross-Appellee.
    Daniel T. O’Connell, Esquire, Gaines-ville, for Appellee/Cross-Appellant.
   BENTON, J.

William E. Hardee appeals the amended final judgment of dissolution of the parties’ marriage. On his appeal, because the trial court erroneously designated certain assets and liabilities as marital, we reverse and remand for reconsideration of the equitable distribution scheme. See Noah v. Noah, 491 So.2d 1124, 1128 (Fla.1986) (“[T]he trial court should be given an opportunity on remand to reconsider the entire distribution scheme, including ... alimony, as these are interrelated remedies and part of one overall scheme.”). Rose M. Hardee having abandoned the cross-appeal, we affirm on cross-appeal.

Section 61.075(1), Florida Statutes, “requires that the trial court distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur.” Hoirup v. Hoirup, 862 So.2d 780, 782 (Fla. 2d DCA 2003) (quotation omitted). The trial court “may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal ■ distribution.” Id. See also § 61.075(1), Fla. Stat. (2002). But the court should “ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980)).

The trial court erred in treating a theoretically possible settlement of Mr. Hardee’s workers’ compensation claim as a marital asset for purposes of equitable distribution. The evidence was that the carrier had offered Mr. Hardee a lump sum of $75,000 to settle his workers’ compensation claim, but that he had rejected the offer in favor of receiving ongoing, periodic disability and medical workers’ compensation benefits. No settlement had been reached, and no settlement monies were shown to be likely to materialize. See Hoirup, 862 So.2d at 782.

Any such settlement would, moreover, represent future lost wages, disability and medical expenses, not a marital asset. See Weisfeld v. Weisfeld, 545 So.2d 1341, 1345 (Fla.1989) (explaining that “noneconomic compensatory damages for pain, suffering, disability, and loss of ability to lead a normal life and the economic damages which occur subsequent to the termination of the marriage of the parties, including the amount of the award for loss of future wages and future medical expenses” constitute separate property of the injured spouse); see also White v. White, 820 So.2d 432, 434 (Fla. 4th DCA 2002) (“Only that portion of damages paid to the injured spouse as compensation for past lost wages and loss of earning capacity is to be considered marital property.”).

The trial court also erred in treating a $9,000 debt incurred by Ms. Hardee after the petition was filed as a marital liability. See § 61.075(6), Fla. Stat. (2002) (“The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement ..., or the date of the filing of a petition for dissolution of marriage.”); Guelpa v. Guelpa, 885 So.2d 409, 410 (Fla. 1st DCA 2004) (“[S]ection 61.075(6), allows the trial court discretion to value assets as of different dates, but does not allow such discretion with regard to determining assets and liabilities .... The trial court erred here by including on the husband’s side of the distribution, numerous liabilities incurred after the date of the filing of the petition.”).

Reversed and remanded.

KAHN, C.J. and WOLF, J„ concur.


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    Angelo GILLISLEE, Appellant, v. FPL, Eby Construction and Liberty Mutual Ins., Appellees.
    No. 1D05-4522.
    District Court of Appeal of Florida, First District.
    May 25, 2006.

      Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Wescott, P.A., Winter Park, for Appellees.
   PER CURIAM.

Claimant seeks review of an order of the Judge of Compensation Claims (JCC), which dismissed his verified petition for attorney’s fees with prejudice, after Claimant failed to file the petition within the time-frame specified by the JCC. We reverse. As we recently held in Villazano v. Horace Bell Honey Co. & Ameritrust, 928 So.2d 515 (Fla. 1st DCA 2006), “the JCC did not have authority, pursuant to either statute or rule, to set a time limitation for filing the verified petition for fees.” Although we recognize the JCC was merely attempting to govern his own docket, the Legislature has not yet given JCCs the authority to do so. Consequently, we are compelled to REVERSE and REMAND for proceedings consistent with Villazano.

ALLEN, LEWIS, and HAWKES, JJ., concur.


text:
    Jeffrey D. RICH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5288.
    District Court of Appeal of Florida, First District.
    May 25, 2006.
    Jeffrey D. Rich, pro se, Petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the report and recommendation of the special master, the petition seeking a belated appeal of the order rendered on or about April 8, 2005, denying petitioner’s motion for posteonviction relief in Escambia County Circuit Court case number 2000-CF-000274, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

ALLEN, WEBSTER, and HAWKES, JJ., concur.


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    DEPARTMENT OF CORRECTIONS, Petitioner, v. STATE of Florida, John Doe, Respondent.
    No. 1D05-5318.
    District Court of Appeal of Florida, First District.
    May 25, 2006.

      Richard Joseph Saliba, Assistant General Counsel, Department of Corrections, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, and Albert H. Grinsted, III, Tallahassee, for Respondent.
   PER CURIAM.

The challenged “notice of hearing” subpoena appears to be a veiled attempt to use the contempt power of the trial court to compel the Department of Corrections to assign probation officers to the court, rather than requesting them on a case-by-case basis. As such, it is a nullity. The petition for writ of certiorari is therefore GRANTED and the subpoena is QUASHED.

BARFIELD, ALLEN, and BROWNING, JJ., concur.


text:
    Joan HARRIMAN, Appellant, v. Elmer GOFF, Mario Valdez, Tonya Kent Valdez, AIG Insurance (Illinois National) c/o Alday Insurance (Agent), Appellees.
    No. 1D06-0275.
    District Court of Appeal of Florida, First District.
    May 25, 2006.
    Joan Harriman, pro se, Appellant.
    George W. Hatch, of Kubicki Draper, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 28, 2006, the Court has determined that the order does not constitute a final order of dismissal. Specifically, although the order grants motions to dismiss with regard to defendants Elmer Goff and AIG Insurance, the lower tribunal has not yet dismissed them as parties to the action. See generally Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). Furthermore, the remainder of the order on appeal merely contains interlocutory rulings not yet ripe for appellate review. See, e.g., Pagenet, Inc. v. Dep’t of Revenue, 843 So.2d 1027 (Fla. 1st DCA 2003). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. In light of the dismissal, the appellant’s Motions for Enlargement of Time to Submit Brief, filed on March 3, 2006, and April 24, 2006, are denied as moot.

ALLEN, WOLF, and WEBSTER, JJ., concur.


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    Anthony UTU, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-968.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After being convicted at trial of two counts of unlawful sexual activity with a minor, in violation of section 794.05(1), Florida Statutes (2004), Anthony Utu appeals, contending that the trial court erred in denying his motion to suppress his statement to police. We affirm.

Appellate review of a trial court’s denial of a motion to suppress is generally a mixed question of law and fact. State v. Kindle, 782 So.2d 971, 973 (Fla. 5th DCA 2001). The trial court’s factual findings are reviewed to determine if they are supported by competent, substantial evidence. Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002). The trial court’s application of the law to the facts is reviewed de novo. Connor v. State, 803 So.2d 598, 608 (Fla.2001). “A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Doorbal v. State, 837 So.2d 940, 952 (Fla.2003) (quoting Terry v. State, 668 So.2d 954, 958 (Fla.1996)).

On appeal, Utu argues that his confession should have been suppressed because he was not Mirandized, and his statement was induced by the investigator’s promise that he would not be arrested. Having reviewed the record thoroughly, we find competent, substantial evidence to support the trial court’s conclusion that Utu’s interrogation was non-custodial and that his statement was not induced by any promises made by the investigator. Accordingly, Utu’s convictions are affirmed.

AFFIRMED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: LAWSON, J.

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    STATE of Florida, Appellant, v. Steven Duain HOLMES, Appellee.
    No. 5D05-3891.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.

      Charles J. Christ, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   LAWSON, J.

The State of Florida appeals an order summarily granting Steven Duain Holmes’ motion for postconviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure, without holding an ev-identiary hearing. We reverse.

Holmes was charged by information with attempted second degree murder for cutting the neck/throat of victim Keisha McKay with the blade of a “box cutter.” The trial judge instructed the jury on this charge, and on the lesser included offenses of aggravated battery, aggravated assault, battery, and assault. The jury returned a guilty verdict as to the lesser offense of aggravated battery, a second degree felony. The trial court sentenced Holmes to the lowest prison sentence permissible under the sentencing guidelines, followed by a period of probation. This court affirmed the conviction and sentence on direct appeal. See Holmes v. State, 861 So.2d 1170 (Fla. 5th DCA 2003) (table).

In his 3.850 motion, Holmes alleged that his trial counsel was ineffective for failing to also request a lesser instruction on the offense of attempted voluntary manslaughter. The trial court granted the motion without holding an evidentiary hearing, citing to Holmes v. State, 642 So.2d 1387 (Fla. 2d DCA 1994). That case holds that: “Failure to give an instruction for an offense one step removed from the conviction constitutes per se reversible error.” Id. at 1388. In an en banc opinion currently on review by the Florida Supreme Court, the First District held that a postconviction claim based upon counsel’s failure to request a lesser included offense instruction cannot meet the prejudice prong of Strickland as a matter of law. See Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), review granted, 905 So.2d 892 (Fla.2005). Our court has expressed disagreement with Sanders, but holds that the failure to request a jury instruction for a lesser included offense “states a color-able claim of ineffective assistance” which may be assessed “only ... after an eviden-tiary hearing.” James v. State, 881 So.2d 85, 86 (Fla. 5th DCA 2004). Because it is possible that counsel’s decision not to re-quest instruction on the lesser offense of voluntary manslaughter was a valid strategic decision, the trial judge should have at least afforded the State an opportunity to challenge Holmes’ allegations at an eviden-tiary hearing. Id. Therefore, at a minimum, reversal is warranted for an eviden-tiary hearing. Obviously, if our Supreme Court agrees with the First District’s reasoning in Sanders, summary denial of Holmes’ claim would be warranted.

REVERSED and REMANDED for further proceedings.

GRIFFIN and PALMER, JJ., concur.

      . We would note that here, however, counsel did request an instruction for an offense one step removed from the conviction. Aggravated assault (one of the lesser offenses on which an instruction was given), is the same offense level as the crime of attempted voluntary manslaughter. Both are third degree felonies, one degree removed from the crime of aggravated battery.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Arguably, summary denial of Holmes' 3.850 claim may be appropriate irrespective of the Supreme Court's ultimate holding in Sanders. The rationale for the rule requiring reversal when a trial court fails to instruct on a lesser offense one step removed from the conviction is that the jury must be "given a fair opportunity to exercise its inherent 'pardon' power by returning a verdict of guilty as to the next lower crime.” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978). Here, the jury was given an opportunity to further exercise its pardon power by convicting Holmes of aggravated assault. For this reason, Holmes arguably cannot demonstrate prejudice under Strickland. However, this issue was not briefed on appeal. Therefore, we decline to address it.


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    Hager D. STEVENS, Appellant, v. Monte C. STEVENS, Appellee.
    No. 5D05-4492.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.
    Victoria S. Anderson of Newman, Anderson & Maloy, Lake Mary, for Appellant.
    James J. Partlow and Virginia Cassady of Stenstrom, McIntosh, Colbert, Whig-ham, Reischmann & Partlow, Lake Mary, for Appellee.
   LAWSON, J.

Hager D. Stevens appeals from an order enforcing the custody provisions of the final divorce decree that dissolved her marriage to Monte C. Stevens. We affirm, and write to address one point raised on appeal.

The parties were divorced in early 2000. They entered a marriage settlement agreement, (“MSA”), providing that Hager Stevens, (“mother”), would retain custody of their minor children until 2003, at which time Monte Stevens, (“father”), would take custody of both children. The MSA was adopted and incorporated into a final divorce decree (“final judgment”). Therefore, as part of the final judgment, the parties were ordered to obey all provisions of the MSA.

When the father was ready to take custody pursuant to the MSA and final judgment, however, the mother refused to relinquish the children. Therefore, the father filed a motion for contempt seeking to enforce the final judgment. The trial court ordered the mother to deliver the children to the father, who would become the primary residential parent pursuant to the MSA and final judgment. This appeal followed.

On appeal, the mother argues that the trial court erred by ordering a change in custody without first requiring the father to plead and prove: (1) a substantial and material change of circumstances; and (2) that the custody change would promote the best interests of the children. Ironically, all of the cases cited by the mother deal with the heavy burden that a party must sustain when seeking to modify a final divorce decree providing for child custody. See, e.g., Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005) (“A final divorce decree providing for the custody of a child can be materially modified only if (1) there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) there has been a change in circumstances shown to have arisen since the decree.”). Here, however, the father is simply seeking to enforce the final judgment. It is the mother who wants to alter the custody arrangement decreed in the final judgment. Therefore, the cases she cites set forth the burden that she must meet in the event she files a motion to modify the final judgment.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . The father serves in the United States Marine Corps. At the time of the marriage settlement, he was scheduled for overseas deployment but knew that he could get a stateside assignment by volunteering to extend his overseas tour. Therefore, the MSA was designed to allow the children to reside with the mother until the father completed his overseas assignment and secured stable housing in the United States, at which point he would take custody. Because the father would have sixteen years in the service by 2003, he anticipated that he could retire after this final assignment and remain in the United States.


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    Tihlo WOODS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1086.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.

      Tihlo Woods, Wildwood, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Tihlo Woods petitions for certiorari review of the trial court’s order denying his petition for writ of habeas corpus. We treat the petition for certiorari as an appeal of a final order. See, e.g., Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006). Finding that the petition for writ of habeas corpus was properly denied, we affirm. Id.

AFFIRMED.

THOMPSON, MONACO and LAWSON, JJ., concur.


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    Erik T. ABBOT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1243.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.
    Erik T. Abott, Jasper, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Abbot petitions this court for a belated appeal. We deny his petition without prejudice. To the extent Abbot claims ineffective assistance of counsel, he must pursue these claims by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850 in the trial court. To the extent that he seeks a belated appeal, his pleading is insufficient because his petition is un-sworn. See Fla. R.App. P. 9.141(c)(3)(F); Cosby v. State, 911 So.2d 275 (Fla. 5th DCA 2005).

Petition for Belated Appeal DENIED Without Prejudice.

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