text:
    Raphael PUZIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0896.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2007.

      Nancy Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This case comes to us on petition for writ of certiorari from an order of the circuit court acting in its appellate capacity. The circuit court’s order affirmed an order of the county court in the criminal case against the petitioner and defendant below, Raphael Puzio. In its order, the county court denied the defendant’s motion to dismiss, which was based on speedy trial grounds. We conclude that the circuit court departed from the essential requirements of law in affirming the county court’s ruling and therefore we grant the petition.

On June 22, 2003, the defendant was arrested for misdemeanor retail theft of a coffee grinder at Lowe’s home improvement store in Gainesville. The arresting officer issued the defendant a notice to appear, in lieu of arresting and booking him. The notice to appear instructed the defendant to appear in court at 9:00 a.m. on July 9, 2003, for arraignment. Over the next three months, a series of miscommu-nications between the clerk’s office, the State Attorney’s office and the defendant’s attorney ensued.

Four days after the defendant’s arrest, on June 26, 2003, the defendant’s attorney filed a “Notice of Appearance, Waiver of Arraignment, Written Plea of Not Guilty, and Demand for Jury Trial” in the county court. However, the clerk of the court apparently did not put the notice to appear or the written plea on the court docket. The defendant’s attorney contacted the county clerk’s office by telephone and confirmed that the clerk’s office had received the document he had filed. However, the clerk with whom he spoke indicated that no charges had yet been filed and that the case was not set on the July 9th arraignment docket. On July 1, 2003, the defendant’s attorney received correspondence from the clerk’s office also indicating that no charges had yet been filed. Relying on this information, the defendant did not appear in court on July 9th and was not arraigned at that time.

On July 16, 2003, the clerk of court returned the Notice of Appearance, Waiver of Arraignment, Written Plea of Not Guilty, and Demand for Jury Trial to the defendant’s attorney by mail. Accompanying the document was a letter from the Criminal Intake Supervisor, R. Scott Du-Pree of the Clerk of the Circuit Court’s office, advising that the document “is being returned back to you, as no new cases have been filed with the clerk’s office as of July 16, 2003.” Notwithstanding this correspondence from the clerk’s office, the notice to appear was filed with the clerk of the court on that same date, July 16, 2003. However, it was listed on the docket as a sworn complaint.

The defendant’s attorney repeatedly telephoned the clerk’s office after July 16th, attempting to obtain information on the status of his ease. The clerk’s office advised that a sworn complaint had been filed but that the defendant was not permitted to have a copy of the sworn complaint until the information was filed. The defendant’s attorney continued calling the clerk’s office in the following weeks, to determine whether the information or other formal charges had been filed yet. On September 22, 2003, the defendant’s attorney called the clerk’s office and learned that no information or formal charges had been filed and no court date had been set. He then advised the defendant that the case had been dropped, because no charges had been filed.

Three days later, on September 25, 2003, the State filed an information charging the defendant with one count of petit theft arising from his June 22, 2003, arrest at Lowe’s. However, the defendant was not rearrested, nor did the clerk’s office notify the defendant’s attorney that the information had been filed.

Seven months later, on April 24, 2004, the defendant was notified of new felony drug charges, as well as a new petit theft charge. The defendant believed that the new petit theft charge concerned a stolen New Mexico road sign police had found at the site where he was growing the marijuana plants that were the basis of the drug charges. He then turned himself in two days later, posted bond and was released on his own recognizance.

On May 4, 2004, his attorney again filed a Notice of Appearance, Waiver of Arraignment, Written Plea of Not Guilty, and Demand for Jury Trial. At a subsequent hearing on June 15, 2004, the defendant requested and received a continuance. He also signed and filed a written waiver of speedy trial that same day. At this point, he and his attorney had yet to receive a copy of the information on the new charges. However, both believed that he was facing only new charges for the marijuana and the stolen sign, because the window for bringing a theft charge for the Lowe’s arrest had expired on September 22, 2003.

When the defendant’s attorney finally received a copy of the information on the new charges on August 10, 2004, he discovered that the petit theft now being charged was actually for the Lowe’s arrest in June of 2003. The defendant then filed a motion to dismiss on speedy trial grounds, arguing that he was entitled to a discharge, because the State had failed to file formal charges on the Lowe’s arrest within the 90-day speedy trial window for misdemeanors.

At the hearing on the motion to dismiss, the State asserted that, by virtue of a clerical error, the clerk’s office and the State Attorney’s office had mistakenly treated the notice to appear issued at the time of the Lowe’s arrest as a sworn complaint. Nonetheless, the State contended that the notice to appear was the formal charging instrument on the Lowe’s arrest and that it had been timely filed. Because the notice to appear had been filed on July 16, 2003, and because that date fell within the 90-day speedy trial window, the State maintained that the defendant had been timely charged for the Lowe’s theft.

The defendant testified at the hearing that, when he signed the waiver of speedy trial on June 15, 2004, he and his attorney were under the impression that he was facing only new charges. He explained that they both believed that the State had decided not to file charges on the Lowe’s arrest, because the time to do so had expired back in September of 2003. He testified that they did not realize that the pending theft charge was for the Lowe’s arrest, not the street sign, until he and his attorney received a copy of the information on August 10, 2004.

Randal Dupree, the criminal intake division supervisor with the clerk of court, testified that a sworn complaint was entered on the docket on July 16, 2003. He confirmed having sent a letter to the defendant’s attorney on that date, returning the pleading the attorney had filed. Du-pree explained that such pleadings were routinely returned, along with a letter stating that no charges had been filed, in cases where a sworn complaint was filed. He further confirmed that there was no indication that the defendant’s attorney had ever been informed that an information had been filed on September 25, 2003. However, he went on to testify that, as a matter of procedure, the clerk’s office does not provide a copy of the information to counsel and that, in this case, a summons and arrest warrant was ordered. According to Dupree, the defendant’s attorney was no longer listed as counsel of record in the clerk’s office when the information was filed, because the pleading the attorney had attempted to file had been returned before the case was opened. Therefore, when the case was processed as a sworn complaint, the clerk’s office treated it as a pro se case.

On cross-examination by the State, Du-pree testified that the docket entry of the notice to appear as a sworn complaint appeared to have been a mistake. On redirect, he confirmed that the docketing mistake was a clerical error. He testified that, until the information was filed on September 25, 2004, anyone who inquired of the clerk’s office about the case would have been told, based on the computer record, that a sworn complaint had been filed.

The State argued that the notice to appear was the charging document, that it had been timely filed within the 90-day speedy trial period, that the defendant had not filed a notice of expiration of speedy trial, and that the State was therefore entitled to the 15-day recapture period under rule 3.191, Florida Rules of Criminal Procedure. The judge ruled from the bench that the notice to appear was a proper charging document and that it had been filed with the clerk on July 16, 2003. Therefore, the court ruled, the defendant was required to file a notice of expiration of speedy trial and afford the State the benefit of the recapture period.

Following the court’s oral ruling, the defendant entered a plea of nob contende-re to the petit theft charge, reserving his right to appeal the denial of his motion to dismiss. He subsequently appealed to the circuit court, challenging the county court’s ruling on his motion to dismiss, and the circuit court issued a per curiam affir-mance without written opinion.

Under Florida’s speedy trial rule, the State was required to bring the defendant to trial on the charges stemming from the Lowe’s arrest within 90 days. See Fla. R.Crim. P. 3.191(a)(1). The speedy trial period began to run when the defendant was served with the notice to appear. See Fla. R.Crim. P. 3.191(d). In the usual case, if the State fails to try the defendant within 90 days, the rule requires the defendant to file a notice of expiration of speedy trial within five days, which then gives the State ten more days to bring the defendant to trial. See Fla. R.Crim. P. 3.191(i)(2)-(3). Here, however, the State forfeited the right to this recapture period, as well as the right to refile charges based on the Lowe’s arrest.

Under the circumstances of the instant case, the defendant did not have the ability to assert his right to a speedy trial. This was due at least in part to the actions of the State. In such circumstances, the courts have held that the State forfeits the right to the recapture period.

A substantial body of case law has developed in Florida establishing the general principle that, when the State’s actions have deprived the defendant of the ability to assert his right to a speedy trial, it would thwart the purpose of the rule to allow the State to pursue charges by-means of the recapture period. The rule itself expressly warns that the State may not circumvent the intent of the rule by appearing to drop the charges against a defendant, only to refile them later. See Fla. R.Crim. P. 3.191(h)(2). Thus, the State may not unilaterally toll the running of the speedy trial period by entering a nolle prosequi see State v. Agee, 622 So.2d 473 (Fla.1993); by voluntarily dismissing pending charges before an information or indictment has been filed, see Genden v. Fuller, 648 So.2d 1183 (Fla.1994); or by arresting the defendant and then simply doing nothing until after the speedy trial period has run. State v. Williams, 791 So.2d 1088 (Fla.2001).

In each of these situations, the State’s actions prevent the defendant from effectively pursuing his right to a speedy trial. Allowing the State to proceed to trial pursuant to the recapture period, after its own actions had led to the lapse of the speedy trial period, would eviscerate the rule. The central concern is to prevent the State from avoiding the rule by waiting to formally charge an accused, appearing to abandon the case, and then resurrecting the charges later, based on the same conduct. Such a result is “contrary to the spirit of the speedy trial rule.” Genden, 648 So.2d at 1185 (quoting Agee, 622 So.2d at 475). Therefore, in these types of circumstances, the State may not file charges based on the same conduct after the speedy trial period has expired. See Genden at 1185. Rather, it loses the right to the recapture period, and the defendant is entitled to immediate discharge. See id. at 1184; see also Lewis v. State, 357 So.2d 725 (Fla.1978).

The circuit court departed from the essential requirements of the law in failing to recognize that the present case falls within this category of cases. Although actions by both the State and the clerk’s office combined in this case, the facts nonetheless conspired to make the defendant unable to file a notice of expiration within five days of the date when the speedy trial time ran. He could not have known that he needed to file a notice of expiration, because the State failed to notify him when it finally did file charges. While neither the State nor the clerk’s office may have intended to mislead the defendant or conceal information from him, the fact remains that this is what happened.

Whether by design or by mistake, the defendant was lulled into believing that the charges against him had been dropped. After filing charges at the eleventh hour, the State did no more to pursue the case against the defendant until long after the speedy trial period had passed. In the meantime, through no fault of his own, the defendant was left unaware of the charges as the speedy trial period passed and for months afterward. He could hardly be expected to file a notice of speedy trial within five days under these circumstances. This is exactly what the Agee line of cases warns against.

Even though charges were filed before expiration of the speedy trial period, the State forfeited the right to avail itself of the recapture period under the law by failing to subsequently rearrest the defendant or otherwise notify him of the charges before the speedy trial period expired. “The State’s right to recapture must be understood as linked to the defendant’s ability to exercise the right to file a notice of expiration when the [speedy trial] period has run.” State v. McCullers, 932 So.2d 373, 375 (Fla. 2d DCA 2006). Despite the actual status of his case, the defendant in this case could only have concluded that the State had apparently decided not to prosecute the case, based on the limited and inaccurate information he had received.

Notifying a defendant that charges have been filed against him is essential, not only to his due process rights, but to his ability to exercise his speedy trial rights. The instant case illustrates this point vividly. In a similar case, the Third District warned of the possible consequences that could result if the notice of expiration and recapture provisions of the rule were rigidly applied in circumstances such as those before us:

An individual could be arrested and the State, for whatever reason, may “no action” the case. The State could soon thereafter file charges "within the speedy trial period and then, do nothing. The defendant, if he is not rearrested or notified in some manner, has no idea charges have been filed ... against him. Then, long after the speedy trial time has expired, the State can arrest the defendant and, if he files a motion for discharge, the State still has fifteen days to bring him to trial. Such a result is clearly disapproved of by Genden and Agee.

Cordero v. State, 686 So.2d 737, 738 (Fla. 3d DCA 1997). This is essentially what happened in the instant case.

We grant the petition, because the circuit court’s affirmance of the county court’s ruling was a departure from the essential requirements of law. The county court plainly failed to follow the principles established by the Agee line of cases in ruling that the defendant in this case was required to file a notice of expiration of speedy trial, where the State failed to notify him of the Lowe’s charges within the speedy trial period. To affirm this ruling was not mere error, but a departure from the essential requirements of the law, not only because the defendant’s due process rights were abridged, but also because the facts of the present case clearly bring it within the parameters of the Agee line of cases. The law in this area is clear and well established, and the circuit court should have recognized as much and reversed the county court’s ruling. Both the spirit and the intent of the rule would be defeated if the State were allowed to proceed on the charges after the defendant, through no fault of his own, was prevented from asserting his speedy trial rights. The circuit court’s affirmance of the county court’s ruling was “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93 (Fla.1983); see also Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla.1995); State v. Bock, 659 So.2d 1196 (Fla. 3d DCA 1995).

The petition is granted with directions to discharge the defendant without affording the State the benefit of the recapture period.

PADOVANO and POLSTON, JJ., concur; WOLF, J., concurs in result.

      . As our supreme court has observed, the purpose of the speedy trial rule is "to promote the efficient operation of the court system and to act as a stimulus to prosecutors to bring defendants to trial as soon as practicable, thus minimizing the hardships placed upon the accused persons awaiting trial.” Lewis v. State, 357 So.2d 725, 727 (Fla.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1066.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2007.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert Foster appeals his convictions for separate counts of sale and possession of cocaine. We affirm Foster’s conviction for sale because competent, substantial evidence supports it. We reverse the conviction for possession because no evidence, other than a police officer’s testimony that he found a baggy of cocaine on the ground near Foster after police officers swooped in to arrest him, supports the inference that he possessed the illicit drug, actually or constructively. See State v. Williams, 742 So.2d 509, 512 (Fla. 1st DCA 1999) (reciting commonly applied rule that “mere proximity to contraband, without more, is legally insufficient to prove possession.”); Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998) (“Mere proximity to contraband is not sufficient to establish constructive possession.”); Agee v. State, 522 So.2d 1044, 1046 (Fla. 2d DCA 1988) (same); see also Edwards v. State, 582 So.2d 1311, 1314 (Fla. 1st DCA 1988) (“Mere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer had probable cause to believe that the person or persons closest to the contraband possessed it.”).

On the teachings of cases where courts have reversed convictions for the possession of drugs found in proximity to their putative possessors, we reject the State’s contention that a crack pipe found in appellant’s pocket circumstantially proved he possessed the cocaine found on the ground. See Agee, 522 So.2d at 1046 (holding that evidence of defendant’s proximity to stash of heroin plus evidence of his flight from approaching police officers was “insufficient circumstantial evidence to establish [the defendant’s] constructive possession of the contraband”); Edwards, 532 So.2d at 1314 (holding that evidence of defendant’s proximity to baggy of cocaine plus his possession of several hundreds of dollars in rolled-up bills did not support probable cause for arrest on constructive possession theory). We liken the crack pipe in this case to the circumstantial evidence of guilt in the cases cited; under these circumstances, we cannot regard Foster’s possession of the crack pipe as sufficient circumstantial evidence that he possessed cocaine found on the ground near him.

AFFIRMED in part, REVERSED in part.

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


text:
    Victor M. MADRIGAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2667.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2007.
   PER CURIAM.

Victor Madrigal appeals an order summarily denying his motion to correct or modify sentence. See Fla. R.Crim. P. 3.800(c). We treat the motion as a timely filed petition for writ of certiorari. See Seward v. State, 912 So.2d 389, 390 (Fla. 2d DCA 2005). Based on our precedent, we grant the petition, quash the order, and remand to the postconviction court to consider the merits of Mr. Madrigal’s motion. See McCormick v. State, 961 So.2d 1099, 1102 (Fla. 2d DCA 2007); Cunniff v. State, 950 So.2d 1255, 1256 (Fla. 2d DCA 2007).

SALCINES, WALLACE, and LaROSE, JJ., concur.


author: CHUMBLEY, DOUGLAS J., Associate Judge.

text:
    REAL INVESTMENTS, LLC, Appellant, v. The OAKS GROUP, INC., etc., et al., Appellees.
    No. 4D06-3039.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Jamie Alan Sasson and Peter Ticktin of Ticktin & Rodriguez, P.A., Coconut Creek, and Carol Cobourne Asbury of Asbury & Associates, P.A., Boynton Beach, for appellant.
    Sheryl S. Natelson, Jeffrey A: Rynor and Pamela A. Chamberlin of Mitrani, Ry-nor & Adamsky, P.A., Miami, for appellee The Oaks Group, Inc.
   CHUMBLEY, DOUGLAS J., Associate Judge.

Appellant appeals the trial court’s order granting the Appellee’s motion for summary judgment as to Count I (Breach of Contract) and Count II (Specific Performance) of the complaint filed by the Appellant and granting Appellee’s motion for summary judgment as to all counts in the Amended Complaint filed by Appellant’s Assignors. Because we find there are genuine issues of material fact, we reverse.

The underlying action is based on an agreement for purchase and sale entered into between the Appellee/Seller, The Oaks Group, Inc., and two Buyers/Assignors, Eurohome di Soleil, LLC and Jose A. Martinez. The contract had an effective date of February 15, 2005 and concerned approximately four (4) acres of land. The sales price was $2.9 million. The contract provided a deposit of $25,000 which was to be paid within five (5) days of the date when the agreement was signed. It also required a second deposit of $265,000, but importantly, the contract was silent as to the date that deposit was to be paid. The $25,000 was paid, but the second deposit was never paid. The Appellee terminated the contract for failure to receive the second deposit, and the deal was never closed. Following Appellee’s termination of the contract, the Buyer/Assignor, Eurohome di Soleil, assigned all of its rights under the contract to the Appellant.

Appellee argues on appeal that summary judgment was proper because there was no genuine issue of material fact that Appellee did not breach the contract by terminating the contract and refusing to close. Appellee also argues that summary judgment was proper on the count for specific performance in that there was no genuine issue of material fact that the Appellant and the Buyers were never ready, willing, or able to perform the contract. However, we disagree.

Summary judgment is appropriate where, as a matter of law, it is apparent from the pleading, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. See, e.g., The Florida Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). We believe that genuine issues of material fact exist on both the issue of breach by the Appel-lee/Seller and on the issue of Appellant’s entitlement to specific performance. By way of example, we set forth some of the disputed issues of material fact below.

Although Appellee contends there is no dispute that there was a due date for the payment of the second deposit set either by the contract or by subsequent correspondence, the record reveals that there is sworn testimony by Eurohome’s principal, Jose Garcia, and by Buyer, Jose Martinez, that they did not pay the second deposit because they did not believe there was a due date for the second deposit. This testimony is sufficient to create a genuine issue of material fact as to whether Appel-lee was entitled to terminate the contract on the basis of non-payment of the second deposit. Thus, it was error to enter summary judgment of those claims.

Further, with regard to whether the Appellant or the Buyers were ever ready, willing and able to perform the contract, there is deposition testimony from Jose Garcia that the second deposit would have been paid had there been a due date set forth in the contract. In addition, there was testimony from Appellant’s president, Alex Gonzalez, that the Appellant had access to sufficient funds to close on the property. This testimony is sufficient to create a genuine issue of material fact on the Appellant’s and the Buyers’ ability to perform the contract. Thus, it was error to enter summary judgment on the specific performance claims.

For the above reasons, we reverse the summary judgment entered below and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and GROSS, JJ., concur.

      . The record is strangely silent as to reasons why the trial court granted summary judgment on the Buyers’ claims of negligent misrepresentation and fraud in the inducement. The briefs also fail to raise any arguments with regard to those claims. As the questions of material fact discussed above may be relevant to those claims, it was error to enter summary judgment on those counts as well.


text:
    Jarred FALKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3637.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Alvarez v. State, 827 So.2d 269 (Fla. 4th DCA 2002).

STONE, MAY, JJ., and TUTER, JACK, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Gerald BAVERO, Appellee.
    No. 4D06-4662.
    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.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. MacGorzata BURDA, Appellee.
    No. 4D06-4665.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Johnny DEVEREAUX, Appellee.
    No. 4D06-4674.
    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.
    Jan Peter Weiss, Lake Worth, for appel-lee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Stacey L. DOCKRELL, Appellee.
    No. 4D06-4675.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Hugo Richard DONK, Appellee.
    No. 4D06-4676.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Abobaker M. ELFADI, Appellee.
    No. 4D06-4677.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Louis FIAMMETTA, Appellee.
    No. 4D06-4679.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Kathleen M. FRAZIER, Appellee.
    No. 4D06-4680.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


author: KLEIN, J.

text:
    STATE of Florida, Appellant, v. Michael BUTTOLPH, Appellee.
    No. 4D06-4666.
    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.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Ft. Lauderdale, for appellee.
   KLEIN, J.

The state appeals a county court non-final order in a DUI case to the effect that the annual inspection reports of breath testing instruments are testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The court certified the question to this court as one of great public importance. We have discretionary jurisdiction to review such an order. State v. Ratner, 948 So.2d 700 (Fla.2007).

Shortly after the state’s initial brief was filed, we held in Pflieger v. State, 952 So.2d 1251 (Fla. 4th DCA 2007), that these annual inspection reports are nontestimonial under Crawford, which is contrary to the trial court’s ruling. As this issue has been resolved by Pflieger, we need not further address the certified question.

Because this case, and numerous others on appeal, raising the same certified question, will be remanded for trial, we address an issue raised here, as well as below, which was not reached in the trial court. That issue is whether it is always necessary to prove the annual inspection. We hold that it is necessary only where the annual inspection was the most recent inspection. § 316.1934(5) provides:

(5) An affidavit containing the results of any test of a person’s blood or breath to determine its alcoholic content, as authorized by s. 316.1932 or s. 316.1933, is admissible in evidence under the exception to the hearsay rule in s. 90.803(8) for public records and reports. Such affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine the alcohol content of the blood or breath if the affidavit discloses:
(a) The type of test administered and the procedure followed;
(b) The time of the collection of the blood or breath sample analyzed;
(c) The numerical results of the test indicating the alcohol content of the blood or breath;
(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test, and
(e) If the test was administered by means of 'a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.

(emphasis supplied.)

The state argues that the “most recent required maintenance” is the monthly inspection, citing Florida Administrative Code, section 11D-8.006(1) which provides that: “evidentiary breath test instruments shall be inspected by an agency inspector at least once a calendar month.” Defendant relies on section 11D-8.004(2), which provides that: “registered breath test instruments shall be inspected by [FDLE] at least once each calendar year ... The inspection validates the instrument’s approval for evidentiary use.”

Returning to section 316.1934(5), Florida Statutes, which specifies the “most recent required maintenance,” we conclude that the most recent could be either the monthly, or the annual inspection, if the annual was the most recent. It does not, as defendant argues, require the state to show both.

We accordingly remand for further proceedings consistent with this opinion.

POLEN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Ever O. GALICIA, Appellee.
    No. 4D06-4681.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Frank CAVALERI, Appellee.
    No. 4D06-4667.
    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.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Ft. Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael Phillip CORRAO, Appellee.
    No. 4D06-4670.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Delores CRUZ, Appellee.
    No. 4D06-4672.
    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., for appellant.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. John Ramond COULTON, Appellee.
    No. 4D06-4671.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Patricia L. DEBLAKER, Appellee.
    No. 4D06-4673.
    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, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jose GOMEZ, Appellee.
    No. 4D06-4687.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and' MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jill A. GINGS, Appellee.
    No. 4D06-4685.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellant.
    Carlos A. Canet of the Law Office of Carlos A. Canet, Ft. Lauderdale, for ap-pellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ„ concur.


text:
    STATE of Florida, Appellant, v. Jose GONZALEZ, Appellee.
    No. 4D06-4688.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Amber Lucille HEISLER, Appellee.
    No. 4D06-4689.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Ovidio HERNANDEZ, Appellee.
    No. 4D06-4691.
    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.
    Tara G. Intriago, Ft. Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Ross E. JANSEN, Appellee.
    No. 4D06-4692.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jose LEIVA, Appellee.
    No. 4D06-4696.
    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.
    Tara G. Intriago, Ft. Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Carlos Mendez GARCIA, Appellee.
    No. 4D06-4682.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jose L. GARCIA, Appellee.
    No. 4D06-4683.
    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.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Ft. Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Matthew KREKSTEIN, Appellee.
    No. 4D06-4992.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Mauricio GARCIA, Appellee.
    No. 4D06-4684.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Glen G. GRECH, Appellee.
    No. 4D06-4686.
    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.
    No brief filed for appellee.
   PER CURIAM.

Reversed. State v. Buttolph, No. 4D06-4666, 969 So.2d 1209, 2007 WL 4322246 (Fla. 4th DCA Dec.12, 2007).

POLEN, KLEIN and MAY, JJ., concur.


text:
    Jessie DeWitt LITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2522.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.
    James Marion Moorman, Public Defender, and Isaac R. Ruiz-Carus, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Jessie DeWitt Little appeals a judgment for seven criminal offenses and the sentences imposed thereon. The record on appeal included discrepancies regarding the sentences intended or imposed for counts six and seven. After notice to the parties, this court relinquished jurisdiction to the circuit court to permit the circuit court to clarify the sentences imposed. The circuit court entered an order clarifying the sentencing and directing certain changes to the sentencing documents. Mr. Little has not challenged this order, and the clarified sentences are legal and appropriate. On remand, to avoid any confusion about the sentences, the circuit court should enter amended sentencing documents consistent with the July 11, 2007, clarification order.

Affirmed with instructions.

ALTENBERND, CASANUEVA, and SALCINES, JJ., Concur.


author: STRINGER, Judge.

text:
    Steven Douglas MASENGALE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5363.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.

      Thomas Matthew McLaughlin and Lynda B. Barack of Barack & McLaughlin, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Steven Masengale challenges his conviction and sentence for aggravated battery on numerous grounds. We affirm Masen-gale’s conviction and sentence without comment. However, on the State’s concession of error in response to Masengale’s motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), we strike a fine and a cost that were improperly imposed and remand for entry of a corrected judgment for fines and costs.

The written judgment for fines and costs entered by the trial court includes a $175 fine under section 775.083, Florida Statutes (2005). Fines under section 775.083 are discretionary and must be orally pronounced at sentencing. Dadds v. State, 946 So.2d 1129, 1130 (Fla. 2d DCA 2006); Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995). In this case, however, the trial court did not orally pronounce this fine at the sentencing hearing. Therefore, this fine must be stricken. Dadds, 946 So.2d at 1130.

The written judgment for fines and costs also includes a $20 mandatory cost for the Crime Stoppers Trust Fund pursuant to section 938.06, Florida Statutes (2005). Section 938.06(1) authorizes this cost as “an additional surcharge” to “any fine prescribed by law.” Here, because the $175 fine was not properly imposed, the trial court could not impose the additional $20 surcharge under section 938.06. Dadds, 946 So.2d at 1130; Kimball v. State, 933 So.2d 1285, 1287 (Fla. 2d DCA 2006). Therefore, this cost must be stricken as well.

Affirmed but remanded for entry of a corrected judgment for fines and costs.

WHATLEY and CASANUEVA, JJ„ Concur.


author: LEWIS, J.

text:
    Matt ECKHARDT, Brandon McArthur, Brian LeClerc and Valerie Bullock, Appellants, v. 424 HINTZE MANAGEMENT, LLC, Appellee.
    No. 1D07-56.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.

      Timothy W. Weber of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellants.
    John F. Hayter, Gainesville, for Appel-lee.
   LEWIS, J.

Matt Eckhardt, Brandon McArthur, Brian LeClerc, and Valerie Bullock (“the tenants”) seek review of an award of attorneys’ fees to 424 Hintze Management, LLC (“the landlord”). The tenants contend the trial court erred by failing to reduce the lodestar figure based on the landlord’s limited recovery, and by applying a contingency multiplier to the lodestar figure without any evidence that the multiplier was necessary to enable the landlord to secure competent counsel. We agree, and accordingly, reverse the Order Awarding Attorney Fees and Costs and remand with instructions for the trial court to reduce the amount of the attorneys’ fees award consistent with this opinion.

The landlord filed suit against the tenants seeking damages in the amount of $17,716.37 for the alleged breach of a residential lease and accompanying personal guarantee. At the time of filing the action, the landlord was represented by attorney John Hayter. The tenants counterclaimed, alleging, among other things, that the landlord retook possession of the property but failed to make a good faith effort to relet the premises, thereby failing to mitigate its damages. The case was set for a jury trial. By the time of the trial, two additional attorneys, Brent Siegel and Charles Hughes, had joined Hayter to assist in the landlord’s representation. After a two-day trial, the jury rendered a verdict for the landlord but determined that the landlord had failed to mitigate its damages because it did not make a good-faith effort to relet the premises. The jury awarded the landlord $4,250.00 in damages.

The landlord filed a Motion to Tax Attorneys’ Fees and Costs, and the trial court conducted an evidentiary hearing. At the hearing, Hughes testified that this case arose out of a landlord-tenant dispute where the tenants had failed to abide by the terms of their lease, and that the only issue pending was whether the tenants gave proper notice prior to vacating the premises. Hughes testified that the only novel or unique aspect of the case was that the tenants had brought a counterclaim. However, Hughes conceded that it would not be out of the ordinary for a tenant to bring a counterclaim in a landlord-tenant dispute.

Hayter testified that he was hired by the landlord to collect on a' lease. He testified that he had initially requested the landlord to pay an hourly fee, but that the landlord could not afford the hourly fee so they entered into a contingency fee agreement. Hayter testified that he was leery about taking the case, but he ultimately chose to take the case based on the potential of receiving a contingency multiplier on his fees. Hayter argued that it would be error to reduce his fees solely because the amount in controversy was relatively low, and that a contingency multiplier should be applied to his and his co-counsels’ fees.

Each side also presented expert testimony. The landlord’s attorney-fee expert testified that a contingency risk multiplier was appropriate in-this case. He testified that he personally would have taken this case only on the basis of an hourly fee arrangement. The landlord’s expert admitted that this case did not involve particularly novel issues and that it was unusual for a landlord-tenant dispute to result in a jury trial. He further testified that Hay-ter had told him that the landlord had no money to pay an hourly fee. The tenants’ fee expert testified that, based on the discrepancy between the jury’s award of $4,250.00 and the original claim of over $17,000.00, the landlord’s attorneys’ fees should be reduced from the lodestar figure.

In its order awarding attorneys’ fees, the trial court multiplied the seventy-two hours Hayter worked as the landlord’s lead counsel by $250.00 per hour. The court found that Siegel served as co-counsel at a rate of $250.00 per hour for 2.17 hours and Hughes served as co-counsel at a rate of $175.00 per hour for 3.5 hours. Accordingly, the resulting lodestar amount of attorneys’ fees was $22,925.00. The court found that application of a contingency risk multiplier to the lodestar figure was warranted based on the following findings:

a. Mr. Hayter’s fee arrangement with his client was purely contingent due to his client’s inability to pay hourly fees at the time this matter was undertaken;
b. Mr. Hayter was unable to effectively reduce the risk of nonpayment of his fees in this case in any way;
c. The evidence presented showed there were probably no attorneys with comparable experience and ability other than Mr. Hayter in the relevant market who would have taken this case on a contingent basis;
d.. The plaintiff in this matter prevailed on the significant issues tried before the court: Plaintiff made a substantial recovery, successfully defeated the defendant’s claims for general and specific damages and, finally, by doing so, completely avoided an adverse attorneys (sic) fee claim;
e. Mr. Hayter testified that the potential for application of a multiplier was a pivotal factor in his decision to undertake the matter for purposes of litigation.

The court further found that the landlord’s likelihood of success at the onset of the case was approximately even, warranting a multiplier of 1.5 to 2.0. The trial court applied a 1.5 contingency risk multiplier to the lodestar figure, equaling a fee award of $34,387.50. This appeal followed.

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985), the supreme court adopted the federal lodestar approach for calculating attorneys’ fees, which requires the court to multiply the reasonable number of hours expended by a reasonable hourly rate to reach the lodestar figure. In Rowe, the supreme court held that courts should then consider'the following factors‘to determine whether to increase or decrease the-lodestar amount:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent.

Id. at 1150 n. 6. When a trial court determines whether to increase or decrease the lodestar, it “must'make specific findings concerning ... the appropriateness of any reduction or enhancement factors.” Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 928 So.2d 495, 498 (Fla. 2d DCA 2006). A court must reduce an attorney fee award from the lodestar amount when the prevailing party achieves only limited success. Bd. of Regents v. Winters, 918 So.2d 313, 314 (Fla. 2d DCA 2006); see also State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 63-64 (Fla.1995) (reversing an award of attorneys’ fees and remanding for reduction and recalculation when the prevailing party’s recovery was reduced on appeal); Norman v. Hous. Auth., 836 F.2d 1292, 1302 (11th Cir.1988). “[T]he court should indicate that it has considered the relationship between the amount of fee awarded and the extent of success.” Winters, 918 So.2d at 315.

In this case, after the trial court calculated the lodestar figure, it failed to adjust the lodestar figure based on the amount in controversy, the results obtained, and the other Rowe factors. The trial court awarded the landlord $34,387.50 in fees even though there was only $17,716.37 in controversy, and the jury awarded the landlord only $4,250.00. Because the landlord’s success at trial was limited “in comparison to the scope of the litigation as a whole,” Norman, 836 F.2d at 1302, the trial court erred by failing to reduce the lodestar figure. The fact that this case was not novel or complex also supports a downward reduction of the lodestar. This was a fairly unremarkable landlord-tenant case involving a dispute over unpaid rent. Therefore, the trial court reversibly erred by failing to reduce the attorneys’ fees in accordance with the Rowe factors.

The tenants also contend that the trial court erred by applying a contingency risk multiplier to the landlord’s award of attorneys’ fees. We agree. The Florida Supreme Court first introduced the concept of a fee multiplier in Rowe, but refined its application in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). In Quanstrom, the court stated that in contract cases,

[T]rial court[s] should consider the following factors in determining whether a multiplier is necessary: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Evidence of these factors must be present to justify the utilization of a multiplier.

Id. at 834. In later cases, courts have focused on the ability to obtain competent counsel when determining whether a multiplier is necessary and appropriate. See e.g., Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 411 (Fla.1999) (holding that “[a] primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not otherwise afford it”). In Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032 (Fla. 5th DCA 2007), the court reversed the application of a multiplier to the fee award, finding that because the client never testified at the fee hearing, there was “nothing to suggest that he had any difficulty obtaining competent counsel.”

Competent substantial evidence must exist to support an application of a contingency risk multiplier. State Farm Mut. Auto. Ins. Co. v. Cedolia, 571 So.2d 1386, 1387 (Fla. 4th DCA 1990). Here, the record does not contain competent substantial evidence to support the application of a contingency multiplier. Because the landlord did not testify at the hearing, there was no evidence to suggest that the landlord had difficulty securing competent counsel. Further, there was no evidence that the relevant market of landlords were unable to secure competent representation without the application of a contingency multiplier. Finally, as discussed above, this case was not complex, and the landlord achieved limited recovery. Thus, the Rowe factors weigh against application of a contingency multiplier, and the trial court reversibly erred in applying the multiplier.

Having concluded that the trial court reversibly erred as to both of the issues raised, we REVERSE and REMAND with instructions for the trial court to reduce the amount of the attorneys’ fees award consistent with this opinion.

DAVIS and ROBERTS, JJ., concur.


text:
    Alvin THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5237.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Joshua R. Heller and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Appel-lee.
   PER CURIAM.

This is an appeal of a judgment and sentence for discharging a firearm from a vehicle within 1000 feet of a person, in violation of section 790.15(2), Florida Statutes (2005). Appellant contends the trial court committed reversible error in two respects: (1) by failing to instruct the jury on a lesser-included offense, and (2) by sentencing him without renewing the offer of appointed counsel and without securing a waiver of counsel.

Appellant did not request an instruction on criminal mischief as a lesser-included offense and did not object to the instructions as given. Accordingly, the trial court’s failure to instruct on a lesser-included offense is not preserved for review. McKinney v. State, 579 So.2d 80 (Fla.1991).

Florida Rule of Criminal Procedure 3.111(d)(5) clearly mandates that the trial court renew its offer to appoint counsel at the sentencing stage of the trial. Because the trial court did not inquire as to whether the appellant desired counsel at the sentencing hearing, we are compelled to vacate the sentence imposed and remand this cause to the trial court for resentenc-ing, prior to which an offer of assistance of counsel shall be made by the trial judge. Billions v. State, 399 So.2d 1086, 1087 (Fla. 1st DCA 1981).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for proceedings consistent with this opinion.

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


text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3930.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Sharon L. Ray, Senior Attorney, Ma-rianna, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner seeks certiorari review of an amended order by which the trial court instructed the petitioner to transfer an incompetent criminal defendant committed to its custody and care from one particular facility to another. Although permitted to make a non-binding recommendation regarding placement, the trial court was without authority to mandate this transfer. See Department of Children and Families v. Morrison, 727 So.2d 404 (Fla. 3d DCA), rev. denied, 741 So.2d 1136 (Fla.1999); accord Department of Children and Families v. Blue, 951 So.2d 18 (Fla. 4th DCA 2007); Department of Children and Families v. Harter, 861 So.2d 1274 (Fla. 5th DCA 2003); Department of Children and Family Services v. M.H., 830 So.2d 849 (Fla. 2d DCA 2002). Accordingly, we grant the petition for writ of certiorari and quash the order under review insofar as it mandates the aforementioned transfer.

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


text:
    R.Z., Father of Z.Z. And C.Z., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-4623.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Kimberly F. Pell, Panama City, for Appellant.
    No Appearance for Department of Children and Families, Ama N. Appiah, Orlando, for Guardian ad Litem.
   PER CURIAM.

This appeal, brought by the father in this dependency case, was not filed within 30 days of the date of rendition of the Order of Adjudication, entered December 1, 2006. Therefore, the appellant’s notice of appeal did not timely invoke this Court’s jurisdiction, see Fla. R.App. P. 9.110(b). Accordingly, this appeal is hereby dismissed for lack of jurisdiction, without prejudice to the appellant’s right to seek relief in the trial court, see In the Interest of E.H., 609 So.2d 1289 (Fla.1992); A.G. v. Dep’t of Children & Families, 846 So.2d 622 (Fla. 4th DCA 2003); Fla. R. Juv. P. 8.270(b), or to bring a timely appeal from the final order of disposition, A.G. v. Dep’t of Children & Family Servs., 731 So.2d 1260 (Fla.1999).

DISMISSED.

ALLEN, DAVIS, and BENTON, JJ„ concur.


text:
    CITY OF KISSIMMEE and Preferred Governmental Claims Solutions, Petitioners, v. Mark WEIMER, Respondent.
    No. 1D07-4694.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Barbara A. Eagan and Michael Brous-sard of Broussard, Cullen, DeGailer & Ea-gan, P.A., Orlando, for Petitioners.
    Mark Weimer, pro se, Respondent.
   PER CURIAM.

We find that the motion for disqualification of the Judge of Compensation Claims was improvidently granted as it was both untimely and did not state facts which would cause a reasonably prudent person to fear that he or she would not get a fair or impartial hearing. Accordingly, the petition for writ of mandamus is granted and the cause is remanded to the Judge of Compensation Claims with directions to withdraw the order of recusal and proceed to a disposition on the merits of the petition for benefits.

PETITION GRANTED.

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


text:
    Antoine MEDDLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3793.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The convictions and sentences are AFFIRMED. The case is REMANDED to the trial court for correction of the scrivener’s error in the judgment by deleting references to “using mask or hood during commission of a crime.”

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


text:
    Michael D. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1229.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, and Michael D. Baker, Raiford, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, GROSS and TAYLOR, JJ., concur.


author: WEIMER, Justice.

text:
    STATE of Louisiana v. Jack KING.
    No. 2006-K-1903.
    Supreme Court of Louisiana.
    Oct. 16, 2007.
    Rehearing Denied Jan. 7, 2008.
    Charles C. Foti, Jr., Attorney General, Paul Carmouche, District Attorney, Catherine Marion Estopinal, Assistant District Attorney, for applicant.
    Ellis & Ellis, Carey J. Ellis, III, Alexandria, Louisiana Appellate Project, Sherry Watters, New Orleans, for respondent.
   WEIMER, Justice.

17Writ was granted in this matter to resolve a split in the circuits as to whether the five-year sentence enhancement provision of LSA-R.S. 14:64.3 should be imposed upon a defendant convicted of armed robbery with a firearm pursuant to LSA-R.S. 14:64 when the defendant is adjudicated a habitual offender and sentenced under the provisions of LSA-R.S. 15:529.1.

| ¡,For reasons that follow, we vacate the portion of the court of appeal opinion, amending defendant’s sentence, which deleted the additional five years imposed by the trial court pursuant to LSA-R.S. 14:64.3. Thus, defendant’s sentence of 198 years is to be followed by a consecutive sentence of five years.

FACTS AND PROCEDURAL BACKGROUND

The facts are not in dispute. On May 18, 2004, the defendant entered the customer line at a Hibernia Bank branch in Shreveport, Louisiana. He handed the teller a pillowcase, displayed a portion of his gun, and demanded money. The teller placed at least $5,000 into the pillowcase along with a dye pack which exploded after the defendant left the bank. A customer chased the defendant, forced him to the ground, and held him until the police arrived.

Defendant was charged with one count of armed robbery with a firearm pursuant to LSA-R.S. 14:64 and LSA-R.S. 14:64.3. At trial, defendant testified and admitted the facts of the crime. A unanimous jury found the defendant, Jack King, guilty as charged of armed robbery using a firearm.

|sThe state subsequently filed a habitual offender bill of information seeking to have defendant declared a second felony offender. Defendant filed a pro se motion to quash. Following a hearing, the trial court found King to be a second felony offender and sentenced him to 203 years at hard labor with credit for time served. The trial court denied the motion to reconsider sentence.

King appealed, arguing the State failed to comply with the requirements necessary to adjudicate him a second felony offender under the habitual offender law and the trial court erred in imposing an excessive sentence.

The appellate court affirmed King’s conviction and concluded the sentence was not constitutionally excessive. However, the appellate court found the sentence illegal in that the trial court imposed the five-year enhanced penalty pursuant to LSA-R.S. 14:64.3 in addition to the maximum sentence allowable under the habitual offender provision. State v. King, 41,083 (La.App. 2 Cir. 6/28/06), 935 So.2d 354.

Citing State v. White, 39,634 (La.App. 2 Cir. 6/16/05), 907 So.2d 180, writ denied, 05-2097 (La.3/10/06), 925 So.2d. 510, the court reasoned that a sentence under the habitual offender law effectively replaces the sentence for the underlying crime. The court further reasoned that once the State chose to proceed under the habitual offender law to adjudicate King a second felony offender, he could only be sentenced pursuant to the habitual offender law. Finding the imposition of the additional five years under LSA-R.S. 14:64.3 resulted in an illegal sentence, the appellate court amended the sentence to delete the additional five years.

Additionally, the court of appeal noted that the sentence was illegally lenient in that the trial court failed to order the sentence be served without benefit of | ¿probation or suspension of sentence as required by LSA-R.S. 15:529.1(G). The trial court’s failure to state that the sentence will be served without benefit is automatically corrected by operation of law. LSA-R.S. 15:301.1. Thus, the court reasoned, King’s 198-year sentence is to be served without the benefit of probation or suspension of sentence.

The State’s writ application was granted in this matter to address the split in the circuits as to whether the additional five-year sentence provided by LSA-R.S. 14:64.3 could be imposed when the defendant is sentenced pursuant to the habitual offender law. State v. King, 06-1903 (La.4/27/07), 955 So.2d 670.

DISCUSSION

The State contends the court of appeal erred by amending defendant’s sentence to delete the five-year sentencing enhancement provision imposed by the trial court pursuant to LSA-R.S. 14:64.3. The State further argues the White decision relied on by the second circuit conflicts with decisions of other circuits, specifically State v. Bonit, 05-0795 (La.App.1Cir.2/10/06), 928 So.2d 633, writ denied, 06-1211 (La.3/16/07), 952 So.2d 688, and State v. Lewis, 03-1234 (La.App. 4 Cir. 6/2/04) 876 So.2d 912, writ denied, 04-1855 (La.11/24/04), 888 So.2d 229. The State contends Judge Williams’ dissent in White is correct and the trial court’s sentence should be affirmed.

[fiThe majority in White found error patent regarding the sentence imposed. The court reasoned the applicable sentence under the habitual offender law effectively replaces the sentence for the underlying crime under LSA-R.S 14:64 and 14:64.3. The court found the imposition of the additional five years under LSA-R.S. 14:64.3 was erroneous and resulted in an illegal sentence. The court amended the sentence to delete the additional five years. White, 39,634 at 6, 907 So.2d at 183.

In dissent, Judge Williams noted the lack of authority cited by the majority to support its conclusion that the five-year penalty is “replaced” by a habitual offender sentence. Citing Lewis and State v. Williams, 34,369 (La.App. 2 Cir. 2/28/01), 781 So.2d 673, Judge Williams further noted “our courts have affirmed the district courts’ imposition of the five-year penalty in addition to a habitual offender sentence.” White, 39,634 at 1, 907 So.2d at 184.

In Bonit, the first circuit declined to follow the reasoning of the majority in White. The court noted it is not a crime to be a habitual offender and the purpose of the habitual offender statute is to increase the sentence for a recidivist. Following a finding that a defendant is a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. Because the dangerous weapon used in the commission of the armed robbery was a firearm, the court found that Bonit violated two statutes, LSA-R.S. 14:64 and LSA-R.S. 14:64.3. Therefore, the court reasoned the defendant’s sentence was subject to an additional period of five years without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under the provisions of LSA-R.S. 14:64 as enhanced by the habitual offender law. Bonit, 05-0795 at 13-15, 928 So.2d at 641-643.

In Lewis, the fourth circuit affirmed defendant’s convictions and sentences. Defendant was charged with one count of attempted armed robbery and one count of attempted second degree murder in connection with crimes perpetrated against one individual. He was also charged with one count of armed robbery and a second count of attempted second degree murder in connection with crimes perpetrated against another individual. Lewis was tried and found guilty on all counts charged. He was found to be a second felony offender in connection with his armed robbery conviction. The State also filed a motion to invoke the firearm sentencing provisions of LSA-R.S. 14:64.3. The trial court sentenced defendant to 198 years at hard labor on the conviction of armed robbery as a second felony offender under LSA-R.S. 15:529.1 and added a five-year sentence at hard labor under the provisions of LSA-R.S. 14:64.3 because a firearm was used in connection with the crimes of armed robbery and attempted armed robbery. The five-year sentence was to be served consecutively to the one hundred ninety-eight year sentence. Defendant appealed the severity of the sentences contending imprisonment for 203 years was the equivalent of a life sentence. The court of appeal found the trial judge had not abused his discretion in imposing a sentence of 203 years and affirmed the sentence imposed. Lewis, 03-1234 at 18-19, 876 So.2d at 922.

Review of the statute in question indicates the legislature added LSA-R.S. 14:64.3 in 1999 to provide imprisonment for “an additional period of five years” for an offender convicted of the crime of armed robbery when the dangerous weapon used in commission of the crime is a firearm. The statute provided the penalty imposed “shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.” (Emphasis added.)

In 2003, the legislature amended the statute to .add attempted armed robbery when the dangerous weapon used in the commission of the crime is a firearm. The statute provided an additional penalty of five years “shall be served consecutively to the sentence imposed under the provisions of R.S. 14:27 and 64.”

Then, in 2006, the legislature amended the statute to provide the sentence is to be served “at hard labor.”

The addition of the penalty for use of a firearm in the commission of an armed robbery, as well as the subsequent amendments to the statute, indicates the legislature’s intent to enhance the penalty when a firearm is used in the commission of the armed robbery or attempted armed robbery by providing the additional five-year penalty to be served consecutively to the sentence imposed under the provisions of LSA-R.S. 14:64.

Penalties provided by LSA-R.S. 14:64.3 and LSA-R.S. 15:529.1 are clearly directed at deterring different criminal behavior. Louisiana Revised Statutes 14:64.3 punishes an offender for increasing the danger of the already high-risk offenses of attempted armed robbery or armed robbery by use of a firearm. The potential additional five-year sentence addresses the separate and distinct behavior of using a firearm as opposed to using some other dangerous weapon (for example, a knife). The statute specifically states the use of a firearm shall result in imprisonment “for an additional period of five years” and “shall be served consecutively.” Louisiana Revised Statute 15:529.1 punishes an offender’s persistent and felonious defiance of the state’s criminal laws. This court has consistently held that the purpose of the habitual offender law is to deter and punish recidivism. State v. Johnson, 03-2993, p. 18 (La.10/19/04), 884 So.2d 568, 579; State v. Everett, 2000-2998, p. 7 (La.5/14/02), 816 So.2d 1272, 1276; State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677. This court has long recognized that statutes providing for increased punishment for repeat offenders serve a valid state interest in protecting society “by attempting to remove recidivists from its midst.” State v. Dorthey, 623 So.2d 1276, 1278 (La.1993).

We agree with the position taken by the first and fourth circuits and find that a defendant convicted of armed robbery and sentenced under the habitual offender law can be sentenced to an additional five years under LSA-R.S. 14:64.3 when the dangerous weapon used in commission of the armed robbery is a firearm.

During the sentencing proceeding in this matter, the trial judge made the following observation:

Certainly it is established without any doubt that Mr. King has earned the maximum possible penalty which I can impose in this case. Again, I note the age of Mr. King, and I note the maximum possible penalty as being, of course, beyond the life span of any person.
However, it is just so clear to me that with Mr. King’s history of criminality over the past four decades, I’m led to the conclusion that a lesser sentence than the one I’m going to impose would deprecate the seriousness of this crime.

We find the trial court was correct in sentencing the defendant to an additional five-year term for violation of LSA-R.S. 14:64.3. However, we note at the time of the commission of the crime, the statute did not include the proviso “at hard labor.” Thus, the defendant’s sentence should be 198 years at hard labor plus an additional 5 years to be served consecutively.

CONCLUSION

|flFor the foregoing reasons, defendant’s sentence of 203 years is amended to reflect that 198 years are to be served at hard labor followed by an additional five-year term to be served consecutively. The ruling of the court of appeal is vacated. Defendant’s sentence is reinstated as amended by this court.

COURT OF APPEAL DECISION VACATED; SENTENCE AS AMENDED, REINSTATED.

JOHNSON, J., concurs.

      . LSA-R.S. 14:64.3 currently provides, in part:
      A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

      . LSA-R.S. 14:64 provides:
      A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

      .LSA-R.S. 15:529.1 provides, in part:
      A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children's Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      (a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

      . Though the court's resolution of this matter will have no practical effect on the current defendant, the decision will serve to resolve a split in the circuits and provide guidance for future cases. At the time defendant committed the offense, LSA-R.S. 14:64.3 provided "the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence.” By 2006 La. Acts No. 208, the legislature added the provision that an offender must serve the additional five years at hard labor.

      . In White, the State did not file a cross application for writ of certiorari contesting the second circuit's decision to delete the five year enhancement portion; therefore, when the case arrived in this court on defendant’s writ application, the present issue was not before this court.

      . For the sake of completeness, we note the first and second circuits decided cases involving application of LSA-R.S. 14:64.3 after this matter was decided in the court of appeal. The second circuit in State v. Smith, 40,894 (La.App. 2 Cir. 7/26/06), 936 So.2d 255, writ not considered, 06-2179 (La.4/5/07), 954 So.2d 131, relying on White, on an error patent review, deleted the additional five years for violating LSA-R.S. 14:64.3 from defendant’s sentence.
      The first circuit in an unpublished opinion, State v. Anderson, 06-0590 (La.App. 1 Cir. 11/3/06) 2006 WL 3110872, amended the firearm enhancement sentence to delete the requirement that it be served at hard labor, and as amended, affirmed the five-year penalty.

      . In State v. Williams, the court affirmed defendant’s conviction and sentence of sixty years as a habitual offender plus the mandatory consecutive term of five years provided by LSA-R.S. 14:6.4.3.