author: THOMPSON, J.

text:
    Martha HINKLEY, d/b/a My Place Realty, Appellant, v. GOULD, COOKSEY, FENNELL, O’NEILL, MARINE, CARTER & HAFNER, P.A., Appellee.
    No. 5D06-4245.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      Michael Anthony Faro of Michael Anthony Faro, P.A., Cocoa Beach, for Appellant.
    Jason L. Odom of Gould, Cooksey, Fen-nell, O’Neill, Marine, Carter & Hafner, P.A., Vero Beach, for Appellee.
   THOMPSON, J.

Martha Hinkley, the broker with My Place Realty, Inc., challenges the circuit court’s award of attorney’s fees and costs to Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A. (“Gould-Cook-sey”), the closing agent under a contract for the sale and purchase of real estate. Gould-Cooksey interpleaded the $72,600 brokerage commission after a dispute arose between My Place Realty and its licensed real estate sales associate, Ginger Meyer, who terminated employment prior to the closing. Because the trial court erred in awarding attorney’s fees and costs to Gould-Cooksey under the real estate purchase contract to which the broker and its sales associate were not parties, we reverse.

The commission dispute prompted Gould-Cooksey to interplead the brokerage commission and request an award of attorney’s fees for filing the complaint for interpleader. The court’s order approved the interpleader proceeding, directed that the funds be placed in the registry of the court, and awarded Gould-Cooksey $5,387.12 in fees and costs.

Typically, the appellate court applies an abuse of discretion standard in reviewing a trial court’s award of attorney’s fees, usually with regard to the amount of an award rather than the actual entitlement to an award. DiStefano Constr., Inc. v. Fidelity & Deposit Co., 597 So.2d 248, 250 (Fla.1992). However, when entitlement to attorney’s fees is based on the interpretation of contractual provisions, see Gibbs Construction Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000), or a statute, see Allstate Insurance Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006), as a pure matter of law, the appellate court undertakes a de novo review.

In this case, the appellant contests only the entitlement to fees and does not argue that the court abused its discretion in determining the amount of the award. Hence the de novo standard applies.

Hinkley argues that néither she, d/b/a My Place Realty, nor Meyer are parties to the contract relied upon by Gould-Cooksey for the court’s authority to award fees. Hinkley is correct that the trial court erred in awarding attorney’s fees and costs from the interpleaded fund. As the court explained in Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So.2d 959, 960 (Fla. 3d DCA 1981), an agreement gives those who are parties to it a clear and unequivocal right to the recovery of both attorney’s fees and costs. (Emphasis added.)

Gould-Cooksey timely filed a motion for attorney’s fees based upon paragraph 15, “Escrow Agent,” of the contract for sale and purchase of real estate. The broker and its sales associate, however, are not parties to that agreement, and, therefore, this authority does not support the trial court’s award of attorney’s fees to the escrow agent. Section 475.711, Florida Statutes (2006), addresses the interpleader of reserved proceeds in the court registry, discharge of the closing agent from further liability, and costs and reasonable attorney’s fees incurred by the closing agent. The escrow agent did not cite this statute for an award of attorney’s fees and costs to the interpleader perhaps because the statute specifically addresses commission entitlement vis-a-vis the owner and broker. That factual scenario is not present here.

Because My Place Realty and Meyer are not parties to the real estate purchase contract, its provision for attorney’s fees in favor of the interpleader cannot stand. Accordingly, we reverse the order awarding attorney’s fees and costs.

REVERSED.

PALMER, C.J., and LAWSON, J., concur.

      . This court dismissed for lack of jurisdiction the appeal of the order granting interpleader, but has jurisdiction to review the final order awarding an attorney’s fee. See Hastings v. Osius, 104 So.2d 21, 22 (Fla.1958).


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Ricky BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3577.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2007.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Ricky Bradley challenges the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. On appeal, Mr. Bradley argues that because the information charging him with robbery did not allege that he discharged a firearm during the commission of the offense, the trial court erred when it imposed the twenty-year firearm mandatory minimum prison term pursuant to section 775.087(2), Florida Statutes (2002). We disagree, and affirm.

Relevant to this appeal, Mr. Bradley was charged by information with robbery with a firearm in violation of sections 812.13(1) and (2)(a), Florida Statutes (2002). The information included an allegation that in the course of committing the robbery, Mr. Bradley “was in possession of and carried a firearm,” and cited section 775.087(2), Florida Statutes (2002). Mr. Bradley subsequently entered a plea of nolo contende-re to robbery with a firearm pursuant to a plea agreement calling for a sentence of twenty years in prison with a twenty-year minimum mandatory term resulting from his discharge of a firearm during the robbery. Although no direct appeal was taken, Mr. Bradley then filed a motion to correct sentence pursuant to rule 3.800(b)(2). In his motion, Mr. Bradley argued that his twenty-year minimum mandatory sentence was illegal because the information filed by the State alleged the possession of a firearm, and not the discharge of a firearm. Relying on Hope v. State, 588 So.2d 255 (Fla. 5th DCA 1991), the trial court denied the motion. This appeal followed.

At the time that Mr. Bradley entered his plea, his counsel advised the court:

Your Honor, at this time[,] pursuant to negotiations with the [Sjtate of Florida[J Mr. Bradley is going to withdraw his not guilty pleas as to attempted felony murder and armed robbery with a firearm. He’s going to be pleading no contest to each count of the information. There’s going to be a stipulation that the injuries to the victim ... were moderate. What this does is take it out of the 25[-]year mandatory sentencing under the 10/20/life bill. Which if they were deemed to be severe injuries[,] it would be a mandatory 25.
The agreement is pursuant to the 10/20/life bill he is still exposed, because the firearm was discharged, to 20 years mandatory. He will be sentenced to 20 years in the state prison with the expectations [sic] he will have to serve 20 years day for day with credit for time served. I’ve explained to him the only way he’ll get out in less than 20 years is if some how the laws change and it applies to it. But as it stands now[,] he’s got to do 20 years.

The State agreed that the plea agreement was as represented and Mr. Bradley then entered his plea, stipulating to the facts alleged in the complaint affidavit (which stated that he had discharged a firearm during the commission of the robbery).

Section 775.087, Florida Statutes, commonly referred to as the 10/20/life statute, requires the imposition of a minimum mandatory sentence of ten years of imprisonment for possessing a firearm, twenty years imprisonment for discharging a firearm, and twenty-five years to life for causing death or great bodily harm resulting from the discharge of a firearm, during one of the felonies enumerated in the statute. See § 775.087(2)(a)l.-3., Fla. Stat. (2006).

“The purpose of an information is to fairly apprise [the] defendant of the offense with which he is charged.” Leeman v. State, 357 So.2d 703, 705 (Fla.1978). As a matter of fundamental due process, an information must include a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fla. R.Crim. P. 3.140(b). As sentencing laws have become more complex with the legislative creation of numerous sentencing enhancement and reclassification schemes, the information has taken on added importance by alerting the defendant to the potential sentences that can be imposed in the event of conviction. Due process is violated when an individual is convicted of a crime not charged in the charging instrument. See State v. Gray, 435 So.2d 816, 818 (Fla.1983). However, an information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. Fla. R.Crim. P. 3.610; State v. Burnette, 881 So.2d 693 (Fla. 1st DCA 2004). “[T]he test for granting relief based on a defect in the charging document is actual prejudice.... ” Gray, 435 So.2d at 818. If the State wishes to seek the reclassification of a crime under the 10/20/life law, it must allege the necessary factual predicate in the information, as such facts are treated as “essential terms.” Koch v. State, 874 So.2d 606 (Fla. 5th DCA 2004); see also Rogers v. State, 963 So.2d 328, 335-36 (Fla. 2d DCA 2007); Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004); Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003).

Though not in the context of the 10/20/life law, the decisional law has allowed a plea to supply missing elements from an indictment, or information. For example, in Burns v. State, 300 So.2d 317 (Fla. 2d DCA 1974), the appellant was charged with larceny and entered a guilty plea to grand larceny. On appeal, he asserted that he could not be adjudicated guilty of a crime with which he was not charged. The Second District Court affirmed the defendant’s conviction, finding that the plea and proceedings in open court constituted a mutually agreeable amendment of the information. In Brlecic v. State, 456 So.2d 503 (Fla. 2d DCA 1984), the court again held that “the factual basis given in .connection with the plea supplied the missing element of the first degree burglary thereby implicitly amending the information.” Id. at 505. There, the appellant was adjudicated guilty of first-degree burglary even though the amended information charged only burglary of the second degree. The reviewing court indicated that in view of the lower court’s diligent efforts to ensure the appellant understood the consequences of his plea, there could be no possibility that the appellant could have been misled or prejudiced by the amended charging document. In Hope v. State, 588 So.2d 255, 258 (Fla. 5th DCA 1991), the appellant was charged with DUI under a uniform traffic citation. He pled to felony DUI after receiving copies of the underlying convictions for DUI and notice of the pertinent statutory subsection for felony DUI. Relying on Brlecic, this Court found that even though the information did not allege previous convictions or designate the pertinent subsection, the appellant’s “pleading to an offense acknowledging the existence of un-pled essential elements, implicitly amends the information to include them.” Hope, 588 So.2d at 258. This Court upheld the conviction since the appellant had not been misled in his defense nor was there any danger that he may again be prosecuted for the same offense. Id. Relying on these eases, the First District, in Billiot v. State, 711 So.2d 1277 (Fla. 1st DCA 1998), similarly upheld the defendant’s guilty plea to charges that he committed aggravated assault while wearing a mask because, while the information did not allege that he wore mask, the factual basis of his plea clearly established that he did so. Here, we conclude that, consistent with the authorities cited, Mr. Bradley’s explicit plea to discharge of a firearm during the commission of a robbery constituted his consent to the implicit amendment of the information to include this element, particularly since it is clear from the record that Mr. Bradley was not misled or prejudiced by the unwritten amendment to the information.

The rules of criminal procedure are not intended to furnish a procedural device to escape justice. Stang v. State, 421 So.2d 147, 149 (Fla.1982). As discussed earlier, the test for granting relief based on a defect in the charging document is actual prejudice. Billiot, 711 So.2d at 1278; see Brlecic, 456 So.2d 503 (permitting state to amend its statement of particulars during trial when there was no prejudice to defendant). Here, Mr. Bradley makes no claim of prejudice. Although Mr. Bradley was only charged by information with possession or carrying a firearm during the commission of the qualifying offense, the record demonstrates that Mr. Bradley was specifically advised that he was pleading to crimes under the 10/20/life statute, and that he was exposing himself to a twenty-year minimum mandatory for discharge of a firearm. As a result, as in Burns, Billiot, Brlecic and Hope, Mr. Bradley’s plea constituted his consent to the implicit amendment of the information to include the discharge of a firearm element.

We acknowledge, as Mr. Bradley argues, that on identical facts, the Fourth District reached the opposite conclusion in Jackson. We disagree with our sister court because we believe the Jackson opinion places a premium on form at the expense of substance since there, as here, the defendant could not credibly argue that he was not aware of the terms of his plea agreement with the State.

Finally, we observe that had this matter proceeded to trial, we might view the matter differently, as a defendant should have clear notice of the charges against him and the facts necessary to support sentence enhancements. But, as the Supreme Court recognized in Blakely v. Washington, 542 U.S. 296, 309, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), “[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfind-ing.” Here, we conclude that Mr. Bradley stipulated to the relevant facts necessary to support the imposition of the twenty-year minimum mandatory sentence required for the discharge of a firearm during the commission of a qualifying felony. The plea proceedings reflect that Mr. Bradley was sufficiently put on notice that he was subject to the enhanced minimum mandatory of twenty years due to his discharge of a firearm. As a result, we affirm the denial of his motion to correct sentence and certify express and direct conflict with Jackson.

AFFIRMED; CONFLICT CERTIFIED.

GRIFFIN and EVANDER, JJ., concur.

      . Mr. Bradley’s motion, which was not prepared by appellate counsel, was filed under rule 3.800(b)(2); however, this rule does not apply because he did not directly appeal his conviction and sentence. See Amendments to Fla. R. ofCrim. P. 3.111(e) & 3.800 & Fla. R. App. P. 9.020(h), 9.140, & 9.600, 761 So.2d 1015, 1019 (Fla.1999) (explaining that rule 3.800(b)(2) pertains to motions to correct sentencing errors, which includes challenge against illegal sentence, while an appeal is pending); Day v. State, 770 So.2d 1262, 1262 (Fla. 1st DCA 2000). Still, the trial court properly treated the motion as one filed pursuant to rule 3.800(a) since a defendant may raise the illegality of his sentence at any time. A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Leath v. State, 805 So.2d 956, 957 (Fla. 2d DCA 2001).

      . In relevant part, section 775.087(2)(a)l.-3., Florida Statutes, provides:
      (2) (a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, ... and during the commission of the offense, such person actually possessed a "firearm” ... shall be sentenced to a minimum term of imprisonment of 10 years....
      2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” ... as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.
      3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a "firearm” ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

      . In reaching this conclusion, we note that our supreme court has affirmed convictions even when an element of the crime was not supported by a jury finding, concluding that the element was either not in dispute or was waived by the lack of contemporaneous objection to the jury instructions. See Insko v. State, 969 So.2d 992 (Fla.2007) (agreeing that defendant's age was element of offense of lewd or lascivious conduct, but nonetheless concluding that defendant was not entitled to relief because he failed to object to jury instruction, thereby waiving any claim to relief); see also Pena v. State, 901 So.2d 781, 784 (Fla.2005) (holding that the failure to instruct the jury that the defendant’s age is an element of first-degree murder by drug distribution was not fundamental, and nothing that element was undisputed and no timely objection was raised); Glover v. State, 863 So.2d 236, 238 (Fla.2003) (holding that defendant’s age is an element of capital sexual battery, but affirming conviction because failure to so instruct the jury was not fundamental where element was undisputed). If a defendant can waive the jury’s failure to find an element of the crime, we have no difficulty in concluding that a defendant can stipulate to the existence of that element or sentencing factor in the context of a voluntary plea.


author: PER CURIAM.

text:
    James Earl LANG, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0407.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The revocation of appellant’s community control as well as the sentence imposed upon revocation are affirmed. However, this cause is remanded for entry of a corrected revocation order reflecting that appellant did not enter a no contest plea but instead contested the charges made in the affidavit of violation of community control.

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


text:
    Jose D. CAMPOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2957.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.
    Jose D. Campos, Zephyrhills, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, but again we certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA), rev. denied, 920 So.2d 628 (Fla. 2005). See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 458 (Fla.2007); see also Heck v. State, 966 So.2d 515 (Fla. 4th DCA 2007).

GUNTHER, WARNER and FARMER, JJ., concur.


text:
    Alphonse REESE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4400.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.

      Alphonso Reese, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Comer v. Moore, 817 So.2d 784 (Fla.2002); Allen v. State, 768 So.2d 1168, 1169 (Fla. 4th DCA 2000) (citing Clements v. State, 761 So.2d 1245 (Fla. 2d DCA 2000)); Sanchez v. State, 765 So.2d 246, 247 (Fla. 3d DCA 2000).

GUNTHER, KLEIN and HAZOURI, JJ., concur.


text:
    Dennis BUSSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4661.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.
    Dennis Bussey, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to defendant seeking relief from the Commercial Motor Vehicle Review Board. See § 316.3025(7), Fla. Stat.

GUNTHER, POLEN and KLEIN, JJ., concur.


author: FARMER, J.

text:
    Steven WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2080.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The charges against Wilson stemmed from an altercation between him and two other youths named Nicholas and Christopher. Wilson was standing outside of his house with his brother when the other youths drove by. From the passing car, Christopher yelled the word “faggot” at Wilson.

The other youths stopped near a stop sign just down the street from Wilson’s house and emerged from their car. Wilson retrieved a fishing gaff, a long pole with a hook at the end, from a boat in his yard. Wilson and the other two youths approached each other. One of the other youths carried a table leg taken from the trunk of his car. Wilson carried the gaff. A fight ensued. The fight broke up. Police arrived. Nicholas was injured and his car was damaged.

Wilson was charged with aggravated battery of Nicholas and criminal mischief. His defense was that the other two youths tried to run him over as they drove by his house, that the youths armed with a table leg first approached him forcing him to defend himself. He asserted that he was acting in self-defense when he struck Nicholas with the gaff. The State’s theory was that the other youths did not try to run Wilson over as they drove by, and that they emerged from their car only after they saw Wilson coming towards them with the fishing gaff.

Before trial the State sought to exclude any reference at trial about prior confrontations between Wilson and the other youths. Wilson argued that his attempted justification of self-defense stemmed precisely from earlier conflicts between Wilson and the youths. More specifically, he proffered testimony regarding three prior incidents: (1) six months earlier, there was a verbal altercation between Wilson and the youths; (2) three months after that, they tried to entice Wilson into a fight, using a highly provocative racial epithet; and (3) they had driven past Wilson’s house every day for the entire six months leading up to the incident in question. Nevertheless the trial court granted the State’s request and excluded Wilson’s proposed evidence, allowing him to renew the issue at trial. Wilson was convicted by the jury, who did not hear his evidence of the history between him and the youths. We reverse for a new trial.

A person may use deadly force in self defense when one reasonably believes that deadly force is necessary to prevent great bodily harm. See § 776.012, Fla. Stat. (2004); Berrios v. State, 781 So.2d 455 (Fla. 4th DCA 2001); Weiand v. State, 732 So.2d 1044, 1049 (Fla.1999). But even under those circumstances, one may not resort to deadly force without first using every reasonable means available to avoid the danger, including retreat. Berrios, 781 So.2d at 457 (citing Weiand, 732 So.2d at 1049 (holding that a person must “retreat to the wall” unless he is in his home or it would increase the danger)).

On the other hand, “[ejvidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self defense.” Berrios, 781 So.2d at 457-58 (citing Smith v. State, 606 So.2d 641, 642 (Fla. 1st DCA 1992); § 90.404(1)(b), Fla. Stat. (1999)). “The victim’s character becomes relevant to resolve an issue as to the reasonableness of the defendant’s fear at the time of the incident.” Berrios, 781 So.2d at 458 (citing Lozano v. State, 584 So.2d 19, 23 (Fla. 3d DCA 1991), rev. denied, 595 So.2d 558 (Fla.1992)). Before defendant may offer such character evidence, however, he “must lay a proper predicate demonstrating some overt act by the victim at or about the time of the incident which reasonably indicated to the defendant a need for action in self defense.” Berrios, 781 So.2d at 458 (citing Smith, 606 So.2d at 643; Quintana v. State, 452 So.2d 98, 100 (Fla. 1st DCA 1984); Williams v. State, 252 So.2d 243, 247 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla.1971)). As we made clear in Berrios:

“If there is the slightest evidence of an overt act by the victim which may reasonably be regarded as placing the defendant in imminent danger, all doubts as to the admission of self-defense evidence must be resolved in favor of the accused.”

781 So.2d at 457; see also Nelson v. State, 739 So.2d 1177, 1178 (Fla. 4th DCA 1999).

We think Wilson’s testimony, recounting the event from his perspective, was a sufficient predicate to allow his proposed evidence. The other youths nearly ran him over as they drove by him. They drove to a stop sign a few doors from Wilson’s and stopped their car. They emerged from their car, one of them obtaining a table leg from the trunk. Only then did he seek out the boat gaff. As the youths approached him, he began walking towards them. He did not think it reasonably possible to retreat to his house before they would be on him with the table leg. We conclude that his proffer constituted at least some evidence “which may reasonably be regarded as placing the defendant in imminent danger.” Berrios 781 So.2d at 457.

We also reverse the sentence for misdemeanor criminal mischief as being in excess of the maximum penalty for the crime.

Reversed for new trial on charge of aggravated battery.

WARNER and GROSS, JJ., concur.

      . The events in question took place in May 2004 — which was before the amendments to section 773.012 and adoption of section 776.013 effective in 2005.


author: SALTER, J.

text:
    Cristina CORALLO, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN & FAMILY SERVICES, Appellee.
    No. 3D07-804.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.
    Cristina Corallo, in proper person.
    Javier A. Ley-Soto, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   SALTER, J.

Cristina Corallo, pro se, appeals a final administrative order of the Department of Children and Families (DCF) Office of Appeal Hearings (OAH). Finding no error in the OAH’s final order dismissing the appeal, we affirm. We provide this analysis in order to confirm DCF’s voluntary correction of portions of the order and its invitation to Ms. Corallo to present further evidence if she has it.

Proceedings Below

Between June 1988 and May 1989, Ms. Corallo received cash assistance, Medicaid, and food stamp benefits from DCF. Sometime after the disbursement of the benefits to Ms. Corallo, DCF learned that she had failed to report her then-current employment. In 1990, DCF instituted actions against Ms. Corallo, pursuant to subsection 414.41(1) of the Florida Statutes, for failure to report her employment and income. DCF determined that Ms. Corallo owed overpayments in the amounts of $2577 for the cash assistance, $910.18 for Medicaid, and $1371 for the food stamps.

Ms. Corallo filed an appeal with OAH on January 18, 2007, and a hearing was held on February 20, 2007. At the hearing, DCF made a verbal motion to dismiss based on Ms. Corallo’s untimely request for the hearing. This request was granted by OAH in a written final order. Ms. Corallo now appeals OAH’s dismissal of her appeal.

Time Limits for Filing Administrative Appeals

Florida Administrative Code Rule 65-2.044 gives any recipient of DCF’s services the right to request a hearing. However, the recipient must exercise his or her right to appeal within ninety calendar days of DCF’s written notification of the decision. See Fla. Admin. Code R. 65-2.046(l)(c) (2007). A request for a hearing may only be dismissed or denied by the hearing officer. See Fla. Admin. Code R. 65-2.047 (2007).

Ms. Corallo filed her appeal with OAH on January 18, 2007 — approximately seventeen years after DCF’s original decision and notification to Ms. Corallo of the benefits overpayments. OAH found that Ms. Corallo was aware of the claims and her right to request an appeal within ninety days, but that she did not exercise her right to an appeal within this time frame. Because payments were processed to reduce her liabilities to DCF in the intervening years, it appears that Ms. Corallo requested a hearing in an effort to demonstrate that she had paid the obligations.

Ms. Corallo’s Further Appeal

Ms. Corallo is appealing OAH’s dismissal of her appeal. She states as her grounds that she paid the claims “in full” through an “Alternative Program.” Ms. Corallo also states that her case was closed and sealed in July 2002. Additionally, in its answer brief, DCF noted that after the hearing it gave Ms. Corallo an opportunity to present it with receipts of payment. DCF maintains that it reconciled its record logs with Ms. Corallo’s receipts, but still showed a balance owing on the claims.

Ms. Corallo did not provide the court with the record or a transcript from the hearing held in February 2007. The burden lies with the appellant to supply the reviewing court with the record on appeal, and to demonstrate reversible error. See Fla. R.App. P. 9.200(e) (2007); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980) (holding that the lower tribunal’s decision carries a “presumption of correctness”). Thus, we are bound by the record as stated by OAH and may only reconsider the final order for any misconceptions of law by the hearings officer. See Applegate, 377 So.2d at 1152.

Ms. Corallo’s appeal did, however, result in a voluntary correction of the OAH’s errors in pages one and two of the final order.

Conclusion

While we are bound on this record by the decision of OAH, we note that DCF commendably has indicated in its brief that it is willing to discuss any disputed amounts owed with Ms. Corallo, and that she may present to it “any and all information indicating that she has paid the claims in full.”

Affirmed.

      . Subsection 414.41(1) of the Florida Statutes states that if a person who has received public assistance benefits for which he or she is not entitled, either by mistake or fraud, DCF "shall take all necessary steps to recover the overpayment.” (Emphasis added.)

      . The OAH order reviewed here included claim amounts and remaining balances that were erroneous. Those “scrivener’s errors” were corrected in the DCF's brief here to the following balances payable: $1524.51 on the cash assistance obligation; $910.18 for Medicaid; and $7.31 for food stamps.

      . DCF brief at pages 5-6. Although we cannot provide Ms. Corallo with legal advice, we note for her benefit the assistance she might be able to obtain from The Florida Bar and other groups if she has other evidence that her obligations to DCF have been satisfied. See “Information for Persons Who Do Not Have a Lawyer,” available in this Court’s Clerk’s office and law library (and electronically, on the Third District Court of Appeal website at www.3DCA.flcourts.org).


text:
    Ruben SOTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2370.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.
    Lisa S. Walsh, Miami, for appellant.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GREEN, SHEPHERD and CORTINAS, JJ.
   PER CURIAM.

Defendant, Ruben Soto, appeals from the judgment and sentence entered upon a jury verdict finding him guilty of two counts of DUI manslaughter and two counts of manslaughter by culpable negligence. Based upon the State’s confession of error, we order that the convictions for manslaughter by culpable negligence be vacated. See State v. Chapman, 625 So.2d 838, 839 (Fla.1993); Logan v. State, 592 So.2d 295, 300 (Fla. 5th DCA 1991) (holding that a defendant cannot be convicted of both DUI manslaughter and manslaughter by culpable negligence in connection with a single death). On all other issues, we affirm.

Affirmed in part and remanded to the trial court with instructions that the convictions for manslaughter by culpable negligence be vacated.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Steven YOUNG, Appellee.
    No. 4D07-1813.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Greg Ross, P.A., Fort Lauderdale, for appellee.
   MAY, J.

The State appeals an order granting the defendant’s motion to suppress. It argues the trial court erred because there was reasonable suspicion for the initial stop and probable cause for the subsequent search. We agree and reverse.

While responding to a fire at approximately 1:16 a.m., a deputy saw the defendant riding a bicycle. As the deputy approached an intersection near the fire, the defendant failed to yield to a stop sign, causing the vehicle in front of the deputy to almost hit him. The defendant lost control of the bicycle and fell off. The deputy got out of her car and tried to make contact with the defendant.

The deputy became concerned because the defendant didn’t stop and was coming from near the location of the fire call. When the defendant ran, the deputy became suspicious and began pursuit.

Segue to earlier in the evening, when a second deputy had been called to a restaurant bar concerning a battery involving a vehicle. The victims reported that after a verbal altercation involving the defendant, they left the bar and went to a warehouse they were renting. The defendant arrived at the warehouse shortly thereafter with another individual in a van. There, a battery occurred including the use of the van. While questioning the victims, the second deputy received the call about the fire. He recognized the address as a few doors down from the warehouse location of the battery.

As he began to respond to the fire call, the first deputy radioed the description of the defendant she was pursuing, which matched the description of the person involved in the battery. The second deputy relayed this information to the first deputy.

The first deputy ultimately apprehended the defendant as he attempted to climb over a chain-link fence. She handcuffed and searched him, finding two lighters. She placed the defendant in her patrol car and drove him to the location of the fire. The defendant was identified as being seen in the area where the fire had been started.

The State charged the defendant with battery with a deadly weapon (motor vehicle), arson, assault with a deadly weapon (motor vehicle), and resisting an officer without violence (fleeing). The defendant moved to suppress the lineup, show-up photograph, and other pre-trial and courtroom identification of the defendant. He also moved to suppress photographs, the bicycle, a pair of shoes, and the two lighters.

The defendant argued that there was no probable cause to justify the search, that the search was beyond the scope of that permitted when incident to a lawful arrest, and that the initial stop was illegal because law enforcement did not have reasonable suspicion. The State argued that both the stop and the subsequent search were justified.

Boiled down to its essence, the first deputy testified that she had observed the defendant commit a traffic infraction by crossing the intersection without yielding to the stop sign, but she didn’t write him a ticket. She had a hunch, but did not know whether a crime had been committed. The second deputy testified to the facts concerning the investigation of the battery and the exchange of information by radio. After a hearing, the trial court granted the defendant’s motions to suppress. The court stated:

I find that the officer, as she confessed, based on a hunch stopped the defendant, Mr. Young, and while he did commit traffic violations riding his bicycle at night without a light and apparently failing to yield to traffic, the officer acknowledged that that’s not why he was stopped. That wasn’t even a consideration for her initially. The reason she stopped him was because she just put two and two together and thought he may have been involved in this arson that she was traveling to or investigating. So I don’t believe that there was a well-founded or reasonable suspicion that he had committed a crime, or was about to commit a crime, or was in the process of committing a crime. Therefore, that motion would be granted. For appellate purposes, I think the defense is right and that the show up ultimately has to be suppressed as well. It stems from the illegal stop. Fruit of the poisonous tree, if you will. However, in case I’m wrong about that, I will make findings that the show up was not otherwise impermissibly suggestive. I think considering the factors that have been set forth by the State, that this wasn’t unnecessarily or impermissibly suggestive .... But I suppress; it nonetheless for the reasons before stated.

It is from this order that the State appeals. It argues that the facts support a finding of reasonable suspicion for the stop and probable cause for the arrest and subsequent search. We agree with the State and reverse.

We review orders on motions to suppress to determine whether the trial court’s factual findings are supported by competent substantial evidence and review legal issues de novo. Thomas v. State, 894 So.2d 126, 136 (Fla.2004). It is a legal issue — the standard to be applied in determining the justification for the stop and search — that allows us to apply the de novo standard of review in this case.

In examining the validity of a traffic stop under the Fourth Amendment, the “correct test to be applied is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.” Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So.2d 1171, 1174 (Fla.2004). The “officer’s reasons for a stop are immaterial and that stop is reasonable when the officer had probable cause to believe that a traffic violation occurred.” Petrel v. State, 675 So.2d 1049, 1050 (Fla. 4th DCA 1996). The “test ... is whether an officer could have stopped the vehicle for a traffic infraction.” Id. (quoting Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). ‘Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

In State v. Hernandez, 718 So.2d 833, 835 (Fla. 3rd DCA 1998), the trial court had rejected a similar argument by the State that the stop of a car was justified because of the commission of a traffic infraction. The trial court found “that the police had no articulable suspicion of a crime being committed ... given the officer’s candid admission that they had no intentions of citing the driver for the commission of the traffic infraction.” Id. The third district reversed. The court reiterated the proper test: “whether an officer could have stopped the vehicle for a traffic infraction.” Id. at 836.

Here, just as in Hernandez, the trial court erred in relying upon the deputy’s testimony that she had a “hunch” to reach the conclusion that the stop was unlawful. The proper analysis required an objective review of the facts to determine if reasonable suspicion existed for the stop and probable cause existed for the arrest and subsequent search. Our review reveals that the stop, arrest, and search were justified.

When the defendant ran the stop sign, the deputy had reasonable suspicion to stop the defendant for the traffic infraction. Because the deputy was justified in making the traffic stop, it was lawful for the deputy to order the defendant to stop. Because the defendant ran from the deputy, she had probable cause to arrest the defendant for resisting an officer without violence. See § 843.02, Fla. Stat. (2006). Thus, the search that produced the lighters was lawful as a search incident to arrest for resisting an officer. See also State v. Wilson, 725 So.2d 1143, 1144 (Fla. 2nd DCA 1998) (upholding a search incident to arrest when the defendant fled after being stopped for operating a bicycle without lights after dark in violation of statute).

For these reasons, we reverse the order of suppression and remand the case for further proceedings.

Reversed and remanded.

POLEN and KLEIN, JJ., concur.


author: GROSS, J.

text:
    Christopher Xavier WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-668.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Christopher White appeals his conviction after a jury trial of sale or delivery of cocaine, contrary to section 893.13(l)(a), Florida Statutes (2005). We reverse, because the trial court improperly admitted testimony that White’s conduct displayed a characteristic typical of drug transactions.

The evidence against White was based on a videotaped controlled buy made by a confidential informant, who admitted to 85 prior felony convictions. This buy was one of five or six drug purchases that the informant made on the same day. Two men approached the informant’s van. According to the informant, one “gentleman ... asked me what I wanted. The other gentleman had the narcotics and gave them to me and took the money.” The informant identified White as the person she dealt with at the window of the car to arrange the sale. The videotape establishes "White’s presence at the scene, but is ambiguous about what he said to the informant. A codefendant actually handed the drugs to the informant and took the money.

Over a defense objection, the court permitted the supervising detective to give this testimony:

Prosecutor: Detective, I’m going to ask you to give me a yes or no to this question. Is it uncommon for ... more than one person to come to the window of a car in a drug transaction?
Detective Oliver: No.

White’s defense was that “it is not illegal to be present when somebody else commits a crime.” The state contended that "White acted in concert with the codefendant by asking the informant what she “needed.”

General criminal behavior testimony based upon an officer’s experience with other cases is inadmissible as substantive proof of a defendant’s guilt. See Baskin v. State, 732 So.2d 1179, 1180 (Fla. 1st DCA 1999); Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997). Such testimony asks a jury to infer that the defendant is guilty because his behavior was similar to the behavior of others who committed similar crimes. See White v. State, 730 So.2d 715, 716 (Fla. 4th DCA 1999). This type of testimony is relevant because it tends to prove guilt; that a defendant engaged in conduct similar to other drug dealers would be admissible in a motion hearing on the issue of probable cause. See § 90.401, Fla. Stat. (2006). However, in a jury trial, the relevance of general criminal behavior testimony “is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. (2006); Dean, 690 So.2d at 723. “[EJvery defendant has the right to be tried based on the evidence against him, not on the characteristics or conduct of certain classes of criminals in general.” Id. (quoting Lowder v. State, 589 So.2d 933, 935 (Fla. 3d DCA 1991)).

Often, the state seeks to introduce general criminal behavior testimony in drug cases to show that a defendant’s conduct mirrored that of other drug sellers. In a variety of iterations, Florida courts have consistently held such testimony to be inadmissible:

—“not unusual” or “abnormal” not to recover marked money or drugs after an undercover buy, Shelton v. State, 654 So.2d 1295, 1296 (Fla. 4th DCA 1995);
—“very often” happens in drug sales that one person possesses drugs and another collects the money, Thomas v. State, 673 So.2d 156, 157 (Fla. 4th DCA 1996);
—not unusual for someone with contraband in luggage to consent to a search and people traveling under a false name “generally are involved in illegal activity,” Dean, 690 So.2d at 721-22;
—people dealing in drugs “stand on the corners and street edges,” Wheeler v. State, 690 So.2d 1369, 1371 (Fla. 4th DCA 1997);
—“not uncommon” for drug dealers to keep drugs off their persons, Dunning v. State, 695 So.2d 473, 474 (Fla. 4th DCA 1997);
—drug dealers often use brokers to set up a drug sale, typically do not carry money or drugs, commonly flag over vehicles to sell drugs, and “typically do not store drugs on the ground,” Moore v. State, 711 So.2d 1185, 1186-87 (Fla. 4th DCA 1998);
—“In a lot of these cases one individual will hold the drugs, another will solicit the sale ... [0]nce the transaction has occurred, either a monetary payment is given to the solicitor or the payment is given in narcotics.,” White, 730 So.2d at 716;
—“not uncommon for drug dealers to keep their drugs at a separate location, rather than carrying such contraband on their respective persons,” Baskin, 732 So.2d at 1180;
—“not unusual for one individual to direct a potential buyer to a second individual for consummation of the drug sale,” Hamilton v. State, 734 So.2d 1130 (Fla. 1st DCA 1999);
—“not unusual to not find marked money, cocaine or drugs on a drug seller after the sale and upon apprehension,” Daley v. State, 760 So.2d 217 (Fla. 4th DCA 2000);
—common for people arrested in a drug case to try to discard, hide, or conceal cocaine by throwing it away or eating it, Lawrence v. State, 766 So.2d 250 (Fla. 4th DCA 2000);
—“not unusual at all” for suspect to discard money used in a drug transaction, so that it was not recovered after an arrest, Batten v. State, 770 So.2d 271, 272 (Fla. 4th DCA 2000);
—“not uncommon for people selling cocaine to not have the cocaine in their physical possession,” Young v. State, 791 So.2d 1121 (Fla. 4th DCA 2000);
—“common for people to keep crack cocaine in their mouth,” Griffin v. State, 872 So.2d 998, 999 (Fla. 4th DCA 2004);
—“drug transactions often included two people involved in the sale, one who makes the offer, and the other who delivers the drugs,” Hicks v. State, 967 So.2d 1105 (Fla. 4th DCA 2007).

Detective Oliver’s testimony in this case is similar to that held inadmissible in Hicks, Hamilton, White, and Thomas. We do not find that “there is no reasonable possibility that the error contributed to the conviction.” Goodwin v. State, 751 So.2d 537, 541 (Fla.1999) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). The detective’s testimony refuted White’s theory that he did not participate in the crime. Without the criminal behavior testimony suggesting guilt by comparison, the jury would have been required to decide the case solely from the videotape and the informant’s testimony.

We find no error on the other points raised. The state’s evidence properly withstood a motion for judgment of acquittal.

Reversed and remanded.

WARNER and FARMER, JJ., concur.


author: TRAWICK, DARYL E., Associate Judge.

text:
    Robert L. FREDRICK, Syd Katz and Joel Langer, Appellants, v. NORTHERN PALM BEACH COUNTY IMPROVEMENT DISTRICT, Palm Beach County, Florida and Ibis Landing Venture, Ltd., Appellees.
    No. 4D06-3714.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      June Galkoski Hoffman of Fowler White Burnett, P.A., Miami, Steven Sloane New-burgh and Sandra I. Tart of Fowler White Burnett, P.A., West Palm Beach, for appellants.
    Ronald E. Crescenzo and Brian B. Jos-lyn of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for appellee Northern Palm Beach County Improvement District.
    Leonard Berger, Senior Assistant County Attorney, Palm Beach County Attorney’s Office, West Palm Beach, for appel-lee Palm Beach County.
   TRAWICK, DARYL E., Associate Judge.

Appellants Robert L Frederick, Syd Katz and Joel Langer (the “Homeowners”), brought action against Appellees North Palm Beach County Improvement District (the “District”), Palm Beach County (the “County”) and Ibis Landing Ventures, Ltd. (“Ibis”) challenging the validity of property assessments and impact fees which had accrued on their property for the purpose of expanding Northlake Boulevard. The District, the County and Ibis moved for partial summary judgment as to Counts I through V of the amended complaint, asserting that these counts were barred by the statute of limitations, laches, waiver and res judicata. Following a hearing, the trial court granted the motion and entered partial summary judgment as to these counts in favor of the Appellees.

Background Facts

The District is a public corporation of the state of Florida that is authorized by law to create water management plans for land within its jurisdiction, to issue bonds to finance these plans, to delineate areas called units of development that benefit from the plans, and finally, to assess the lands located in the unit of development to redeem the bonds. In 1989, the District created an area called “Unit of Development 18” and adopted a Water Management Plan to benefit the area. The Unit 18 site is also known as the Ibis Golf and Country Club. This development was to include single family residences, multi-fam-ily housing, park areas and three golf courses. The Water Management Plan was to include, among other aspects, improvements to Northlake Boulevard. In order to finance the Water Management Plan, in 1990, the District adopted a General Bond Resolution. This resolution authorized the District to issue bonds not exceeding $35,235,000 to finance the improvements under the Water Management Plan. At the same time, the District adopted the Unit of Development 18 Program One Tax Resolution, authorizing the assessment of “drainage taxes” on all property owners within Unit 18, in order to pay for the bonds that the District had issued.

In 1990, several property owners who would be subject to taxation in Unit 18, along with the State of Florida, brought a lawsuit against the District challenging the issuance of the bonds under the General Bond Resolution. On June 6, 1990, the Fifteenth Judicial Circuit Court entered a Final Judgment that validated the bonds authorized by the District in the General Bond Resolution. The trial court in that case determined that (1) Unit 18 was created in accordance with Chapter 59-994, Laws of Florida and Chapter 298, Florida Statutes; (2) that the benefits assessed against the land in Unit 18 were greater than both the costs of the improvements required by the plan and the amount of bonds issued; (3) and that the drainage tax had been lawfully levied pursuant to Chapter 298. A Certificate of Non Appeal followed on July 17,1990.

In December 1993, the District, County, PGA National Venture and Ibis National Venture (INV) entered into a Joint Project Agreement (the “Agreement”). The Agreement called for the District to issue bonds to finance the construction of North-lake Boulevard improvements and accept bids for the construction of the improvements. The Agreement addressed the issue of how the bonds would be financed as follows:

WHEREAS, to the extent that the DISTRICT has or will issue tax exempt bonds to acquire the funds necessary to design, finance and/or construct certain Sections of the described Northlake Boulevard improvements, the owners of the real property within the DISTRICT’S Unit No. 18 will be subject to annual DISTRICT non-ad valorem assessments in order to repay said bonded indebtedness ...

Additionally, the Agreement discharged INV’s debt to the District of $575,000 because the improvements INV was required to make exceeded the original estimated cost. Lastly, under the Agreement, all impact fees collected within the Ibis development would be paid to the District so that it would be able to redeem the bonds more quickly.

Three documents were recorded in the public archives which relate to the issuance of the bonds and the imposition of the property assessments and impact fees on the owners of properties within Unit 18. First, on January 9, 1990, the District recorded the Notice and Disclosure of Taxing Authority (the “Notice”) in the Official Record Book 6318, Page 1394 of the Public Records of Palm Beach County. This Notice “inform[s] those individuals or entities owning or purchasing land within the area described [Unit 18] ... that they will be responsible on an annual basis for payment of maintenance taxes and special assessments against their land.” Second, on July 31, 1990, the Declaration of Covenants, Restrictions and Easements for Ibis Golf and Country Club (the “Declarations of Covenants”) was recorded in the Official Record Book 6534, Page 1173 of the Public Records of Palm Beach County. In Article V, section 13, the Declaration of Covenants provides that:

Each owner hereby acknowledges and agrees that he shall be assessed taxes levied by the District for the payment of bonds to finance and maintain certain roadway systems ... throughout and servicing the Property. Each owner further acknowledges and agrees that the District may issue additional bonds or other financing in the future for future roadway improvements on and servicing the Property including the expansion of Northlake Boulevard.

Third, the Agreement, dated December 7, 1993 was recorded in the public records of Palm Beach County. It stated that “owners of the real property within the DISTRICT’S Unit No. 18 will be subject to annual DISTRICT non-ad valorem assessments in order to repay said bonded indebtedness ...”

The Homeowners bought properties inside Unit 18 in 1998,1997 and 1996 respectively, and all testified in depositions that they were given a copy of the Declaration of Covenants. All three Homeowners were aware from the first year of purchase that taxes and assessments were levied against properties they bought.

In October 2004, the Homeowners filed a six count complaint (five counts are the subject of this appeal) against the District, the County and Ibis, alleging that the assessments and impact fees imposed by the District in order to repay the bonds issued were improperly imposed, apportioned and applied. The Homeowners argue that the District illegally and inequitably assessed the homeowners of Unit 18 exclusively with the $40 million bond debt that resulted from expanding Northlake Boulevard. The Homeowners allege that other nearby housing developments benefited from the expansion and that the other developments should also be taxed.

The District filed a motion for partial summary final judgment, arguing that the Homeowner’s claims were barred by the statute of limitations, res judicata, and laches. As to the statute of limitations, the Homeowners maintained that while ten years had passed since the Agreement, the statute had not run since they had never been noticed that only Unit 18 owners were charged with the impact fees and property assessments used to build North-lake Boulevard. The Homeowners allege that it was not until 2003, during a meeting where the District discussed the assessments, that they became aware of this inequity. The trial court granted the motion and entered a partial summary judgment as to Counts I through V, finding that the action was not brought within the statute of limitations since:

The instant action was filed more than four years after (a) Defendants’ entry into the Joint Project Agreement; (b) the date the bond validation order became final; (c) the recording of the Notice of Taxing Authority and the Ibis Declaration of Covenants, Restrictions and Easements in the public records; and (d) the date each of the named Plaintiffs each made their initial purchase property in the Ibis Development.

Additionally, the trial court found that “[a]s a matter of law, all of the named Plaintiffs purchased their properties in IBIS with at least inquiry notice as to the contents of the public records.” The trial court concluded that the Homeowners had inquiry notice because they had all received a copy of the Declaration of Covenants. According to the court, they had “failed or neglected to review the applicable documents and records prior to their purchase in Ibis and did so at their own peril.”

Analysis

Review of a trial court’s conclusions of law and statutory construction is de novo. Dependable Component Supply, Inc. v. Pace Electronics, Inc., 772 So.2d 582, 584 (Fla. 4th DCA 2000). Appellate review of an entry of summary judgment is likewise de novo. Florida Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001). Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003). Any doubt as to an issue of material fact must be resolved in favor of the nonmoving party. Id.

In considering whether summary judgment was appropriate here, we must determine what the applicable statute of limitations is in this cause of action, when it began to accrue, and whether it has run, barring the claims of the Homeowners here.

Section 95.11(3)(p), Florida Statutes (2006) establishes a four year statute of limitations for any “action not specifically provided for in these statutes”. Neither party contends that the four-year statute is inapplicable here. We agree with the parties and the trial court that the four-year statute of limitations should be applied.

The Fifth District applied the four-year statute of limitations in considering a challenge to a special assessment in Keenan v. City of Edgewater, 684 So.2d 226 (Fla. 5th DCA 1996). In Keenan, the appellants challenged a resolution imposing a special assessment on their properties to build a water and sewer treatment plant. The challenge was premised on the fact that the plant was to serve the entire city, but that only property owners in a portion of the city were being specially assessed to pay for the plant. Recognizing that there was little authority to support a determination as to “when a cause of action on a wrongful municipal special assessment accrues for purposes of the running of the statute of limitations”, the court held that the four-year statute begins to run at the time the special assessment is approved by resolution.

This Court cited Keenan approvingly in H & B Builders, Inc. v. City of Sunrise, 727 So.2d 1068 (Fla. 4th DCA 1999). In H & B Builders, this Court applied the four-year statute of limitations in a similar case challenging the validity of a special assessment against property owners for the construction of an industrial park. In finding that the statute barred the claim, this Court specifically rejected the notion that special assessments could be considered to be an ongoing violation, to be treated like an installment contract which could be challenged after the statute of limitations period had passed. Id. at 1070. The Court agreed with the trial court’s finding “that the city has a need for certainty in its economic affairs, and that its policy decisions should not be subjected to a perennial review....” Further, the Court found that the statute of limitations begins to accrue either “from the date the assessments are created or from the date the city approved ... them”, as this provided property owners with “adequate notice”. Id. at 1071, citing J & L Enterprises v. Jones, 614 So.2d 1151 (Fla. 4th DCA 1993). See also Ves Carpenter Contractors, Inc. v. City of Dania, 422 So.2d 342 (Fla. 4th DCA 1982) (finding that although water and sewer impact fees were applied illegally, the challenge to them was barred by the four-year statute of limitations); Spring Lake Improvement District v. Tyrrell, 814 So.2d 1077 (Fla. 2d DCA 2002) (holding that the four-year statute of limitations applied to assessments which were void from their inception when challenged over ten years after being originally assessed).

In the case before us, drainage taxes were authorized in the Unit of Development 18 Program One Tax Resolution issued by the District in 1990 to pay for the bonds issued for improvements, including the Northlake Boulevard improvements. Annual assessments and impact fees were created by the District in 1993 when the Agreement was issued. The authorization of taxes, as well as the creation of assessments and impact fees, took place in 1990 and 1993, respectively. Keenan, H & B Builders and the other cases cited above all support the conclusion that the statute of limitations here began to accrue in 1990 when the drainage taxes were authorized by the District — a state created entity acting within the scope of its authority — or at the latest in 1993, when the assessments and impact fees were created by the District. Using either starting point, the statue of limitations would have run before this action was initiated.

The Homeowners attempt to distinguish Keenan and H & B Builders by arguing that the special assessments and impact fees were improperly limited to Unit 18 homeowners, which they had no way of knowing (for reasons not dispositive of the issue here). Therefore, they assert, the statute of limitations did not begin to accrue until they had notice of the exclusive nature of the assessments and impact fees being charged. While neither Keenan or H & B Builders specifically address the issue of notice, this Court in H & B Builders did refer approvingly to the trial court’s discussion of notice, stating:

The trial court also recognized, in determining that H & B’s claim is barred by the applicable four-year statute of limitations, that H & B “provided no cogent public policy reason why a four-year statute of limitations period that runs either from the date assessments are created or from the dates the city approved the 1987 and 1992 refunding does not provide them with adequate notice.”

Id at 1071. Thus, this Court Seemingly-rejected an argument for additional notice that would have extended the starting point for the statute of limitations beyond the creation or approval of an assessment. The Court concluded that municipalities need certainty in their economic affairs and that “policy decisions should not be subjected to perennial review”. Id

In the case now before us, we must balance the interests of the Homeowners in receiving notice of the exclusive nature of the Unit 18 assessments against the public policy concerns highlighted in H & B Builders. Weighing these competing interests, we find that, on these facts, the Homeowners interests are outweighed by the need of the District for certainty in creating water management plans and funding those plans. As a result, the approval and creation of the assessments and impact fees here by the District provided sufficient notice to then existing and future homeowners of their obligations. This is true even if the assessments and impact fees were improperly levied. See Ves Carpenter, 422 So.2d 342; Spring Lake Improvement District, 814 So.2d 1077.

Because the statute of limitations ran well before the inception of this lawsuit, the trial court correctly granted the partial motion for summary judgment. As the statute of limitations bars the causes of action before us, we need not address the other arguments raised.

Affirmed

STONE, and STEVENSON, JJ., concur.

      .The District was formerly known as Northern Palm Beach County Water Control District. The District was created by Chapter 59-994, Laws of Florida, as amended, and more recently codified by Chapter 2000-467, Laws of Florida. The District is generally governed by Chapter 298, Florida Statutes; however, the terms of the District’s enabling act clearly specify that Chapter 298 applies "so far as [it is] not inconsistent with this Act [enabling act].” Chapter 59-994, § 2, Laws of Florida. See also Chapter 2000-467, Laws of Florida.

      . Northern Palm Beach County Water Control District v. State of Florida, et. al., CL-90-4756-AH (15th Cir. June 6, 1990).

      . Ibis National Venture was responsible for the development of the Ibis Golf and Country Club within Unit 18.

      . Each of the Homeowners testified during depositions that they had received tax bills for the assessments after they purchased their homes and that they had paid the assessments.

      . The uncertainty that would be created in a finding that the statute of limitations begins to accrue at an unspecified future date is underscored by the dates the relevant actions took place here-drainage taxes were authorized in 1990 (fourteen years before this action was initiated); a lawsuit was brought by Unit 18 homeowners challenging the issuance of bonds, which resulted in court validation of the bonds in 1990 (fourteen years before this action); assessments and impact fees were created in 1993 (eleven years prior to this action); the Notice of Taxing Authority (1990), the Declaration of Covenants (1990) and the Joint Project Agreement (1993), were each filed in the public records of Palm Beach County (fourteen and eleven years before this action was filed); and the Homeowners bought their properties inside Unit 18 in 1996, 1997 and 1998 (six to eight years before this action). The Homeowners contend that they did not receive notice of the exclusive nature of the assessments until a meeting in 2003, thirteen years after the authorization of the taxes on Unit 18 homeowners, and the date they believe the statute of limitations should begin to run.


text:
    OCALA AUTO SHOW INC., a Florida corporation and Linda Sanchez as officer and personal guarantor, Appellants, v. RIVERBANK ACCEPTANCE, INC., a Florida corporation, Appellee.
    No. 4D06-4709.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Kenneth Eric Trent of Kenneth Eric Trent, P.A., Fort Lauderdale, for appellants.
    Simon M. Azarnia of Campos & Azarnia, LLP, Plantation, for appellee.
   PER CURIAM.

Defendants Ocala Auto Show and Linda Sanchez appeal the trial court’s entry of judgment on the pleadings in this breach of contract action. Attached to the Initial Brief is a “Notice of Hearing on Judge’s Cancellation List.” This notice of hearing stated:

Please be advised that the undersigned attorney for Plaintiff, Simon M. Azarnia, Esq., will call to be heard before the Honorable Patti Englander Henning at the Broward County Courthouse, 201 S.E. 6th Street, room 996, Ft. Lauder-dale, FL 33301, on 2nd Day of August, 2006 at 10:00 a.m. or as soon thereafter as may be heard the following motion(s):

The notice of hearing next contains a certificate of service; it fails to identify the motion to be heard and leaves that portion of the notice blank.

This notice is clearly defective. By proceeding ex parte based on this defective notice, the trial court denied the defendants’ due process rights to notice and an opportunity to be heard. See Connell v. Capital City Partners, LLC, 932 So.2d 442, 443-44 (Fla. 3d DCA 2006).

Although we have no transcript of the hearing, the plaintiff, Riverbank Acceptance, Inc., represented in its written motion that “the answer and affirmative defenses admit the allegations of the complaint.” We must presume that the trial court relied on this representation in granting the motion for judgment on the pleadings.

In fact, the defendants’ answer affirmatively denied virtually every material allegation of the complaint. Among other things, the answer denied altogether that the defendants had entered into the claimed agreement. In ruling on a motion for judgment on the pleadings, the trial court must consider all allegations of the moving party which have been denied as false. Williams v. Howard, 329 So.2d 277, 280 (Fla.1976).

Here, it appears that the motion for judgment on the pleadings contained a misrepresentation of fact. It further appears that this misrepresentation was repeated to the trial court at the hearing to induce the granting of the motion. Accordingly, we reverse the trial court’s entry of judgment on the pleadings and remand for further proceedings.

Reversed and Remanded.

SHAHOOD, C.J., FARMER and TAYLOR, JJ., concur.

      . Although this may be a matter which should be referred to the Florida Bar, we will simply remind counsel of his duty of candor towards the tribunal, which takes on even more importance when the opposing party does not appear for a hearing. See R. Regulating Fla. Bar 4-3.3(a)(1) (2006).


text:
    Joy SNEDDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2370.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

WARNER, POLEN and GROSS, JJ., concur.


text:
    Nancy L. MULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4464.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Nancy L. Mullís, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s dismissal of appellant’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, without prejudice to appellant filing a new timely motion which complies with the rule. Appellant must show, among other things, how her alleged mental state affected her ability to communicate with counsel and aid in her own defense. The grounds for her motion must be stated with particularity. See Spera v. State, 971 So.2d 754, 2007 WL 3196507 (Fla. Nov. 1, 2007).

SHAHOOD, C.J., WARNER and POLEN, JJ., concur.


text:
    GREENLIGHT FINANCIAL SERVICES, INC., dba GFS Wholesale, a California Corporation, Appellant, v. UNION AMERICA MORTGAGE, INC., Kenneth Crenshaw, The Kenneth Crenshaw Law Firm, P.A., and Anthony Parks, Appellees.
    No. 3D07-2099.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.

      Billbrough & Marks, P.A. and G. Bart Billbrough, for appellant.
    Kenneth Crenshaw; Anthony Parks; Anthony Accetta; Steven Stoler, Beverly Hills, CA, for appellees.
    Before GREEN, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

By way of a petition for writ of certiora-ri and/or mandamus, Greenlight Financial Services, Inc., d/b/a GFS Wholesale (“GFS”), seeks review of an order of dismissal of the discovery proceedings below for lack of jurisdiction. We, however, treat this as an appeal from a final order and reverse for the following reasons.

The proceedings below arose out of a pending California lawsuit between GFS and Union America Mortgage, Inc. (“Union”), and was brought pursuant to the Uniform Foreign Depositions Law (“UFDL”), which Florida has enacted at section 92.251, Florida Statutes (1985). As part of the California lawsuit, GFS sought to depose Kenneth Crenshaw, Esq., and Anthony Parks, two non-party Florida resident witnesses. The California court issued a commission for GFS to depose Crenshaw and Parks in Florida. Cren-shaw was served in Florida with a subpoena duces tecum for deposition.

After Crenshaw was served with process for his deposition duces tecum, he filed an objection and motion for protective order on grounds that the documents were irrelevant and subject to the attorney-client privilege in the Miami-Dade circuit court. On the day before the hearing on Cren-shaw’s objections and motion, Parks appeared, pro se, in the proceeding and also filed an objection to GFS’s subpoena duces tecum, or to Crenshaw’s, on the grounds that the documents sought to be produced were subject to an attorney-client privilege and would violate Parks’s right to privacy. At the hearing on the motion, the trial court did not address the merits of Cren-shaw’s objections, but instead entered an order requiring the production and filing of a privilege log for any documents claimed to be subject to the attorney-client privilege within seven days of the next scheduled hearing.

Thereafter, Crenshaw amended his motion for protective order and deleted his attorney-client privilege objection, but reiterated his earlier objection that the documents sought to be produced were irrelevant to the California proceeding. The court then specially set a hearing for the motions for protective order and discovery objections filed by Crenshaw and Parks.

Prior to this specially set hearing, Parks filed a motion to dismiss the proceedings before the court below for lack of jurisdiction on the grounds, among other things, that no Florida complaint or lawsuit had been filed pursuant to the Florida Rules of Civil Procedure. In the absence of a Florida lawsuit, Parks asserted, the trial court lacked jurisdiction to resolve the pending discovery disputes. The trial court granted the motion and directed GFS and the two Florida witnesses to the California court that issued the commission for a resolution of their discovery issues. GFS now seeks our review of this order of dismissal.

Under UFDL, as adopted by Florida in section 92.251, whenever a litigant desires to depose a witness residing in another state, that litigant must first secure the appointment of a commissioner from the court where the litigation originates. See Freedom, Newspapers, Inc., 507 So.2d at 1183. The foreign litigant may then apply to the court having personal jurisdiction over the witness for the process necessary to secure the attendance of the witness. Id (citing Travelers Indem. Co. v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980)). Florida’s UFDL specifically provides, in pertinent part, as follows:

(2) Whenever any mandate, writ or commission is issued out of any court of record in any other state, territory, district, or foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purposes of taking testimony in proceedings pending in this state.

(Emphasis added). This means that the court where the deposition actually takes place, in this case, Florida, enjoys all necessary powers of enforcement as if the action were taking place in Florida, and the laws of Florida govern any proceedings incident to the deposition. See Freedom Newspapers, Inc., 507 So.2d at 1184.

The trial court in this case, therefore, erred in its determination that it was without jurisdiction to entertain the discovery objections associated with the subject depositions in accordance with Florida law. The UFDA proceeding before the court below is essentially a separate action, distinct from, although ancillary to, the underlying cause of action pending in California. See America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 542 S.E.2d 377, 380 (2001); Warford v. Childers, 642 S.W.2d 63, 65 (Tex.App.1982). Indeed, only the court below has jurisdiction to enforce the Florida subpoena duces tecum at issue against this Florida non-party witness.

Accordingly, we reverse the under review and remand for further proceedings.

      . Fla. R.App. P. 9.030(b)(1), 9.110(a); See Florida Elections Comm’n v. Florida Educ. Ass'n-Quality Public Educ. Corp., 909 So.2d 383 (Fla. 1st DCA 2005); But see Freedom Newspapers, Inc. v. Egly, 507 So.2d 1180 (Fla. 2d DCA 1987)(order issued pursuant to the UFDL compelling a Florida Resident to comply with discovery authorized by a California court for use in proceedings pending in that state reviewable by certiorari).

      . Union subsequently named Parks in a third party claim in the California lawsuit, but there is no record evidence before us that he has formally appeared as a party, to date, in the California action. Parks has never, however, challenged the issuance or validity of the California commission for his deposition in Florida.

      .To date, no subpoena duces tecum for deposition has been served on Parks. The discovery issues involved in the proceeding below, therefore, solely involved Crenshaw.


text:
    FIRST RESPONSE GROUP, INC., Appellant, v. Ivan B. CASTRO and Ana H. Castro, Appellee.
    No. 3D07-1114.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2008.
    David S. Harris, for appellant.
    Ralph Ventura, for appellee.
    Before GREEN, SHEPHERD, and SALTER, JJ.
   PER CURIAM.

On the record before us, we cannot find that the order denying the appellant’s motion to vacate default and default judgment constitutes a gross abuse of discretion. See Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); Bailey v. Deebold, 351 So.2d 355 (Fla. 2d DCA 1977). We therefore affirm.

Affirmed.


text:
    Michael K. POSTELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3137.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Michael K. Postell appeals the trial court’s denial of his motion to withdraw plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(1). Mr. Postell argues that the trial court should have allowed him to withdraw his plea because, at sentencing, his attorney, the assistant state attorney, and the trial judge were all under the mistaken belief that due to the nature of his charges, he was not eligible for youthful offender treatment. We reverse and remand.

Mr. Postell pled guilty to four counts of kidnapping with intent to commit a felony (with a weapon), one count of kidnapping with intent to inflict bodily harm or terrorize (with a firearm), and one count of grand theft third-degree of a motor vehicle. In return, the State dismissed numerous other charges and agreed to make no sentencing recommendation to the court. During the sentencing hearing, defense counsel, Anthony Nace, argued for a downward sentencing departure based on Mr. Postell’s cooperation with law enforcement and his youth at the time of the crimes. He did not argue for-or suggest that Mr. Postell be considered for youthful offender treatment. The trial court declined to downwardly depart from the guidelines and sentenced Mr. Postell to concurrent terms of thirty years incarceration for each kidnapping offense and five years for grand theft.

Following his sentencing hearing, Mr. Postell filed a pro se motion to withdraw his plea. Mr. Postell was subsequently-appointed new counsel, who filed an amended motion to withdraw plea, contending that Mr. Postell’s plea was involuntary and manifestly unjust due to the ineffective assistance of counsel he received from Mr. Nace. In relevant part, the motion alleged that Mr. Nace told Mr. Postell prior to entering his pleas that the trial court had the discretion to sentence him as a youthful offender under section 958.04, Florida Statutes (2004), and then failed to argue for a youthful offender sentence because he had later mistakenly concluded that Mr. Postell was not eligible for such sentencing due to the nature of the charges.

At a hearing on the motion, Mr. Nace admitted that prior to the entry of the plea, he told Mr. Postell that he would argue for a youthful offender sentence. Assistant State Attorney Jeff Ashton testified that before Mr. Postell’s plea, he advised Mr. Nace that at least one of the charged offenses did not qualify for youthful offender treatment because it was a life felony. After speaking to Mr. Ashton about youthful offender treatment, Mr. Nace informed Mr. Postell of this development; however, Mr. Postell still wanted to go ahead with the plea. The trial court subsequently denied Mr. PostelPs motion to withdraw plea. In pertinent part, the trial court concluded that Mr. Postell did not suffer manifest injustice by Mr. Nace’s failure to argue for a youthful offender sentence because “youthful offender sentencing is not available for the life felony to which [he] pled.”

Section 958.04, Florida Statutes, governing the judicial disposition of youthful offenders, authorizes, in the trial court’s discretion, the imposition of a sentence of no more than six years’ imprisonment for qualifying defendants who meet its enumerated criteria. Specifically, section 958.04(1), Florida Statutes (2004), provides:

(1) The court may sentence as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 985;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony if such crime was committed before the defendant’s 21st birthday; and
(c) Who has not previously been classified as a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be sentenced as a youthful offender under this act.

(Emphasis added). It is undisputed that Mr. Postell (d/o/b 10/24/1984) met the age requirement for a youthful offender sentence. What caused the confusion here was the mistaken belief that at least one of Mr. Postell’s offenses was a life felony.

Section 787.01(2), Florida Statutes (2004), provides that “[a] person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.” Authorization of imprisonment for “a term of years not exceeding life” is not the same as a “life felony.” McNeil v. State, 438 So.2d 178, 178-79 (Fla. 1st DCA 1983). The State correctly concedes that none of Mr. Postell’s crimes were life felonies as the trial court concluded. The State also concedes that Mr. Postell’s crimes were not subject to a mandatory enhancement to life felonies under section 775.087, Florida Statutes.

Florida courts have considered several cases in which the parties and the sentencing judge proceeded with sentencing under the mistaken belief that a youthful offender sentence was not an option. In each of those cases, the appellate court reversed and remanded for consideration, within the trial court’s discretion, whether to apply a youthful offender sentence. See, e.g., Ruth v. State, 949 So.2d 288 (Fla. 1st DCA 2007) (remanding sentence for consideration of youthful offender sentence when trial court incorrectly ruled that original sentencing court lacked discretion to sentence defendant as youthful offender); Simpkins v. State, 784 So.2d 1203 (Fla. 2d DCA 2001) (reversing sentence and remanding for resentencing in light of trial court’s discretion to impose youthful offender sentence when parties and court proceeded under mistaken belief that defendant was charged with life felony, and, therefore, youthful offender sentence did not apply); Holmes v. State, 638 So.2d 986 (Fla. 1st DCA 1994) (vacating and remanding sentence for consideration of whether to apply youthful offender sentence when trial court erroneously believed such a sentence was not available); McNeil, 438 So.2d 178 (holding that trial court reversibly erred in failing to consider whether defendant should be classified as youthful offender based on mistaken belief that he had been sentenced to life felony).

Because a youthful offender sentence was never considered by the trial court, we reverse the order on review and remand for further proceedings. On remand, the trial court should reconsider Mr. Postell’s motion to withdraw his plea or treat it as a motion to correct sentence and conduct a de novo sentencing hearing with consideration, in the trial court’s discretion, of youthful offender treatment. We do not suggest Mr. Postell is necessarily entitled to resentencing as a youthful offender; rather, he is entitled to be sentenced at a proceeding at which the trial court is fully informed of its discretion.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . §§ 787.01(l)(a)(2), 775.087(1), (2), Fla. Stat. (2004).

      . §§ 787.01(l)(a)(3), 775.087(1), (2), Fla. Stat. (2004).

      .§ 812.014(2)(c)(6), Fla. Stat. (2004).

      . Under the "mailbox” rule, Mr. Postell's motion was filed within thirty days of sentencing.

      . Section 775.087 mandates the reclassification of a first-degree felony to a life felony when, during the commission of the felony, "the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery," so long as the use of a weapon or firearm is not an essential element of the felony. § 775.087(l)(a), Fla. Stat. (2004). However, "when a defendant is charged with a felony involving the 'use' of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992); see Parker v. State, 906 So.2d 1273 (Fla. 5th DCA 2005); Blanc v. State, 899 So.2d 455, 457 (Fla. 4th DCA 2005). No such evidence was presented here.

      . “The decision whether to sentence a defendant as a youthful offender is discretionary with the trial court.” Simpkins v. State, 784 So.2d 1203, 1204 (Fla. 2d DCA 2001). "[T]he lower court is under no obligation to sentence [a defendant] under the Youthful Offender Act unless the lower court believes such a sentence would be appropriate.” Holmes v. State, 638 So.2d 986 (Fla. 1st DCA 1994). "It is not an abuse of discretion for a trial court, after reviewing the criteria, to decline to sentence a statutorily qualified person as youthful offender.” Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998).


text:
    Ronald M. BROOKE, Appellant, v. UNIVERSITY OF CENTRAL FLORIDA, Appellee.
    No. 5D06-1808.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    Ronald M. Brooke, Orlando, Pro Se.
    Brenna M. Durden and Melissa Gross-Arnold, of Lewis, Longman & Walker, P.A., Jacksonville; and W. Scott Cole, Orlando, for Appellee.
   PER CURIAM.

Ronald M. Brooke appeals a final administrative order, which (1) determined that Mr. Brooke’s amended petition, which challenged the University of Central Florida’s 2005-2015 Campus Master Plan (“2005 CMP Amendment”), was not timely filed; (2) found that the 2005 CMP Amendment and the 2005 Stadium Amendment comply with the requirements of section 1013.30, Florida Statutes (2005), and Florida Administrative Code Rule 6C-21; and (3) ■ denied Mr. Brooke’s motion for attorney’s fees and costs. On appeal, Mr. Brooke raises various challenges to the final administrative order. We affirm.

This Court may not substitute its judgment for that of the agency in assessing the weight of the evidence for resolving disputed issues of fact. See § 120.68(10), Fla. Stat. (2005). Rather, we may set aside agency action only when we find that the action is dependent on any finding that is not supported by competent, substantial evidence of the record, a material error in procedure, an incorrect interpretation of law, or an abuse of discretion. § 120.68(7), Fla. Stat. (2005); see Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982 (Fla.1996); Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002). Having carefully reviewed the record and the detailed order prepared by the Administrative Law Judge, we find no basis to reverse the challenged order. Accordingly, we affirm.

AFFIRMED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    Willie QUARTERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-223.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Willie Lee Quarterman [“Defendant”] timely appeals his conviction for manslaughter. We affirm.

There is no merit to any of the issues raised on appeal. The refusal to instruct the jury on self defense was not error. Even if there were enough evidence from which a jury could conclude that Defendant reasonably believed that his victim intended him death or great bodily harm, no evidence was presented to show that Defendant made any attempt to retreat or that he made any effort to escape the perceived danger. Thomas v. State, 918 So.2d 327, 330 (Fla. 1st DCA 2005). Nor did the trial court err in excluding evidence of victim’s drug abuse, because Defendant did not show that it was relevant to any issue in the case or necessary to rebut any misleading evidence in the State’s case.

AFFIRMED.

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


author: MONACO, J.

text:
    Karon Dawarren DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-968.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

Because the written sentence rendered by the trial court with respect to count IV does not conform to the oral pronouncement, we reverse the sentence as to that count and remand to the trial court for entry of a written sentence that is consistent to that announced orally. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). The appellant’s presence is not required for the correction indicated because the requirements of the trial court are ministerial only. See McGough v. State, 876 So.2d 26 (Fla. 1st DCA 2004). Except as indicated, the remainder of the judgment and sentence is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

PLEUS and EVANDER, JJ., concur.


text:
    J.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2268.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.

      James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

J.S. appeals from a disposition order entered after he pled guilty to the charge of possession of a firearm on school property. The Department of Juvenile Justice, (“DJJ”), recommended probation, but the trial court committed J.S. to a moderate risk residential program after the State requested it. We agree with J.S. that the trial court abused its discretion by departing from the DJJ’s recommendation without articulating sufficient reasons for departure. Accordingly, we reverse.

It is well-established that a trial judge may disregard the DJJ’s recommendations under section 985.433(7)(b), Florida Statutes (2007), but must state reasons for doing so that make reference to the characteristics of the restrictiveness level and the needs of the child. E.g., D.L.T. v. State, 960 So.2d 913 (Fla. 1st DCA 2007); L.R. v. State, 948 So.2d 827 (Fla. 2d DCA 2007); G.L. v. State, 937 So.2d 801 (Fla. 5th DCA 2006); K.M. v. State, 891 So.2d 619 (Fla. 3d DCA 2005); S.L.K. v. State, 776 So.2d 1062 (Fla. 4th DCA 2001); see generally 16 Fla. Prac., Sentencing § 9.12 (2008 ed.). The trial court cannot depart merely because it disagrees with the DJJ’s recommendation. G.L., 937 So.2d at 803. If the trial court fails to make specific findings to support its determination and disregards the DJJ’s recommendations without sufficient reasons supported by a preponderance of the evidence, or there is no record evidence that the court considered the DJJ’s pre-disposition report, (“PDR”), this court must reverse and remand. Id. Further, the seriousness of the charge is not a sufficient reason to depart from the DJJ’s recommendation. E.g., A.S. v. State, 948 So.2d 895 (Fla. 5th DCA 2007).

In the instant case, although it appears the trial court considered the PDR and the DJJ’s recommendation, the reasons articulated by the court for its disposition simply demonstrate the trial judge’s disagreement with the recommendation, and in no way referenced the commitment level with respect to J.S.’ needs. In fact, the trial judge candidly stated that he did not know what a moderate risk residential program offered, but “assumed” that J.S. would benefit from a commitment, and that “hopefully” J.S. would get whatever evaluation, counseling or education the DJJ could provide or allow.

Accordingly, we must reverse the trial court’s disposition order and remand for a new disposition hearing. The trial court must either follow the DJJ’s probationary recommendation or articulate a legally valid basis for departure from the recommendation.

REVERSED and REMANDED.

THOMPSON, TORPY, and LAWSON, JJ., concur.

      . § 790.115, Fla. Stat. (2006).


text:
    Mark NELMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2432.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.
    Mark Nelms, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm the order of the trial court dismissing Appellant’s petition for a writ of habeas corpus. Although Appellant is incarcerated in Lake County of the Fifth Judicial Circuit, his conviction and sentence arise from a proceeding in Palm Beach County of the Fifteenth Judicial Circuit. Because his petition is directed to trial issues, it must be brought in the circuit for the county where the trial occurred. Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006); Sheriff v. Moore, 781 So.2d 1146 (Fla. 1st DCA 2001). The trial court in Palm Beach County erroneously transferred Appellant’s petition to Lake County. Appellant should have appealed that erroneous order to the Fourth District Court of Appeal, not this Court.

AFFIRMED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    Alfredo ROCA-MORENO, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3261.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.

      Alfredo Roca-Moreno, III, Chipley, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Defendant, Alfredo Roca-Moreno, III, appeals the denial of his rule 3.850 motion. This court entered an order to show cause why his appeal should not be dismissed because his notice of appeal was untimely. He responds that although he filed a timely motion for rehearing, the clerk of the trial court advised him that they had not received any such motion. Mr. Roca-Mor-eno has provided us with a copy of what appears to be a timely motion for rehearing that would have tolled the time for fifing a notice of appeal.

Regardless, this appeal must still be dismissed as untimely. The dismissal, however, is without prejudice to the fifing of a petition for belated appeal that is under oath and that complies with Florida Rules of Appellate Procedure 9.141(c). Although the rule does not require it, if Mr. Roca-Moreno again provides documentation to establish that he filed an earlier, timely motion for rehearing, which was somehow overlooked due to the State’s actions, it would facilitate his request for a belated appeal. See Thomas v. State, 905 So.2d 1037, 1038 (Fla. 5th DCA 2005), citing Latimore v. State, 696 So.2d 1290 (Fla. 4th DCA 1997) (stating defendant entitled to belated appeal when his right to appeal has been frustrated by the circuit court clerk’s “state action”).

DISMISSED without prejudice.

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Jerry M. ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3339.
    District Court of Appeal of Florida, Fifth District.
    Jan. 4, 2008.

      Jerry M. Ervin, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jerry M. Ervin appeals from the denial of his Florida Rule of Criminal Procedure 3.800(a) motion, seeking additional jail credit. Ervin is currently serving a 19.5 month prison sentence, imposed after he violated his probation (“VOP”) for a second time on the charge of false imprisonment. In its order denying relief, the trial court states that Ervin has been awarded credit for time served “from the date of arrest on [his] most recent VOP only,” and concludes: “That is all the credit he is entitled to receive.” No part of the record is attached to the order, and no further explanation is given for the denial.

Generally, a court imposing sentence must “allow a defendant credit for all of the time she or he spent in the county jail before sentence.” § 921.161(1), Fla. Stat. (2007) (emphasis added). Therefore, if a defendant spent time in a county jail for more than one VOP on the same charge before imposition of a prison sentence, the credit for time served awarded at sentencing must include credit for all time spent in jail for each VOP, plus any additional jail time served prior to imposition of the initial probationary sentence. Griffin v. State, 828 So.2d 1087 (Fla. 1st DCA 2002).

For this reason, the State properly concedes that the order on appeal must be reversed. However, the State notes that online records from the Lake County clerk indicate that Ervin may have waived jail credit for the first violation of probation. The State acknowledges that it would have the burden to clearly establish a waiver of time served, Briggs v. State, 929 So.2d 1151 (Fla. 5th DCA 2006), but notes that it was not given an opportunity to respond to Ervin’s motion below before the trial court entered its order.

Accordingly, we reverse the order on appeal and remand with directions that the trial court allow the State an opportunity to respond to Ervin’s motion, and then either support its denial with record attachments or grant the relief sought.

REVERSED and REMANDED.

THOMPSON, SAWAYA, and LAWSON, JJ., concur.