text:
    Patrick WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2918.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this Anders appeal Patrick Williams challenges the judgment and sentence imposed following his guilty plea to a violation of probation. After sentencing, Williams filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), contending that sentencing him under the Jessica Lunsford Act (“the Act”) was unconstitutional and therefore illegal. We affirm his judgment and sentence, but we remand for deletion of certain language in the sentencing documents.

Williams was adjudicated guilty on September 2, 1992, after pleading guilty to four counts of attempted sexual battery and one count of committing a lewd and lascivious act, all involving a victim less than twelve years of age. He was sentenced to thirty years in prison for each of the sexual battery counts, suspended after twenty-five years and followed by five years of probation. For the other count, he was sentenced to fifteen years in prison, suspended after ten years and followed by five years of probation. All prison sentences were to be served concurrently.

Williams was released in 2002 after serving only ten years. On May 22, 2006, he pleaded guilty to a probation violation, and the trial court revoked the probation and sentenced him to terms of twenty years each for the four counts of attempted sexual battery and fifteen years for the lewd and lascivious act, all time to be served concurrently. He was given credit for time served, and the sentence did not include probation. The sentence was lawful. Crews v. State, 779 So.2d 492 (Fla. 2d DCA 2000).

The sentencing documents provided that Williams was sentenced under the Act. The Act became effective September 1, 2005, and established, among other things, increased registration and reporting requirements for probationers who are designated sexual predators, as defined by the Florida Sexual Predators Act, section 775.21, Florida Statutes (1993). The Florida Sexual Predators Act took effect after Williams’ convictions in this case. See Ch. 93-277, § 1, Laws of Fla. Williams therefore cannot be a designated sexual predator under that section since it was nonexistent at the time he was convicted in 1992. Therrien v. State, 914 So.2d 942 (Fla.2005). Since Williams cannot be designated a sexual predator and the Act only applies to someone who is designated as a sexual predator, he cannot be sentenced “under” the Act, and the reference to the Act in the sentencing documents should be stricken.

We therefore remand this matter to the trial court for deletion of any reference to the Jessica Lunsford Act. We affirm in all other respects.

Affirmed and remanded with instructions.

DAVIS and VILLANTI, JJ., and THREADGILL, EDWARD F, Senior Judge, Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Chapter 2005-28, Laws of Fla.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Roger Natale TRISOTTO, Sr., Appellant, v. Elaine Suddeth TRISOTTO, Appellee.
    No. 5D06-1724.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.

      Linda D. Schoonover, of Linda D. Schoonover, P.A., Lake Mary, for Appellant.
    Wade P. Luther, of The Law Offices of Wade P. Luther, P.A., Orlando, for Appel-lee.
   ORFINGER, J.

The former husband, Roger N. Trisotto, Sr., appeals several post-dissolution orders. Specifically, Mr. Trisotto contends that the trial court erred by: (1) denying his request for a downward modification of his permanent alimony obligation; (2) finding him in contempt of court for failing to pay alimony as required; (3) awarding attorney’s fees and costs to the former wife, Elaine Trisotto; and (4) issuing a restraining order against him and his current wife.

We affirm the trial court’s order denying Mr. Trisotto’s request for a downward modification of his permanent alimony obligation. Although the evidence as to why Mr. Trisotto’s income was reduced was in conflict, there is competent, substantial evidence to support the trial court’s conclusion that Mr. Trisotto’s income reduction was neither permanent nor involuntary. See, e.g., Ferguson v. Ferguson, 921 So.2d 796, 797 (Fla. 5th DCA 2006) (reiterating that to modify an award of alimony, petitioner must show substantial change in circumstances, not contemplated at the time of the divorce judgment, which is sufficient, material, involuntary, and permanent in nature).

With respect to the contempt order, we affirm that part of the order determining the alimony arrearage to be $14,092.92, as the record contains competent, substantial evidence supporting that conclusion. However, the order fails to include a finding that Mr. Trisotto willfully failed to comply with his alimony obligations despite having the financial ability to do so as required by Florida Family Law Rule of Procedure 12.615(d)(1). See also Bresch v. Henderson, 761 So.2d 449, 450-51 (Fla. 2d DCA 2000). Accordingly, on this issue, we reverse for the limited purpose of allowing the trial court to enter an order in compliance with rule 12.615(d)(1).

We dismiss as premature Mr. Trisotto’s appeal of the order determining that his former wife is entitled to attorney’s fees and costs in connection with this litigation. The trial court’s order found that the former wife was entitled to fees, but did not determine the amount. Accordingly, the appeal of this order is premature and must be dismissed. Lasco Enters., Inc. v. Kohlbrand, 819 So.2d 821, 827-28 (Fla. 5th DCA 2002).

However, we agree with the former husband that the trial court erred when it entered a restraining order against his current wife. A court is without jurisdiction to issue an injunction that interferes with the rights of those who are not parties to the action. Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579, 583 (Fla. 5th DCA 2003). Here, the former husband’s current wife was not a party to the litigation or served with process. Accordingly, the injunction as to her must be vacated.

Finally, Mr. Trisotto appeals an additional order adjudicating him in civil contempt for failure to pay alimony and ordering a thirty-day incarceration with a $2,500 purge condition. This order failed to provide a factual basis for its finding that Mr. Trisotto had the present ability to pay the $2,500 purge condition, as required by rule 12.615(e). Accordingly, the order is vacated so that the court may, on remand, make the appropriate findings.

AFFIRMED in part, REVERSED in part, DISMISSED in part, and REMANDED.

PLEUS and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    Ronald L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-564.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.
    Wayne Fetzer Henderson, St. Augustine, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   EVANDER, J.

Appellant, Ronald Brown, was charged with felony murder and carjacking with a firearm. The jury returned a verdict of guilty on the lesser-included offense of manslaughter with a firearm and not guilty on the carjacking charge. Brown subsequently filed a motion for arrest of judgment, motion for judgment of acquittal, and motion for new trial. He contended, inter alia, that the manslaughter conviction was legally inconsistent with the carjacking acquittal and, therefore, the manslaughter conviction must be set aside. The trial court denied Brown’s motions. We affirm.

At trial, the State presented evidence that Chris Sampson, Herbert Manago, Jr., Adrian Nelson and Brown drove from Tampa to Daytona Beach for Black College Reunion. . During the evening, they pulled into a Burger King parking lot. A shiny, metallic blue Crown Victoria with Sponge Bob stickers pulled into the adjacent parking lot. The “Sponge Bob” vehicle was occupied by Ronald King, Donnell King, Amanda Johnson, and Mandy Gad-dis. The four men decided to steal the “Sponge Bob” car. The quickly formulated plan called for Manago, who had a gun, to force the vehicle’s occupants out of the car and for Nelson to drive the “Sponge Bob” car away. Sampson was to drive the four men’s vehicle back to Tampa. Brown was present during the discussion, including that part of the discussion in which Manago stated that he had a gun.

Ronald King was away from the car when Nelson jumped into the driver’s seat. Amanda Johnson was sitting in the front passenger seat. Donnell King and Mandy Gaddis were in the backseat with Donnell King sitting directly behind the driver’s seat. The keys were in the ignition. As soon as Nelson got in the car, Donnell King began to struggle with Nelson from his position in the backseat. Nelson yelled at Amanda Johnson to get out of the car. Johnson refused. At this time, Brown, who had been observing the events through the front passenger window, opened the passenger door and pulled Johnson out of the car. Immediately after Brown pulled Johnson from the car, Mana-go fatally shot Donnell King. Brown and Manago fled. Nelson drove the car a short distance before jumping out of the car and attempting to flee as well. ' Brown later told police officers that he knew Man-ago had a gun because of the way Manago was “jacking” Donnell King.

Brown objected to the trial court instructing the jury on any lesser-included offenses. The trial court overruled these objections. As to the first degree felony murder count, the jury was instructed on the lesser-included offenses of second degree murder, manslaughter with a firearm, and manslaughter. As to the carjacking with firearm charge, the jury was instructed on the lesser-included offenses of carjacking and theft of a motor vehicle. Significantly, the jury was also given the “principal” instruction. The jury was advised that Brown would be a principal if he assisted another person or persons in committing a crime and if 1) he had a conscious intent that the criminal act be done, and 2) he did some act or said some word that was intended to, and did, incite, cause, encourage, assist or advise the other person or persons to actually commit the crime. Brown has not raised the propriety of the jury instructions as an issue on appeal.

Brown contends that a guilty verdict for manslaughter with a firearm as a lesser crime of first degree felony murder is legally inconsistent with an acquittal on the felony murder’s underlying charge, carjacking with a firearm. We disagree. As a general rule, inconsistent verdicts are permitted in Florida because jury verdicts can be the result of lenity and, therefore, do not always speak to the guilt or innocence of the defendant. State v. Connelly, 748 So.2d 248, 252 (Fla.1999). Inconsistent verdicts may arise from a jury’s exercise of its “inherent authority to acquit” even if the facts support a conviction. Id. at 253.

The Florida Supreme Court has recognized only one exception to the general rule allowing inconsistent verdicts: “This exception, referred to as the ‘true’ inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent.” Fayson v. State, 698 So.2d 825, 827 (Fla.1997). The rationale for this exception is that the possibility of a wrongful conviction in such cases outweighs the rationale for allowing the verdicts to stand. State v. Powell, 674 So.2d 731, 733 (Fla.1996).

In the present case, there are no elements of manslaughter with a firearm that are negated by an acquittal on the carjacking charge. Thus, the crimes are not “legally interlocking.” The jury was instructed that Brown could be found guilty of manslaughter if Donnell King’s death was caused by Brown’s culpable negligence. § 782.07(1), Fla. Stat. (2004).

Brown contends that any “culpable negligence” on his part would relate solely to his alleged involvement in the carjacking. Therefore, Brown argues, his acquittal on the carjacking charge would be legally inconsistent with a finding of the “culpable negligence” element of manslaughter. We find it unnecessary to address this issue. The evidence in this case would have been sufficient to support a second degree murder conviction against Brown even if the jury concluded that he had no intent to participate in the theft of the “Sponge Bob” car. Manago’s act of using a gun while “jacking” Donnell King certainly constituted “an act imminently dangerous to another and evincing a depraved mind regardless of human life.” § 782.04(2), Fla. Stat. (2004); see also State v. Bryan, 287 So.2d 73 (Fla.1973); Presley v. State, 499 So.2d 64 (Fla. 1st DCA 1986). To establish that Brown was a principal to the murder of Donnell King, the State was required to prove that he had the intent that the crime against Donnell King be committed and that he did some act to assist in the commission of the crime. Staten v. State, 519 So.2d 622 (Fla.1988). Here, Brown was aware that Manago had a gun and would use the gun in an attempt to remove passengers from the “Sponge Bob” vehicle. Brown assisted Manago by pulling Amanda Johnson out of the vehicle. This act also facilitated Manago’s efforts to remove Donnell King from the car by preventing Ms. Johnson from being in a position to possibly assist King. Thus, the evidence would have been sufficient to support a conviction against Brown for second degree murder.

Having sufficient evidence to convict Brown of second degree murder, the jury could then have permissibly exercised its “pardon” power by acquitting him of the greater offense of second degree murder and convicting him of the lesser offense of manslaughter with a firearm. See State v. Wimberly, 498 So.2d 929, 932 (Fla.1986); Legette v. State, 718 So.2d 878, 880 (Fla. 4th DCA 1998). Accordingly, Brown’s conviction for manslaughter with a firearm and his acquittal on the carjacking offense do not reflect true inconsistent verdicts.

We find the Florida Supreme Court’s recent decision in Brown v. State, 959 So.2d 218 (Fla.2007), does not require a different result. In Brown, the defendant was charged with armed robbery and first degree felony (robbery) murder in the shooting death of a participant in a drug deal whose wallet the defendant and two co-perpetrators were attempting to steal. The jury found the defendant guilty of petit theft as a lesser-included offense of the armed robbery charge and guilty of first degree felony murder. The defendant argued the verdicts were legally inconsistent. The supreme court agreed. The court found that a defendant’s conviction for felony murder and for. the lesser-included misdemeanor of the separately charged underlying felony were true inconsistent verdicts.

The Brown case is readily distinguishable because the jury, in that case, returned a guilty verdict for felony murder, thereby requiring a finding that the defendant was perpetrating or attempting to perpetrate one of the felonies ■ listed in section 782.04(l)(a), Fla. Stat. Unlike felony murder, a conviction for second degree murder or manslaughter does not require proof that the defendant was engaged in the perpetration of, or in the attempt to perpetrate, one of the enumerated felonies. The other'issue raised on appeal is without merit.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


author: MONACO, J.

text:
    SONUS-USA, INC., Appellant, v. THOMAS W. LYONS, INC. f/k/a Gulf Atlantic, etc., Appellee.
    No. 5D07-1541.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2007.
    Mary Ruth Houston and Glennys Ortega Rubin of Shuts & Bowen, LLP, Orlando, for Appellant.
    Michael R. Riemenschneider and William H. Cantwell, II of O’Brien, Riemen-schneider, Wattwood & Cantwell, P.A., Melbourne, for Appellee.
   MONACO, J.

We are once again confronted with the issue of whether a forum selection clause contained in a contract is mandatory or permissive. Because we view the clause used by the parties in the present ease as mandatory, we reverse the order of the trial court declining to dismiss the case for improper venue.

In a nutshell, the appellant, Sonus-USA, Inc., and the appellees, Thomas W. Lyons, Inc., f/k/a Gulf Atlantic Hearing Aids, Inc., Michael R. Riemenschneider, and William H. Cantwell, II (collectively, “Lyons”), entered into a contract containing the following clause:

Any controversy relating to this agreement or any modification or extension of it and any proceeding relating thereto shall be held in Minneapolis, Minnesota. The parties hereby submit to jurisdiction for any enforcement of this agreement in Minnesota.

A dispute arose between the parties, and Lyons brought suit in the Circuit Court of Brevard County. Sonus-USA moved to dismiss the complaint for improper venue, but its motion was denied. Following the denial of its motion for rehearing, Sonus-USA appealed. As this is an appeal of a non-final order relating to venue, we have jurisdiction pursuant to rule 9.130(a)(3), Florida Rules of Appellate Procedure. We use a de novo standard in reviewing this issue. See Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231, 1234 (Fla. 5th DCA 2004).

Florida law authorizes parties to stipulate in their contract to the forum, venue and law that will be used to interpret and enforce their contract. See Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986). As we have said on a number of occasions, if a forum selection clause “unambiguously” mandates that litigation be subject to an agreed upon forum, then it is reversible error for the trial court to ignore the clause. See, e.g., Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1081 (Fla. 5th DCA 2003).

The general test for determining whether a clause is mandatory or permissive is the use by the parties of language indicating “exclusivity.” Golden Palm Hospitality, 874 So.2d at 1236. “Absent such language, the clause will be considered permissive.” Id. If the forum selection clause “state[s] or clearly indicated] that any litigation must or shall be initiated in a specified forum,” then it is mandatory. Shoppes L.P. v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002). If, on the other hand, a venue clause is determined to be permissive, then it is “nothing more than a consent to jurisdiction and venue in the named forum and do[es] not exclude jurisdiction or venue in any other forum.” Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc, 894 So.2d 288, 289 (Fla. 3d DCA 2005); see Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273, 274-75 (Fla.1987).

In the present case there is nothing permissive about the language. It says that any proceeding relating to a controversy concerning the agreement, “shall be held in Minneapolis, Minnesota.” The use of the word “shall” in the document is clearly “indicative of a mandatory provision rather than one that is permissive.” Golden Palm Hospitality, 874 So.2d at 1236; see also Garcia Granados Quinones, 509 So.2d at 273-74. To make it even more certain, the parties then said that they submitted themselves to the jurisdiction of Minnesota for enforcement of the agreement. The language, we believe, is mandatory.

Lyons contends that the word “submit” connotes consent; thus, making the sentence, “The parties hereby submit to the jurisdiction for any enforcement of this Agreement in Minnesota,” permissive. That view is strained.

First, the language of the initial sentence of the provision unquestionably says that contractual disputes “shall” be held in Minnesota. This is the specific language that makes jurisdiction in Minnesota mandatory. The following sentence in the provision only serves to confirm that when suit is brought in Minnesota, there will not be a fight about whether the opposing party is required to defend there.

Secondly, given its normal usage, the word “submit,” as used in the provision in question, makes manifest that the forum selection provision is mandatory. “Submit” is an intransitive verb meaning:

1. To yield to the opinion or authority of another; give in.
2. To allow onseself to be subjected; acquiesce.

The American Heritage Dictionary 1212 (Second College Ed.1982). If one applies the dictionary meaning of the word, the language means that parties here not only agreed to file their claims in Minnesota, they have also “yielded” or “subjected themselves” to the jurisdiction of the courts of Minnesota. Thus, the dictionary definition, as well as the context in which the word is used in the clause, demonstrate that the provision is mandatory. While Lyons suggests that the cases of Sauder v. Rayman, 800 So.2d 355 (Fla. 4th DCA 2001), and Dataline Corp. v. L.D. Mullins Lumber Co., Inc., 588 So.2d 1078 (Fla. 4th DCA 1991), indicate that the use of “submit” demonstrates that the clause is permissive and not mandatory, a review of the forum selection clauses in those cases confirms that while the word “submit” is found in each of those clauses, it was simply not determinative of the result. When considered as a whole, the language selected by the parties in this case is mandatory.

Accordingly, we reverse the denial by the trial court of the motion of Sonus-USA to dismiss for improper venue, and remand for entry of an order dismissing the present cause.

REVERSED AND REMANDED.

SAWAYA and LAWSON, JJ., concur.


author: PALMER, C.J.

text:
    E.D., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2905.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2007.

      David W. Veliz of David W. Veliz, P.A., Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Respondent.
   PALMER, C.J.

E.D., a juvenile, petitions this court seeking a writ of habeas corpus based upon the claim that he has been held in secured detention for more than 21 days in violation of section 985.26(2) of the Florida Statutes (2006). Determining that the trial court did not err in concluding that the State demonstrated good cause for the continued detention, we deny E.D’s petition.

On July 25, 2007, E.D. was detained on charges of burglary of a dwelling, petit theft, and criminal mischief. A trial was set for August 14, 2007, a date within the 21 days for secured detention provided by section 985.26(2) of the Florida Statutes. On August 14, 2007, the State orally requested a continuance because it was not prepared to proceed to trial. The trial court granted that motion. E.D. then filed a Motion to Release the Child from Detention, arguing that good cause for the continuance had not been shown as required by section 985.26(4). After conducting a hearing, the trial court denied the motion. E.D. then filed the instant petition seeking habeas corpus relief in our court.

The mere granting of a continuance by the trial court does not establish “good cause” for purposes of the juvenile detention statute. In J.B. v. Lumpee, 450 So.2d 1286 (Fla. 2d DCA 1984), the district court held that a finding of good cause must be predicated on a record containing competent evidence of the reasons for continuing the detention period. In B.G., C.W. & B.O. v. Fryer, 570 So.2d 430 (Fla. 4th DCA 1990), the district court held that even though the trial court had granted a motion for continued detention for good cause, the order was granted pursuant to a conclusory motion without competent evidence to support its conclusory claims. Accordingly, good cause had not been shown for continuing the juveniles’ detention beyond 21 days. Similarly, in E.W. v. Brown, 559 So.2d 712 (Fla. 1st DCA 1990), the court held that merely parroting the language of good cause in a motion, without supporting competent evidence or specificity, did not constitute good cause for continued detention.

Accordingly, if the State had relied merely on conclusory statements to support its motion for continuance, the granting of that motion would not have entitled the State to continue E.D.’s detention beyond 21 days. However, the record in this case reveals a different situation.

When the prosecutor orally moved for a continuance, he simply indicated he did not have a chance to subpoena witnesses and, therefore, he needed additional time. However, at a later hearing held on the motion to release E.D. from detention, the trial court indicated that the basis of the earlier continuance was the fact that the property which was the subject of the alleged burglary had been subject to a probate proceeding and the State had difficulty locating and contacting the victim of the crime and, accordingly, the victim was unavailable for trial on the original trial date. Although the transcript of the earlier hearing does not reveal these facts, defense counsel acknowledged at the latter hearing that these facts were indeed the basis of the continuance. With these additional facts, the reasons given by the State for the continuance constitute good cause sufficient to allow E.D.’s continued detention.

PETITION DENIED.

PLEUS and GRIFFIN, JJ., concur.

      . Section 985.26(2) of the Florida Statutes (2006) provides:
      985.26 Length of detention.—

      (2) A child may not be held in secure, nonsecure, or home detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has been commenced in good faith by the court.

      . Section 985.26(4) of the Florida Statutes (2006) provides:
      985.26 Length of detention.—
      ⅜ ⅜ *
      (4) The time limits in subsection (2) and (3) do not included periods of delay resulting from a continuance granted by the court for cause on motion of the child or his or her counsel or of the state.


author: PER CURIAM.

text:
    Wilson J. LOPEZ-VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3769.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.

      James S. Purdy, Public Defender and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Wilson J. Lopez-Vasquez, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

In this appeal conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm, but remand for entry of an amended judgment or order. In a previous appeal, this court, finding a double jeopardy violation, remanded for the trial court to vacate “one of the shooting convictions.” Lopez-Vazquez v. State, 931 So.2d 231, 236 (Fla. 5th DCA 2006). On remand, the trial court vacated the conviction and sentence for shooting from a vehicle in count III. However, the court did not enter an amended judgment or an order reflecting that count III had been vacated, but only memorialized its ruling by making a handwritten notation on the scoresheet.

We agree with the public defender that appellant is entitled to an amended judgment or order reflecting that he has been adjudicated guilty of two rather than three felonies in the instant case. See Blake v. State, 873 So.2d 1259, 1261 (Fla. 1st DCA 2004) (“Appellant is entitled to correction of the judgment to reflect Appellant’s correct misdemeanor offense.”); Poole v. State, 777 So.2d 1186, 1187 (Fla. 5th DCA 2001) (defendant “correctly insists that he is entitled to an accurate 1994 score-sheet”); Davis v. State, 529 So.2d 1251, 1252 (Fla. 5th DCA 1988) (defendant “entitled to have the record set straight even if there is little possibility that the total time actually spent in jail will be affected”).

We further find that appellant’s sentence for count I, which was corrected pursuant to a Rule 3.800(b)(2) motion, is now consistent with our opinion in Yasin v. State, 896 So.2d 875 (Fla. 5th DCA 2005).

Accordingly, we affirm but remand for entry of an amended judgment or order reflecting that count III has been vacated.

SAWAYA, ORFINGER and EVANDER, JJ., concur.


text:
    Kyle Gerard JOYNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3837.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2007.
    Refik W. Eler, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General; Heather Flanagan Ross and Thomas Wi-nokur, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about April 30, 2007, in Duval County Circuit Court case number 16-2004-CF-8476-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

PETITION GRANTED.

BARFIELD, DAVIS, and LEWIS, JJ., concur.


text:
    Charlie BROWN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6394.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Charlie Brown, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Kevin Lamar FOUNTAIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4836.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Kevin Lamar Fountain, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Katrina Gainer SAILOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1309.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Katrina Gainer Sailor, pro se, Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Katrina Gainer Sailor is hereby afforded a belated appeal from judgment and sentence in case numbers 04-159, 05-415, 05-416, and 05-846 in the Circuit Court for Gadsden County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if she qualifies for such an appointment.

PETITION GRANTED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    George McGRIFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2523.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    George McGriff, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. All pending motions are denied as moot.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Samual GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3352.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Samual Graham, pro se, Appellant.

      Bill McCollum, Attorney General, Tallahassee for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of September 7, 2007, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Brendan and Lynne GRUBB, Carl Thomas, Rich Singer, Sea Suites, LLC, William Springer, Mark Dillenbech, Derek Hude, Ray Mauro, and Steve Manzone, Appellants, v. TREVISO BY THE SEA JOINT VENTURE, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D07-529.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.
    Dennis R. Bedard, Miami, for appellants.
    John J. Shahady of Adorno & Yoss LLP, Ft. Lauderdale, for appellee.
   PER CURIAM.

Appellants are long term lessees of apartments in a building owned by Treviso and, after Hurricane Katrina damaged the building, this suit was filed to determine whether Treviso could terminate the leases because of the extensiveness of the damage. The right to terminate depends on the amount of the “cost of replacement,” which is to be arbitrated under the lease.

There was no dispute about the need to arbitrate, and the trial court granted Tre-viso’s motion to compel arbitration. At a later hearing on a motion for payment of rent into the registry of the court, however, the court decided, on its own, that the building was unsafe and damaged in an amount which was more than fifty percent of the replacement cost. This would allow Treviso to terminate the lease. The trial court then vacated the arbitration order, and the lessees filed this appeal.

We reverse because, when this lease said that replacement cost “shall be determined by arbitration,” it meant exactly that. We have not overlooked Treviso’s arguments that there are other reasons to affirm, but conclude that it would be premature to consider them.

Reversed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Donna L. THOMAS, f/k/a Donna L. Fusilier, Appellant, v. Steven R. FUSILIER, Appellee.
    No. 5D07-2232.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.

      Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, and Linda K. Phipps, Winter Park, for Appellant.
    Lauren C. Heatwole and Rebecca L. Palmer of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appel-lee.
   EVANDER, J.

The former wife appeals from a trial court order denying her motion to enforce a marital settlement agreement. The trial court found that the former wife was not entitled to receive a $250,000.00 equitable distribution payment because she was twelve days late in moving from the marital residence. We reverse.

The parties were married almost fifteen years. On December 15, 2006, they entered into a marital settlement agreement. Pursuant to the agreement, the former husband was to pay the former wife $2,000,000.00 to equalize the equitable distribution; $750,000.00 was to be paid to the former wife upon the execution of the agreement, and $250,000.00 was to be paid upon the former wife vacating the marital home. The remaining $1,000,000.00 was to be paid from the net proceeds derived from the sale of the home.

The former wife was initially entitled to temporary exclusive use and possession of the home. However, the agreement provided that the former wife was required to vacate the residence “no later than sixty (60) days” from the date of the agreement. Upon the former wife vacating the home, the former husband would have up to six months to sell the residence. If the sale netted more than $1,000,000.00, the former wife would receive the first $1,000,000.00 and the parties would equally divide the remaining proceeds. Unless sold, the residence was to remain vacant during this six-month period.

On December 18, 2006, a final judgment of dissolution of marriage was entered. The marital settlement agreement was incorporated into the final judgment. The former wife did not vacate the marital home until February 25, 2007 — seventy-two days after the date of the agreement. When the former husband failed to make the $250,000.00 payment, the former wife filed a motion to enforce.

At the hearing on the motion to enforce, the former wife testified that pregnancy complications made it difficult for her to move. She acknowledged that she was aware of her pregnancy at the time she executed the marital settlement agreement. The former husband did not present any evidence that he had been damaged by the twelve-day delay. Nonetheless, the trial court found that the former wife was not entitled to receive the $250,000.00 because she was 12 days late in vacating the property.

We are not bound by the trial court’s conclusion because the interpretation of a contract is a question of law. Accordingly, our review is de novo. WSOS-FM, Inc. v. Hadden, 951 So.2d 61, 63 (Fla. 5th DCA 2007).

Unless there is a determination that “time was of the essence,” a brief delay by one party in the performance of a contract covenant does not discharge the other party’s contractual obligations. See Moss v. Moss, 959 So.2d 375, 377 (Fla. 3d DCA 2007); Rose v. Ditto, 804 So.2d 351, 352 (Fla. 4th DCA 2001); Nat'l Exhibition Co. v. Ball, 139 So.2d 489, 492 (Fla. 2d DCA 1962).

Time is considered to be “of the essence” when one of the following circumstances apply:

(1) where there is an express recital in the party’s contract;
(2) where it can be determined from the subject matter of the contract that time was clearly an essential and vital part of .the bargain;
(3) where the treatment of time as nonessential would produce a hardship to the non-defaulting party; or
(4) where notice has been given to the defaulting party requiring that the contract be performed within a stated time, which must be reasonable according to the circumstances.

See Moss, 959 So.2d at 377; Sublime, Inc. v. Boardman’s, Inc., 849 So.2d 470, 471 (Fla. 4th DCA 2003).

None of the foregoing circumstances exists in this case.

First, the agreement does not specifically state that “time is of the essence.” The agreement does mention the sixty-day time frame in five separate places' — but never utilizes the simple words that time is of the essence.

Second, the subject matter of the agreement does not compel a finding that time was of the essence. Florida courts have generally found that a brief delay in performing a covenant set forth in a settlement agreement does not constitute a material breach absent an express recital that time was of the essence. See, e.g., Moss, 959 So.2d at 375 (father’s three-day delay in the proffer of check to mother to settle child support arrearages per terms of their settlement agreement was not a material breach that would justify nullifying the agreement); Rose, 804 So.2d at 351 (former husband’s two-day delay in making first installment payment on settlement agreement regarding child support arrear-ages was not' a material breach); Edward Waters College, Inc. v. Johnson, 707 So.2d 801 (Fla. 1st DCA 1998) (college’s tender of payment one day late was not a material breach of settlement agreement).

Third, the treatment of time as nonessential would not have produced a hardship. The former husbánd did not present any evidence that he had been damaged as the result of the former wife’s belated departure from the marital residence.

Fourth, the former husband did not give any post-default notice to the former wife.

The former husband contends that his obligation to pay the former wife $250,000.00 was conditioned on the former wife timely vacating the marital home. We reject this argument. The applicable provision reads:

The Husband shall pay the Wife ... Two Hundred Fifty Thousand Dollars ($250,000.00) ... when the Wife moves out of marital home, which shall be no later than sixty (60) days of the execution of the Marital Settlement Agreement.

(Emphasis added)

This provision establishes a time for payment — not a condition of payment. In reaching this conclusion, we find it is significant that the parties utilized the term “when,” not, “if,” “provided that,” or “on condition that.”

While no particular words are necessary for the existence of a condition, such terms as ‘if,’ ‘provided that,’ ‘on condition that,’ or some other phrase that conditions performance, usually connote an intent for a condition rather than a promise.

In re Estate of Boyar, 592 So.2d 341, 343 (Fla. 4th DCA 1992). We also find it significant that the $250,000.00 was to be paid to equalize equitable distribution. In essence, the $250,000.00 was the former wife’s money. The effect of the trial court’s ruling would be to cause a forfeiture simply because the former wife was twelve days late in vacating the marital residence. Forfeitures are disfavored. If a contract is fairly susceptible of an interpretation which will prevent a forfeiture, it is to be so construed. Id. In this case, the marital settlement agreement should have been construed so as to prevent a forfeiture.

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.


text:
    Willie E. WALKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1653.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Willie E. Walker, Jr., appeals his judgment and sentence, claiming that the trial court erred in concluding that he violated his probation. Determining that the trial court abused its discretion in revoking Walker’s probation, we reverse.

Walker entered into a negotiated plea agreement, pleading guilty to the charge of attempted sexual battery upon a child under twelve years of age. He was sentenced to a term of five years in prison, followed by a twenty-five year term of probation. In addition, Walker was designated as a sexual predator subject to registration and reporting requirements upon his release from prison.

On the day Walker was released from prison, a warrant was issued for his arrest alleging that he had violated conditions 3 and 5 of his probation. Condition 3 of his probation provided:

3. You will not change your residence or employment or leave the county of your residence without first procuring the consent of your supervising officer.

The arrest warrant alleged that Walker had violated condition 3 of his probation as follows:

[T]he aforesaid was released from the Madison Correctional Institution on 07/01/05, and has failed to provide the Department of Corrections with an approved/verifiable place of residence ...

Condition 5 of Walker’s probation provided:

5. You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation/community control.

The arrest warrant alleged that Walker had violated condition 5 of his probation as follows:

[T]he aforesaid has failed to remain at liberty without violating any law as evidenced by him having failed to register as a sex offender with the State of Florida in compliance with Florida Statute 943.0435 due to the fact the aforesaid having no approvable/verifiable residence in the State of Florida ...

At the violation of probation (VOP) hearing, evidence was submitted indicating that, prior to his release from prison, Walker provided an address to the probation office indicating where he intended to reside when he was released. The probation office determined that the address was not appropriate because it was located within 1,000 feet of a school bus stop. After his release, upon arrival at the probation office, Walker was asked where he was going to reside and he could not provide a verifiable residence. As a result, the probation officer considered Walker to be homeless, because Walker did not have a verifiable address and was unable to register with the Florida Department of Highway and Motor Vehicles as a convicted sex offender. The probation officer thereafter filed a petition charging Walker with violating his probation.

Walker testified that, prior to being released from prison, he had participated in discussions with corrections officials regarding his release from prison and he admitted that the only address he gave corrections and probation officials was his mother’s address, which was not acceptable due to its proximity to a school bus stop.

At the close of the hearing, the trial court orally pronounced that there was a willful and substantial violation of condition 5, noting as follows:

And I find based on the evidence presented that there has been a willful and substantial Violation of Probation Condition Five, in that Mr. Walker would live and remain at liberty without violating any law — the law, which I specifically find that he’s violated is section 943.0435 of the Florida statutes, specifically Subsection 2, Subsection B, which provides in material part that a sexual offender— in this case Mr. Walker is a sexual offender; in fact, he is a sexual predator— is required to provide address of permanent or legal residence, or address of any current temporary residence.
I believe it is implicit in that subsection that the residence would have to be an approved residence, and that it would have to [be] a residence such that the sexual offender would not be in violation of Section 794.065 of the Florida statutes, which prohibits residency within one thousand feet of any school, day care center, park, or playground, and there are other ramifications, also.
I believe and I find that a sexual predator has an affirmative duty to locate an approved residence, and that it is incumbent upon a sexual predator to do so. I find that it is not the government’s responsibility to find an approved residence for a sexual predator.
Prior to his release from the Department of Corrections Mr. Walker was notified by Ms. Ponder that the residence he wanted to live at in Marion County, Florida, was not an approved residence.
He was denied that plan on April 29, 2005. He had May 2005 and June 2005 to come up with a different plan prior to his release from custody on July 1st, 2005.
Mr. Walker was then returned to custody for allegedly having violated probation on July 6, 2005. He has remained in custody until today’s date, May 8th 2006, which is ten months later. He still has no approved residence to present to this Court.
Accordingly, I find that the violation is a willful and substantial violation. I am revoking the term of probation previously imposed in this case.

The trial court then orally sentenced Walker to a term of twenty years in prison. Subsequently, the trial court issued a written order of revocation of probation, but failed to specifically set forth which conditions of sex offender probation Walker had violated. This appeal timely followed.

To establish a violation of probation, the State must prove, by a preponderance of the evidence, that a probationer willfully violated a substantial condition of probation. Johnson v. State, 880 So.2d 749 (Fla. 5th DCA 2004). Whether a violation of probation is willful and substantial is a factual issue that cannot be overturned on appeal unless there is no evidence to support it. Wilson v. State, 781 So.2d 1185 (Fla. 5th DCA 2001).

Here, at the VOP hearing, the trial court pronounced that Walker had violated condition 5 under section 943.0435(2) of the Florida Statutes. Since that statute requires that sexual offenders report in person at the sheriffs office within 48 hours after being released from the Department of Corrections, no violation of that provision occurred in this case since 48 hours had not expired at the time the VOP charges were filed.

No mention of a violation of condition 3 was made by the trial court in its oral pronouncement, nor did the trial court include any factual basis for revoking Walker’s probation. Furthermore, the trial court failed to include in its written revocation order any mention of any condition, either condition 3 or 5, which Walker violated.

We recognize the difficulty that the trial courts face in dealing with cases such as this one, given the strong public policy in favor of keeping track of convicted sexual offenders who are eligible for release on probation. However, we are limited in this case to determining whether the trial court’s order is proper in light of the specific conditions of Walker’s probation. As such, we are constrained to conclude that the trial court abused its discretion by finding that Walker violated condition 5 of his probation. Further, the trial court failed to make any findings that Walker violated condition 3 of his probation, either orally at the hearing or in its written order.

Accordingly, we reverse the trial court’s finding that Walker violated his probation and the judgment and sentence entered as a result thereof.

REVERSED.

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

      . Section 943.0435(2)(a) and (b), Florida Statutes (2005) provides as follows:
      943.0435. Sexual offenders required to register with the department; penalty

      (2) A sexual offender shall:
      (a) Report in person at the sheriff’s office in the county in which the offender establishes or maintains a permanent or temporary residence, within 48 hours after establishing permanent or temporary residence in this state or within 48 hours after being released from the custody, control, or supervision of the Department of Corrections or from the custody of a private correctional facility. Any change in the sexual offender's permanent or temporary residence or name, after the sexual offender reports in person at the sheriff's office, shall be accomplished in the manner provided in subsections (4), (7), and (8).
      (b) Provide his or her name, date of birth, social security number, race, sex, height, weight, hair and eye color, tattoos or other identifying marks, occupation and place of employment, address of permanent or legal residence or address of any current temporary residence, within the state and out of state, including a rural route address and a post office box, date and place of each conviction, and a brief description of the crime or crimes committed by the offender. A post office box shall not be provided in lieu of a physical residential address.


author: THOMPSON, J.

text:
    Krista BEVIL, Appellant, v. Timothy Robert CARSON, Appellee.
    No. 5D06-3173.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.

      Rhonda Portwood, Inverness, for Appellant.
    No Appearance for Appellee.
   THOMPSON, J.

Krista Bevil (“Bevil”) appeals the trial court’s final judgment of paternity awarding Timothy Robert Carson (“Carson”) primary residential custody of J.C. and ordering Bevil to bear all transportation costs associated with her visitation schedule. We affirm the order granting Carson primary residential custody, but reverse the requirement that Bevil pay all transportation costs.

J.C. was born with spina bifida, which required surgery and medical attention. Bevil and Carson lived together for four years after J.C.’s birth before they separated. Bevil subsequently entered a tumultuous marriage and had a second child. The turmoil in her life resulted in two DCF investigations. Bevil’s husband had been arrested for several crimes, including domestic violence against her. J.C. once witnessed Bevil’s husband drag her down a staircase. A dependency proceeding ensued in which Bevil stipulated to J.C.’s placement with Carson. She testified that because she worked long hours, had multiple surgeries, and a new child, it would be in J.C.’s best interest to live with Carson. Carson subsequently filed a petition to establish paternity, child custody, and child support and an emergency motion for order preventing removal of minor child from jurisdiction/motion for temporary custody.

During the evidentiary hearing, the trial court heard testimony from Bevil, Carson, and their witnesses attesting to Bevil and Carson’s treatment of J.C. and their parenting ability. Both parents presented testimony about the other’s shortcomings. The trial court entered a detailed order granting Carson primary custody.

Bevil contends that the trial court abused its discretion by awarding Carson primary residential custody of J.C. without considering the statutory criteria of section 61.13(3), Florida Statutes (2006). Although Bevil concedes that the trial court is not required to make specific written findings of fact as to each factor listed in section 61.13(3), she argues the trial court is required to evaluate each factor because of policy reasons. However, this court stated in Knifley v. Knifley, 944 So.2d 1136, 1137 (Fla. 5th DCA 2006), that:

the statute [61.13(3) ] does not require factual findings as to each enumerated factor. It is sufficient for a trial judge to make a finding as to the best interests of the minor child-provided such finding is supported by substantial competent evidence. Duchesneau v. Duchesneau, 692 So.2d 205 (Fla. 5th DCA 1997).

This court also declined to require trial judges to make detailed findings in disputed custody cases and suggested that policy arguments for such a requirement be directed to the Florida legislature. Id. Here, the record and order reflect that the court considered the required statutory factors.

Further, Bevil argues the trial court’s decision to award primary residential custody to Carson was not supported by substantial, competent evidence. The trial court’s ultimate consideration is the best interest of the child. Duchesneau v. Duchesneau, 692 So.2d 205, 206 (Fla. 5th DCA 1997). If a finding is made on the record to sustain a custody award, the appellate court considers whether there is substantial competent evidence to support the award. Id. Bevil cites her 2005 gross income of $70,000 as a reason she should be designated primary residential custodian. However, she had returned to school and had been unemployed for almost a year. At the time of the June 2006 hearing, she was three days from completing her educational program and did not have any information concerning her future employment possibilities or salary potential. The evidence established that Carson’s home was a stable environment for the child, while Bevil’s home and lifestyle was in a transitional phase due to her health, career change, and uncertain employment prospects. In light of these findings, the trial court based its ruling on substantial, competent evidence and did not abuse its discretion in awarding Carson primary residential custody.

Finally, Bevil contends that the trial court erred when it ordered her to bear all transportation costs, time, and travel associated with her visitation schedule. She contends that these costs should be borne equally by both parents. In a marital dissolution action, the expense of transporting J.C. for visitation is a chil-drearing expense like any other. Drakulich v. Drakulich, 705 So.2d 665, 667 (Fla. 3d DCA 1998). Child support guidelines provide that transportation expenses, like other childrearing costs, should be shared by the parents in accordance with their financial means. McKenna v. Fisher, 778 So.2d 498, 499 (Fla. 5th DCA 2001). Here, the trial court did not consider the parents’ respective ability to contribute to transportation costs.

At the time the trial court entered the paternity judgment, it reserved jurisdiction to determine child support because it had no information concerning Bevil’s income. Bevil had been contributing nothing to J.C.’s support. Once the court has information concerning Bevil’s income, it may then enter the appropriate child support award and reconsider the visitation expense issue.

We AFFIRM the award of primary residential custody to Carson, and REMAND to consider visitation expense and escort duty in conjunction with the child support calculation.

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


text:
    Adonis PUPO-DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5725.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2007.
    Rehearing Denied Nov. 9, 2007.
    Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Adonis Pupo-Diaz appeals an order revoking his probation and sentencing him to nine years in prison. We conclude that the trial court erred in finding that Pupo-Diaz violated his probation. Accordingly, we reverse.

The trial court revoked Pupo-Diaz’s probation on its finding that he had committed the criminal offense of knowingly providing false information to obtain a commercial driver’s license, in violation of section 322.212(5), Florida Statutes (2005). The State presented circumstantial evidence that Pupo-Diaz intentionally misled the Department of Highway Safety and Motor Vehicles (Department) in seeking a commercial driver’s license when, in response to a • question asked by the examiner, Pupo-Diaz falsely reported that his license had not been previously suspended or revoked. The State contended, and the trial court agreed, that this response .constituted a criminal offense and, as such, was a willful and substantial violation of the terms of his probation.

A violation of probation must not only be willful and substantial, but “its willful and substantial nature must be supported by the greater weight of the evidence.” Robinson v. State, 907 So.2d 1284, 1286 (Fla. 2d DCA 2005). We review the trial court’s determination on a violation of probation for an abuse of discretion. Id.

The issue presented in this appeal is whether the evidence presented at the violation of probation hearing was sufficient to prove that Pupo-Diaz either had committed a criminal offense or had engaged in conduct that violated the terms of his probation. To prove a violation of section 322.212(5), the State must show that the probationer knowingly made a false statement or concealed a material fact in making an application for a driver’s license. The State clearly proved that Pupo-Diaz’s previous driver’s license had been suspended and that the application that was processed did contain an incorrect answer to the question regarding pri- or suspensions. However, the issue that we discuss is whether the State proved that Pupo-Diaz “knowingly” answered the question erroneously.

The State’s evidence presented to the trial court showed the following: In applying for his commercial driver’s license, Pupo-Diaz was verbally asked a series of questions by a Department examiner, who recorded his .answers on a computer screen. Pupo-Diaz did not see the answers as they were being recorded, nor was he given the opportunity to review the completed application prior to being asked to sign the computerized signature apparatus. The examiner had no independent recollection of the transaction but rather testified only as to what was recorded on the application,

There was nothing presented to the trial court to indicate that Pupo-Diaz had any motivation to provide a false answer. In fact, he had obtained operator licenses on two previous occasions — both following the suspension of his license — and had answered the same question correctly on both of those occasions. Although the State suggests on appeal that an affirmative answer to the question might have endangered Pupo-Diaz’s opportunity to obtain a commercial driver’s license, there was no testimony or legal argument in the record before this court to support such a suggestion. •

Rather, the record indicates that Pupo-Diaz’s command of the English language is limited, supporting an inference that he misunderstood the question. We also note that all three of the applications submitted by Pupo-Diaz contain a misstatement in response to whether he had ever been licensed in another state. Although the applications all indicate an affirmative response to that question, Pupo-Diaz testified before the trial court that since moving to Florida from Cuba at the age of ten, he had never resided outside of Florida. While the State argues that these misstatements oh ‘his license applications indicate Pupo-Diaz’s willingness to lie, we conclude that such misstatements are also consistent with a lack of understanding of the wording of the questions. The State failed to establish any advantage to Pupo-Diaz that would motivate him to falsely indicate that he had lived in another state.

The evidence presented by the State would not have been sufficient to sustain a criminal conviction because the circumstantial evidence of Pupo-Diaz’s intent did not exclude his reasonable hypothesis of innocence that the examiner mistakenly recorded his answer or that he did not understand the question when asked. See State v. Law, 559 So.2d 187, 188 (Fla.1989) (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”). However, evidence to support a criminal conviction is not necessary to support an order of revocation of probation. Miller v. State, 420 So.2d 631 (Fla. 2d DCA 1982). “The burden of proof to revoke probation is the greater weight of the evidence. Yet, where the revocation is predicated upon the commission of a crime, mere suspicion that the probationer was involved in criminal activity does not suffice.” Id. at 633 (citations omitted).

Based on all of the evidence presented, we conclude that the evidence was insufficient to support a finding that Pupo-Diaz intended to deceive the examiner. To the contrary, . the evidence indicates that Pupo-Diaz’s limited understanding of the English language led him to unintentionally provide incorrect responses or that the examiner simply erred in recording his answer. The only fact tending to show an intent to deceive is that the answer attributed to Pupo-Diaz by the examiner was in fact erroneous. All of the other evidence points to his lack of intent to deceive.

We therefore conclude that the State failed to show that Pupo-Diaz committed a willful and substantial violation of his probation and that the trial court abused its discretion when it found that the State proved by a preponderance of the evidence that Pupo-Diaz knowingly provided false information in his attempt to obtain a commercial driver’s license. Because this was the only basis for the trial court’s revocation of Pupo-Diaz’s probation, we reverse the order revoking his probation and sentencing him to nine years in prison, and remand with instructions to dismiss the violation affidavit. In dismissing the affidavit, the trial court shall also credit Pupo-Diaz for all time served and/or tolled against his term of probation. See § 948.06(2)(g), (2006). Because this will mean that Pupo-Diaz’s probation has, by now, ended, we instruct the trial court to order Adonis Pupo-Diaz’s immediate and unconditional release.

Reversed and remanded with instructions.

DAVIS and LaROSE, JJ., and ST. ARNOLD, JACK R., Associate Judge, Concur.


text:
    Juwan T. EDWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3161.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.

      Juwan T. Edward, Immokalee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The appellant seeks review of an order denying a motion to clarify sentence, claiming the Department of Corrections failed to properly calculate his gain time. He further claims the circuit court orally pronounced and entered a written sentence designating him as a habitual felony offender, but that his DOC classification lists him as a habitual violent felony offender. Any distinction between the legal sentence and the DOC records, if one exists, must be addressed through administrative procedures before seeking relief, pursuant to a writ of mandamus, in the circuit court. See Killings v. State, 567 So.2d 60 (Fla. 4th DCA 1990). As such, the lower court’s order denying relief is affirmed albeit for reasons other than those relied on by the trial court.. Our affirmance is without prejudice to the appellant seeking administrative remedies with the DOC.

WARNER, TAYLOR and MAY, JJ., concur.


author: FARMER, J.

text:
    Simei Moreira DA SILVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-551.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 2007.
    Rehearing Denied Nov. 14, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

We review a conviction for second degree murder. The victim was a close friend of defendant’s former romantic companion. On appeal he complains that evidence of other crimes involving the principal actors was improperly admitted and used by the State to achieve the conviction. He further argues the trial court improperly refused to allow him to represent himself. We find no error and affirm.

Although the evidence at trial was extensive and repetitious, the following pré-cis is sufficient for purposes of this appeal. Bernice, Maria and Vera were longtime acquaintances. Vera was romantically involved with Simei (defendant). Vera and defendant together lived for a while with Bernice. Vera broke up with defendant and moved out. Defendant wanted Vera to return but Vera hid from him. Defendant became obsessed with finding Vera. Defendant repeatedly confronted Bernice and Maria about Vera’s whereabouts, but both always refused to say anything to him.

Defendant bought a .357 Magnum revolver. Eight days later Maria participated in a yard sale at Bernice’s house. Bernice saw defendant drive by her house on the day of the yard sale. An eyewitness saw defendant in the area of the yard sale all afternoon. Bernice heard a gunshot during the yard sale. Maria staggered into Bernice’s house, having just been shot. She later died. The shooter fled the scene. The medical examiner found that Maria had been shot with a .357 revolver.

Defendant finally located Vera two months after the yard sale and kidnapped her, firing his .357 revolver. Vera soon escaped and reported the events to police. A shell casing was recovered by police at the scene of the kidnapping. Defendant was later arrested in Orlando with the .357 revolver in his possession. An expert witness testified that defendant’s revolver was the .357 revolver used to shoot Maria and fired during the kidnapping of Vera.

The subject is the use of evidence of uncharged crimes to prove guilt of the crime actually charged and now being tried. As one writer recently explained:

“To the general rule, ‘applied with considerable strictness,’ that no evidence could be offered of uncharged crimes, the common law made certain exceptions. One such exception was a manifestation of the res gestae rule, that many-headed hydra. When the uncharged crimes evidence was part of the res gestae — when ‘several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and a complete account of any one of them can not be given without showing the others ... ’ — then the uncharged crimes evidence was admissible. No single trope or form of words (other than the unhelpful res gestae) was used to state the test for admissibility. The general idea, however, was ... the demised other-crimes evidence must be ‘indivisible’ from the evidence of the charged crimes, such that the tale of the charged offenses could not be told without relating the evidence of the uncharged offenses. Courts allowed evidence of an uncharged crime only if it was ‘part and parcel of the same transaction’ as the charged crime, or ‘so directly and immediately connected with the crime for which the [defendant] was on trial’ that it was ‘impossible to give a complete or intelligent account of the crime charged without referring to the other crime.’ ” [e.s., c.o.]

Milton Hirsch, “This New-Born Babe An Infant Hercules”: The Doctrine Of “Inextricably Intertwined” Evidence In Florida’s Drug Wars, 25 Nova L.Rev. 279, 282-83 (2000). In Griffin v. State, 639 So.2d 966 (Fla.1994), our supreme court held:

“evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams rule evidence. It is admissible under section 90.402 because ‘it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.’ Charles W. Ehrhardt, FloRida Evidence § 404.17 (1993 ed.)....”

639 So.2d at 968. We agree with the State that the above described evidence is properly deemed relevant evidence under section 90.402 rather than traditional Williams rule evidence not directly connected with the crime being tried. The central meaning of the above evidence was to show the relationship among the persons involved and to tie the use of the firearm used in the killing of Maria to defendant. Indeed the killing of Maria is almost incomprehensible without the whole extent of the evidence described above.

Defendant objects that this evidence became a “feature” of the trial. By that, he argues that the State placed undue emphasis on it. While we question the applicability of “feature-of-the-trial” limitation used in Williams rule cases to this kind of directly relevant evidence showing the commission of the crime on trial, we do not agree that the State’s emphasis in opening statement, or the extent of the evidence itself, or in closing argument was so improper as to fault the trial judge for allowing it. Without this evidence, the jury would have difficulty in understanding how and why defendant acted as he did in the killing of Maria.

Briefly, we also reject his argument that the trial judge erred in refusing to allow him to act as his own lawyer. This case took nearly seven years to reach judgment. Defendant went through several lawyers. At many points during these years, different judges allowed him to attempt his own representation. At one of these hearings while considering his competency to make the decision of self-representation, the trial judge called his attention to reports of medical experts that he suffers from schizophrenia. Without disputing that doctors had made such reports, defendant argued that the doctors were mistaken: “That’s wrong. That’s a report done by several doctors, Doctor Maag, probably Doctor Segal, in which they distorted what I told them. That is not the truth. I am not sick. I’m a friendly person. I’m a normal person.” In denying his request for self-representation, the judge cited the reports of the medical experts.

In Visage v. State, 679 So.2d 735 (Fla.1996), the court said:

“Both parties concede that it is well settled that a defendant may be competent to stand trial yet lack the ability to knowingly and intelligently waive counsel. See, e.g., Johnston v. State, 497 So.2d 863 (Fla.1986); Muhammad v. State, 494 So.2d 969 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987); Goode v. State, 365 So.2d 381 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). We agree and therefore discharge jurisdiction.”

679 So.2d at 735-36; see also Visage v. State, 664 So.2d 1101 (Fla. 1st DCA 1995) (affirming denial of self-representation based on finding of mental illness even though defendant competent to stand trial). In addition to a mental health diagnosis, the several trial judges also had many occasions of direct dealing with defendant himself in pre-trial proceedings. Based on his record of such conduct, we cannot say that several judges abused discretion in finding defendant incompetent to make the self-representation decision.

Although we have fully considered them, we find no error in other issues raised.

Affirmed.

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


author: SAWAYA, J.

text:
    Billy J. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-338.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.

      Billy J. Martin, Crestview, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

We reverse the trial court’s summary denial of Billy J. Martin’s third claim of ineffective assistance of counsel and remand for the trial court to either attach records conclusively refuting Martin’s claim or conduct an evidentiary hearing on the matter. See Fla. R.App. P. 9.141(b)(2)(D). In the third claim, Martin asserted that his defense counsel was ineffective for failing to argue at the suppression hearing that Martin was detained longer than was necessary for Deputy Joyner to issue a traffic citation, rendering the exterior search of Martin’s vehicle by Deputy Joyner’s drug-sniffing dog improper. Martin contended that had this issue been raised by defense counsel, the outcome of the trial may have been different.

The limited record before this court reveals that Deputy Joyner, a canine deputy, made a valid traffic stop of the vehicle driven by Martin and occupied by two other persons. Deputy Joyner approached Martin and asked whether he had any illegal narcotics, paraphernalia, or firearms in his vehicle. After receiving a negative response from Martin, Deputy Joyner proceeded to conduct an exterior search of Martin’s vehicle with his canine. At some point after the initial stop, but prior to the exterior canine search, Deputy Joyner radioed dispatch for back-up, which he does “[sjometimes if there is more than one occupancy [sic] in the car I usually call for back-up or if I think, you know, something might happen, I always call for back-up.” Deputy Greatrex responded. While Deputy Joyner was in the process of conducting the exterior canine search, both he and Deputy Greatrex observed Martin place “a white rocky substance” into his mouth. Deputy Joyner unsuccessfully attempted to prevent Martin from swallowing it. Martin was arrested, and a later search of his vehicle revealed drugs and drug paraphernalia, as well as a .22 caliber rifle.

Martin moved to suppress this evidence prior to trial; however, his motion was not premised on the length of his detention after the stop, but rather on claims regarding the lack of probable cause to support the initial traffic stop. Following a hearing, the trial court denied the motion. Martin was later convicted of: (I) possession of a weapon by a convicted felon; (II) evidence tampering; (III) possession of cocaine; and (IV) possession.and/or use of drug paraphernalia. Martin was sentenced to a composite term of 30 years’ incarceration as a habitual offender.

In summarily denying the third claim of ineffective assistance of counsel, the trial court found in pertinent part:

The officer who conducted the traffic stop was also a canine deputy that lawfully searched the outside of the Defendant’s vehicle immediately after the stop. See Williams v. State, 869 So.2d 750, 751 (Fla. 5th DCA 2004) (“An individual who is stopped for the commission of a traffic infraction may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation.”).

The trial court apparently concluded that because the exterior canine search was conducted within the time it takes to issue the traffic citation, Deputy Joyner’s observations of Martin while conducting the search constituted plain view evidence sufficient to elevate the- routine traffic stop to an arrest.

The problem we have with the trial court’s rationale, however, is that other than the trial court’s legal conclusion, there is nothing in the record which would demonstrate that the exterior canine search was conducted within the time it would have otherwise taken to issue the citation. See Williams v. State, 869 So.2d 750 (Fla. 5th DCA 2004); Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002); Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001). Furthermore, our concern is heightened by the fact that Deputy Joyner felt compelled to call for back-up. Martin alleges this was done to improperly extend the time of the stop beyond what was reasonably necessary to write the traffic ticket so a canine search could be conducted. The record neither supports nor refutes this claim. Accordingly, it will be necessary for the trial court to conduct an evidentiary hearing or attach records conclusively refuting the claim.

Because we are unable to conclude from the limited record before us that the search of Martin’s vehicle was conducted within the time necessary to issue a citation, we must reverse the trial court’s summary denial of claim three and remand the matter for proceedings consistent with this opinion.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . We affirm the trial court’s summary denial of Martin’s first two claims of ineffective assistance of counsel without comment.

      . See Tillman v. State, 471 So.2d 32, 35 (Fla.1985) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”); Johnson v. State, 888 So.2d 122, 125 (Fla. 4th DCA 2004) ("Failure to properly preserve an issue for appellate review may constitute ineffective assistance of counsel.”).

      . Martin was acquitted by the jury of a fifth count for resisting an officer with violence.

      . We note that in Martin’s direct appeal, appellate counsel filed an Anders brief raising as an arguable issue before this court the same "illegal detention” claim we address now. Appellate counsel correctly suggested, however, that defense counsel's failure to preserve the issue for appeal prevented this court from reviewing the issue.


author: PLEUS, J.

text:
    Charles Michael BALFE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1652.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Jeffrey L. Dees, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

We have carefully considered the evi-dentiary issues raised by the defendant and conclude that the trial court was well within its discretion in admitting the similar fact evidence. See Mendez v. State, 961 So.2d 1088 (Fla. 5th DCA 2007); § 90.404(2)(b), Fla. Stat. Accordingly, we affirm the defendant’s convictions for sexual activity with a child.

However, as the State acknowledges, the departure sentence imposed is invalid because the departure grounds upon which it was based had not been found by the jury. The sentences are therefore reversed and the cause remanded for resentencing.

CONVICTIONS AFFIRMED; SENTENCES REVERSED AND CAUSE REMANDED FOR RESENTENCING.

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


author: LAWSON, J.

text:
    Tonie SMIRRA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1939.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Marcia J. Silvers of Marcia J. Silvers, P.A., Miami, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, for Respondent.
   LAWSON, J.

Tonie Smirra seeks certiorari review of an order entered by the circuit court, sitting in its appellate capacity, which dismissed her appeal for failure to file an initial brief. Smirra timely sought extensions of the filing deadline for her brief, and “[successive extensions of time are permissible unless the court has issued an order indicating that no further extensions will be allowed, or the equivalent.” United Auto. Ins. Co. v. Total Rehab and Med. Center, 870 So.2d 866, 869 (Fla. 3d DCA 2004) (en bane). Here, the court never issued an order indicating that no further extensions would be allowed. Additionally, “considerations of fairness dictate that if a failure to file the brief by the deadline may subject the appeal to dismissal, there must [be] fair warning of that fact in advance”. Id. No such warning was given here. Therefore, we find that the circuit court’s order dismissing Smirra’s appeal departed from the essential requirements of the law, warranting certiorari relief. Id. The State correctly concedes that this relief is warranted.

As the appeal below should not have been dismissed, we quash the dismissal order.

CERTIORARI GRANTED; ORDER QUASHED.

PALMER, C.J., and EVANDER, J., concur.


text:
    Steven RIFFE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2652.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Steven Riffe, Tavares, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Steven Riffe appeals from an order denying his rule 3.800(a) motion seeking additional jail credit. Fla. R.Crim. P. 3.800(a). The State concedes that because the trial court failed to attach portions of the record to support denial of Riffe’s motion, we must reverse. See, e.g., Stewart v. State, 920 So.2d 1247 (Fla. 5th DCA 2006) (noting that when the trial court denies a 3.800 motion as successive, it “is required to attach the relevant portions of the record which demonstrate that the motion is successive.”).

REVERSED AND REMANDED.

THOMPSON and PLEUS, JJ., concur.


text:
    Ronald J. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2699.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2007.
    Ronald J. Thompson, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of rule 3.850 relief for three different reasons. First, the motion is untimely because it was filed more than two years after the judgment and sentence became final. See Fla. R.Crim. P. 3.850(b). In addition, the motion is successive to a prior unsuccessful rule 3.850 motion filed by the appellant. See Fla.R.Crim. P. 3.850(f); Zeigler v. State, 632 So.2d 48 (Fla.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994). Finally, the motion was properly denied on the merits. See, e.g., Parker v. State, 611 So.2d 1224, 1226 (Fla.1992), cert. denied, 526 U.S. 1101, 119 S.Ct. 1580, 143 L.Ed.2d 675 (1999); see also Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 99, 126 L.Ed.2d 66 (1993).

AFFIRMED.

PALMER, C.J., THOMPSON and MONACO, JJ., concur.


text:
    William R. DEMPSEY, Linda S. Dempsey, f/k/a Linda S. Stillman, and Gigi Dempsey, Appellants, v. Philip Lee RUSSELL d/b/a Russell Home Builders, and Michael Quinn Sarra d/b/a All Seasons Service Network, Appellees.
    No. 1D06-6360.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Lisa S. Minshew, Pensacola, for Appellants.
    Angela C. Flowers of Kubicki Draper, Ocala, and George W. Hatch, III, of Ku-bicki Draper, Tallahassee, for Appellee Philip Lee Russell d/b/a Russell Home Builders.
    L.L. Roane, III, of Schofield, Wade, Roane & Shoemaker, Pensacola, for Appel-lee Michael Quinn Sarra d/b/a All Seasons Service Network.
   PER CURIAM.

Because the order under review here is not a final order and is not appealable as a partial final judgment, we dismiss this appeal for lack of jurisdiction.

Although the trial • court’s order purports to be a final judgment in favor of Appellees, the order granting summary judgment, upon which the purported final judgment is based, does not. rule on Appel-lee Phillip Russell’s (Russell) motion for summary judgment on his counterclaim. In addition, it denies Appellees’ motion for summary judgment on Count X of Appellants’ complaint. An order which fails to rule on a counterclaim and denies summary judgment on one count is not a final order, regardless of its title, because it does not bring all judicial labor to an end. See McGurn v. Scott, 596 So.2d 1042, 1043 (Fla.1992) (“[A] judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgement.”) (citing Gore v. Hansen, 59 So.2d 538 (Fla.1952)).

Further, we reject Appellants’ argument that this order is appealable under rule 9.110(k), Florida Rules of Appellate Procedure, permitting review of partial final judgments when the remaining claims are separate and distinct from the claims upon which the trial court granted summary judgment. See Raymond James & Assocs., Inc. v. Godshall, 851 So.2d 879, 880 (Fla. 1st DCA 2003) (“[A] partial final judgment is appealable as a final order when ‘the judgment ... adjudicates a distinct and severable cause of action, not interrelated with remaining claims pending in the trial court.’ ”) (quoting S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974)). The test for deciding whether separate claims in a single complaint are interrelated is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts. Mass. Life Ins. Co. v. Crapo, 918 So.2d 393, 394 (Fla. 1st DCA 2006).

Here, Count X is a personal injury claim on behalf of Appellants’ child and is based on Appellees’ allegedly negligent installation of an air conditioning unit in the child’s bedroom. The claims for which the trial court granted summary judgment in favor of Appellees include an allegation that Appellees failed to properly install and seal the air conditioning unit, and two of the counts allege that Appellants’ child suffered injuries as a result of the allegedly defective installation. Thus, regardless of the fact that these claims present different legal theories, both the counts upon which Appellees have already prevailed and the remaining count are based on a common set of facts and are interrelated.

Additionally, Russell’s counterclaim alleges that Appellants breached the residential sales agreement by failing to pay all money owed under it. Appellants’ complaint involves numerous allegations that Russell breached the agreement by improperly constructing their home. Russell’s counterclaim is clearly interrelated to the claims upon which Russell has already prevailed, as it involves the same contract.

Because Count X and Russell’s counterclaim are not separate and distinct, the order under review is not appealable as a partial final judgment. Accordingly, we dismiss this appeal for lack of jurisdiction.

BARFIELD, BENTON and THOMAS, JJ., concur.