text:
    Steven Charles ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2914.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Steven Rogers, appeals the trial court’s imposition of a habitual violent felony offender mandatory minimum sentence after finding him to be a prison releasee reoffender. Rogers pleaded no contest to one count of robbery, and the trial court sentenced him to thirty years in prison as a habitual violent felony offender, with a mandatory minimum of fifteen years as a prison releasee reoffender. Rogers filed a 3.800(b)(2) motion below, arguing that his sentences as a habitual violent felony offender and prison releasee reoffender were illegal, due to the State’s failure to establish the requisite predicate offenses to classify him as a habitual violent felony offender, and its failure to adequately show the date of his release from prison. After reviewing the facts of the case, we agree. We reverse Rogers’s sentence and remand with instructions for the trial court to hold another sentencing hearing and resentence Rogers.

After the entry of Rogers’s plea, the trial court conducted a sentencing hearing. At the sentencing hearing, the State introduced evidence from a “Crime and Time” package. Rogers’s fingerprints were matched to those on two fingerprint cards for previous crimes. The State also introduced a letter from a parole probation specialist which stated:

I ALSO CERTIFY that [Rogers] was received as a new commitment on 8-9-91 from St. Lucie County for the offense of Robbery with Deadly Weapon, Robbery With Firearm, Grand Theft for a term of eight (8) years. On 1-12-93 [Rogers] went out to court to Madison County. On 1-19-93 [Rogers] returned from court with a new sentence of Grand Theft Third Degree (Motor Vehicle), Grand Theft Third Degree (Firearm) for a term of two (2) years, six (6) months. On 11-21-99 [Rogers] was released by expiration of sentence to Probation Community Control to St. Lucie County.

The trial court took judicial notice of the package. A copy of the judgment from the second crime was introduced into evidence. The State also introduced evidence of a judgment for a violation of probation on the first crime, using this to classify Rogers as a habitual violent felony offender. The trial court sentenced Rogers as detailed above.

After his sentence was handed down, Rogers filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion. In the motion, Rogers argued that one of the judgments put forth by the State was entered after the commission of the crime in the instant case, and did not meet the definition of a predicate offense. Moreover, Rogers argued that the other judgment put forth by the State was for a crime that was not one of the enumerated felonies found in section 775.084(l)(b), Florida Statutes, the statute controlling habitual violent felony offender classification. Rogers also argued that the State had not proven the date of his release from prison with competent substantial evidence.

The State requested a hearing on the matter. The trial court scheduled a hearing on Rogers’s motion, but did not rule on the motion within the sixty-day time limit. Therefore, the motion was deemed denied by operation of law. See Fla. R.Crim. P. 3.800(b)(1)(B).

Section 775.084(l)(b), Florida Statutes, is the controlling statute for habitual violent felony offender classification. To be classified as a habitual violent felony offender, a defendant must have a prior conviction and sentence for one of the enumerated crimes listed in the statute, and must have committed the current crime either while serving another prison sentence, or within five years of the date of the prior conviction. § 775.084(l)(b), Fla. Stat. “[T]he State must provide record evidence of the date of the current felony offense, the date of the conviction for the last prior felony, and the date the defendant was released from any prison term or supervision imposed for the last felony conviction.” Mitchell v. State, 780 So.2d 282, 283 (Fla. 4th DCA 2001).

After review of the record, we find merit in Rogers’s arguments. First, the record indicates that one of the judgments considered in his classification as a habitual violent felony offender was handed down after the commission of the crime in the instant case. While the crime introduced into evidence took place in 1991, the sentence was handed down in 2000, following the commission of the crime in the current case. Therefore, this “prior” conviction does not meet the requirements of section 775.084(l)(b), Florida Statutes. Further, the other conviction introduced at trial was for a crime not enumerated in section 775.084(l)(b), Florida Statutes.

Second, there is a lack of competent record evidence as to the date of Rogers’s release from prison. The only evidence that speaks to Rogers’s release is a letter from a parole/probation specialist detailing his release date. While letters from certain state officials have been held to be public record sufficient to establish a release date, we find this letter does not meet the standard this court laid out in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). In Yisrael, the State introduced a letter from the Correctional Services Administrator for the Florida Department of Corrections, which detailed Yisrael’s date of release and certified that the included seal was the official seal of the Florida Department of Corrections. Id. In this case, however, the letter was from a parole/probation specialist, rather than a Department administrator, and while the letterhead contains the seal of the Florida Department of Corrections, the specialist does not certify that it is the official seal. The State agrees with Rogers’s argument on this point and agrees the sentence should be reversed and remanded for resentencing.

We find that the State failed to prove the requisite predicate offenses required, and failed to meet the standard laid out in Yisrael in proving the date of Rogers’s last release. We reverse and remand Rogers’s sentence for the trial court to conduct a new sentencing hearing.

KLEIN and MAY, JJ., concur.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    Charles A. DAMIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-729.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Luke Newman of Daley Law Office, P.A., Tallahassee, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Charles A. Damiano (“Dami-ano”), timely appeals a final judgment re-sentencing him to life imprisonment in Florida State prison. Damiano argues that the trial court erred in imposing an upward departure sentence based on a prior conviction already considered in the calculation of his presumptive guidelines sentence. We agree and remand for imposition of a guidelines sentence.

Damiano was charged by information with, inter alia, the felony of kidnapping. Following a jury trial, he was convicted of said offense and sentenced to a term of life. This sentence was imposed pursuant to a Habitual Violent Felony Offender (“HVFO”) classification in accordance with then applicable section 775.084(4)(b), Florida Statutes (1993). Damiano timely filed a pro se Rule 3.850 motion. Fla. R.Crim. P. 3.850 (“Motion to Vacate, Set Aside, or Correct Sentence”). Between the filing of the pro se motion and the final evidentiary hearing, Damiano’s current appellate counsel was appointed to represent him at the evidentiary hearing, where he argued the erroneous application of section 775.084(4)(b) to Damiano’s factual circumstances. The trial court agreed and granted partial post-conviction relief, vacating Damiano’s life sentence and scheduling a second sentencing hearing.

At the second sentencing hearing, the trial court upwardly departed from the sentencing guidelines, and re-sentenced Damiano to a term of life. The court did so based on the State’s position that a departure was proper due to Damiano’s prior record of criminal history, i.e. his prior conviction for robbery with a firearm. As a written justification of aggravating circumstances, the trial court checked the following block on the standard sentencing form .

Primary offense is scored at level 7 or higher and the defendant has been convicted of one or more offenses that scored, or would have scored, at an offense level of 8 or higher.

Damiano’s counsel objected to the departure sentence and now appeals it as being improperly employed in this case.

This sentencing issue is a pure question of law and is therefore reviewed de novo. See Moore v. State, 882 So.2d 977, 980 (Fla.2004).

The applicable principles for departure sentences based on aggravating circumstances are as follows. A trial court may impose an aggravated departure sentence only when a defendant’s conduct “is so extraordinary or egregious as to be beyond the ordinary case.” State v. McCall, 524 So.2d 663, 665 (Fla.1988). “Moreover, where factors are already taken into account in calculating a guidelines score, those same factors may not also be used as aggravating circumstances for a departure sentence.” Brown v. State, 763 So.2d 1190, 1192 (Fla. 4th DCA 2000) (citations omitted). As the first district explained, “we find a lack of logic in considering a factor to be an aggravation allowing departure from the guidelines when the same factor is included in the guidelines for purposes of furthering the goal of uniformity.” Burch v. State, 462 So.2d 548, 549 (Fla. 1st DCA 1985), approved in Hendrix v. State, 475 So.2d 1218, 1220 (Fla.1985).

During the re-sentencing, Dami-ano’s prior criminal record, including his conviction for robbery with a firearm, was factored into his presumptive guideline sentence score. Despite Damiano’s counsel’s Sentencing Memorandum, which specifically cited this court’s holding in Brown, and over counsel’s objection, the trial court imposed the upward departure sentence based on the prior robbery conviction. See Brown, 763 So.2d at 1192. As a result, Damiano’s robbery conviction was counted against him in determining his presumptive guidelines score and then again for purposes of upward departure. Identical logic was not only rejected by this court in Brown, but also by the second district in State v. Valdes, 842 So.2d 859, 861 (Fla. 2d DCA 2003) (“The [Florida sentencing] guidelines have factored in pri- or criminal records in order to arrive at a presumptive sentence ... To allow the trial judge to depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive sentence would in effect be counting the convictions twice which is contrary to the spirit and intent of the guidelines”) (quoting Hendrix, 475 So.2d at 1219-20).

Therefore, based on Brown, we quash the upward departure sentence and remand to the trial court for imposition of a guidelines sentence.

Reversed.

KLEIN and MAY, JJ., concur.

      . See Fla. R.Crim. P. 3.991(b).


author: HAZOURI, J.

text:
    J.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1135.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Carey Haughwout, Public Defender, and John Pauly, Jr., Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

J.J., a child, appeals his adjudication of delinquency for disrupting the lawful administration or functions of an educational institution. We affirm.

The state filed a petition for delinquency, alleging that J.J. violated section 877.13, Florida Statutes (2005), by disrupting the lawful administration or functions of an educational institution. “The statute seeks to prohibit acts which are ‘specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.’ ” T.H. v. State, 797 So.2d 1291, 1292 (Fla. 4th DCA 2001) (quoting M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997)). Moreover, “ ‘[i]ts intended purpose is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities.’” T.T. v. State, 865 So.2d 674, 676 (Fla. 4th DCA 2004) (quoting M.C., 695 So.2d at 481).

J.J. argues that the trial court erred by denying his motion for judgment of dismissal because the state failed to prove two elements of the offense of disruption of an educational institution: that he intended to disrupt a school function or activity and that his expressions or actions materially disrupted such function or activity.

“ ‘The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal ease.’ ” G.G. v. State, 903 So.2d 1031, 1032-33 (Fla. 4th DCA 2005) (quoting A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005)). The standard is de novo because the motion tests the legal sufficiency of the state’s evidence. Id. at 1033. In A.A.R. v. State, 926 So.2d 463 (Fla. 4th DCA 2006), this court recognized:

In moving for a judgment of dismissal, the movant “ ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’ ” Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). “[A]ll reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the state.” Espiet [v. State], 797 So.2d [598] at 601 [ (Fla. 5th DCA 2001) ] (citing Beasley; Hoffman v. State, 708 So.2d 962 (Fla. 5th DCA 1998)).

AA.R., 926 So.2d at 465 (citing A.P.R., 894 So.2d at 285).

All reasonable inferences that may be drawn from the evidence in this case viewed in a light most favorable to the state reflect that J.J. was being very disruptive in the school cafeteria during regularly-scheduled breakfast hours and attempted to incite two female students to engage in an altercation in the cafeteria. A school employee, whose duties at the time were to monitor the cafeteria and to maintain order, attempted to get J.J. to discontinue the incitement but to no avail. As a result, the employee had to call upon the school dean and the school’s resource officer to assist in controlling J.J.’s behavior which had become increasingly disruptive to the cafeteria activities. The school dean and the resource officer had to forcibly escort J.J. from the cafeteria.

In support of his motion for judgment of dismissal, J.J. relies on A.M.P. v. State, 927 So.2d 97 (Fla. 5th DCA 2006). In A.M.P., the juvenile defendant got into a fight with another student in the bathroom at their high school. The assistant principal at the school broke up the fight, and the defendant intentionally bumped the assistant principal with her shoulder. Id. at 98-99. The court noted:

When asked how much of her day was used to deal with the situation, the assistant principal responded:
Probably a couple of hours in getting students’ statements, contacting parents. But it wasn’t a disruption to the regular school day in that students were in class and going to their classes as they should have been. As far as my time, it was a couple of hours. But it wasn’t a classroom disruption to the rest of the school.

Id. at 99. The defendant moved for a judgment of acquittal on the charge of disruption of an educational institution, which the trial court denied. The Fifth District vacated the conviction for this offense, finding that the state offered no evidence of any intent to disrupt, or that the function of the institution was disrupted. Id. at 99-100.

J.J. reasons that because the court in A.M.P. vacated the conviction, despite the fact that the assistant principal devoted a couple of hours to the fight, this court should reach the same result in this case. However, A.M.P. is distinguishable from the instant case. In A.M.P., there was no evidence that the defendant intended to disrupt the school. Further, the defendant’s disruption was confined to the bathroom, and one other student who was also involved in the fight. The assistant principal in A.M.P. testified specifically that there was no class disruption to the rest of the school.

Here, there was evidence that J.J. both intended to disrupt school activities, and succeeded in doing so. The school employee charged with monitoring the cafeteria testified that she asked J.J. to calm down and stop at least four or five times, which he did not do. She believed J.J. was inciting the two girls to fight, and he wanted to see them fight again like they did on the bus the day before. As a result of J.J.’s behavior, the students in the cafeteria got louder and started to crowd around the girls’ table. She further testified that the incident interfered with the serving of breakfast and her normal duties in the cafeteria.

Viewed in a light most favorable to the state, the evidence in this case was sufficient for the trial court to conclude that J.J. intended to disrupt or interfere with a school activity and succeeded in doing so.

Affirmed.

SHAHOOD and GROSS, JJ., concur.

      . Section 877.13, Florida Statutes (2005), provides in relevant part:
      (1) It is unlawful for any person:
      (a) Knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.
      (b) Knowingly to advise, counsel, or instruct any school pupil or school employee to disrupt any school or school board function, activity on school board property, or classroom.
      § 877.13, Fla. Stat. (2005).

      . This should have been termed a motion for judgment of dismissal because this was a juvenile case.


author: KLEIN, J.

text:
    COVENTRY FIRST LLC, Appellant, v. Warren MARMORSTEIN, Appellee.
    No. 4D06-2139.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Dec. 20, 2006.
    Cozen O’Connor and Sherril M. Colombo, Miami and F. Warren Jacoby and Jennifer M. McHugh, Philadelphia, for appellant.
    Ronald M. Zakarin of Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., Boca Ra-ton and Andrew S. Berman of Young, Ber-man, Karpf & Gonzalez, P.A., North Miami Beach, for appellee.
   KLEIN, J.

We withdraw our opinion filed on November 1, 2006 and replace it with this opinion.

Marmorstein sued Coventry First LLC for tortious interference with a business relationship he had with the Wallachs. Coventry moved to compel arbitration under the contract it had with Marmorstein, because the contract provided for arbitration of all disputes. The trial court denied arbitration, but we reverse.

Coventry and Marmorstein entered into a written agreement in which Marmor-stein, a CPA and financial advisor, agreed to procure the sale of existing life insurance policies to Coventry from the owners of policies. This was a non-exclusive agreement which permitted Marmorstein to submit policies to other companies and permitted Coventry to accept policies from other producers. The contract did, however, require Marmorstein to submit all policies to Coventry even though it did not preclude him from submitting the same policies to other prospective purchasers.

In this case Marmorstein alleged that he had a contract with the Wallachs to sell their life insurance policy, and that Mar-morstein had found a purchaser other than Coventry to purchase the policy. Marmor-stein had submitted the Wallachs policy to several prospective purchasers including Coventry. Marmorstein alleges tortious interference against both Coventry and the Wallachs; however, it is only the claim against Coventry which involves arbitration.

Section 5 of the agreement between Marmorstein and Coventry, which referred to Marmorstein as the “producer,” provided that certain proprietary information about Coventry was confidential and authorized Coventry to obtain an injunction in the event the producer breached the confidentiality agreement. The arbitration provision which followed stated:

Arbitration. Except to the extent that the Coventry and/or other Coventry Parties may seek equitable relief pursuant to Section 5 above, all other disputes between the parties (including any Producer Party) and any claims which may be brought against any Coventry Party shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.

Both parties recognize that Seifert v. United States Home Corp., 750 So.2d 633 (Fla.1999), is the Florida Supreme Court ease most on point. In that case the Sei-ferts had purchased a new home from U.S. Home under a contract which provided for arbitration of any controversy “arising under or related to this Agreement.” After the Seiferts moved into their home they left the car running in the garage, and the air conditioning system distributed the carbon monoxide emissions from the car into the house, killing Mr. Seifert. His widow brought a wrongful death action for negligence against U.S. Home, and the issue was whether the contract required arbitration.

After surveying the case law from Florida and other jurisdictions, our supreme court stated:

As the prevailing case law illustrates, even in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.

Id. at 638.

Marmorstein has not attached his contract with Coventry to his complaint; however, he has alleged in his complaint that he had a business relationship with Coventry for the purpose of presenting opportunities to purchase life insurance policies. The duties which Marmorstein and Coventry owe each other in their business relationship are spelled out by the contract. Coventry points out that the agreement provides that if Coventry receives an application from Marmorstein and any other person involving the same policy, Coventry would have the right to decide which producer it would make the settlement with, and that it would have no liability if it used a person other than Marmorstein. Coventry accordingly takes the position that it was entitled under the contract to exclude Marmorstein when it purchased the Wal-lachs’ policy.

Seifert requires that there be “some nexus between the dispute and the contract containing the arbitration clause.” Seifert at 638. In this case there is that nexus. First, Coventry became aware of the opportunity to purchase the Wallachs’ policy through its contractual relationship with Marmorstein. Second, Coventry contends that it had a right, under the contract, to purchase the policy without Mar-morstein’s involvement.

Marmorstein points out that this is a tort claim and, because Seifert involved a tort claim, the cases are similar. The Sei-fert court emphasized, however, that the claim was for death or personal injuries, which involved “duties wholly independent from the agreement.” Seifert, 750 So.2d at 642. In this case the damages are not for personal injuries or wrongful death, but rather for the type of compensation Marmorstein would normally earn through his contractual relationship with Coventry.

We accordingly conclude that, under Seifert and the cases cited in Seifert, Mar-morstein’s claim for tortious interference must be arbitrated.

Reversed.

POLEN and MAY, JJ., concur.

      . The arbitration provision in the present case requiring arbitration of "all disputes” is broader than the arbitration provision in Sei-fert, which included the "related to this Agreement” language. Although both parties have cited cases from Florida and other jurisdictions, neither has found a case which has such a broad arbitration clause. Because there is a relationship in this case between the dispute and the contract, it is unnecessary for us to decide whether the provision in this case would apply to disputes which are unrelated to the contract.


author: PER CURIAM.

text:
    Owran GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1584.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Michael B. Cohen, Fort Lauderdale, for appellant.
    No appearance for appellee.
   ON REMAND FROM THE SUPREME COURT

PER CURIAM.

In accordance with the supreme court’s opinion in State v. Green, 2006 WL 3025732, 944 So.2d 208 (Fla. Oct.26, 2006), the order denying Green’s motion to withdraw plea is affirmed, without prejudice to his right to file a new motion within sixty (60) days after jurisdiction returns to the trial court.

STONE, WARNER and FARMER, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Andrew A. REDDING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2612.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing Denied Jan. 10, 2007.

      Andrew A. Redding, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Andrew A. Redding (“defendant”) appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion the defendant alleges that he was resentenced without being present and without representation of counsel. In denying the defendant’s motion as untimely, the trial court incorrectly treated the defendant’s motion as a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We, therefore, reverse for proper consideration of the defendant’s motion and, if denied, the issuance of a new order with the appropriate attachments which conclusively refute the claimed entitlement to relief. See Fla. R.App. P. 9.141(b)(2)(D)(requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded.


text:
    Diana M. CISNEROS, Appellant, v. Jesus CISNEROS, Appellee.
    No. 4D05-4072.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Chad R. Laing of Chad R. Laing, P.A., Boca Raton, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

The wife challenges various aspects of the final judgment of dissolution of marriage, contending that the court erred by inequitably distributing the marital assets and liabilities, improperly calculating child support, failing to award alimony, and unfairly allocating dependent tax exemptions between the parties. Because there is no transcript of proceedings, we affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (‘Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”). Each issue requires a review of the trial testimony to determine whether the court abused its discretion.

Affirmed.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.


text:
    Thomas BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2479.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Thomas Bennett, appeals a final judgment and conviction for extortion. Following threats and demands for money made to a victim, Bennett was charged with one count of extortion and was adjudicated guilty in a bench trial. Bennett was sentenced to five years in prison, followed by two years of community control, followed by three years of probation. The trial court also ordered Bennett to pay $115,000 in restitution, and immediately converted this into a civil lien. Bennett argues that the State did not produce legally sufficient evidence proving the amount of restitution actually owed as a result of his conviction for extortion. Bennett argues that the award of restitution was based solely on speculative testimony, rather than concrete or documentary evidence. We agree, and reverse and remand for the trial court to conduct a new evidentiary hearing to determine the appropriate amount of restitution.

The trial court’s order on restitution is reviewed using an abuse of discretion standard. Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005). “The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence.” Id. “Such evidence must be established through more than mere speculation; it must be based on competent evidence.” Glaubius v. State, 688 So.2d 913, 916 (Fla. 1997). A victim’s testimony, without documentation, is not enough to support an award of restitution. See State v. Schuette, 782 So.2d 935, 937 (Fla. 4th DCA 2001).

In this case, the private investigator hired by the victim testified:

Most of the money [the victim] paid to our people early on was to protect him and his family. I think the investigation phase was probably around between eighteen and twenty-thousand dollars. The protection phase including exchanging homes, hotels, and everything, I would guess he probably spent a hundred-thousand dollars.

(Emphasis added.) The victim testified: “I was out-of-pocket over a hundred-thousand dollars because of Mr. Bennett’s actions against me.” This testimony, without more, was not enough to support the trial court’s award of $115,000 in restitution. Neither the private investigator nor the victim presented concrete evidence of these expenses, and the private investigator seemed unsure of exactly how much the investigation had cost. Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution. While reasonable investigative costs are an appropriate basis for a restitution award, the amount of such costs must be established by more than speculative testimony. See Glaubius, 688 So.2d at 914-916.

We reverse the award of restitution and remand to the trial court with instructions to conduct an evidentiary hearing to determine the appropriate amount of restitution.

KLEIN and MAY, JJ„ concur.


text:
    Morris BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4032.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Carey Haughwout, Public Defender, and Helene Hvizd Morris, Special Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is before us on remand from the Florida Supreme Court which quashed our earlier decision reported at Brown v. State, 912 So.2d 7 (Fla. 4th DCA 2005). We vacate our opinion issued on March 9, 2005 and replace it with the following opinion.

The appellant, Morris Brown, appeals his convictions and sentences on three counts of attempted first degree murder. We affirm, without comment, on each of the first three claims of error. As for his fourth claim of error, in which Brown argued that the trial court erred in sentencing Brown as a habitual felony offender on count three under Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), we conclude that the trial court did not err in denying relief on this claim. Based on State v. Richardson, 915 So.2d 86 (Fla.2005), we affirm Brown’s sentence as a habitual felony offender for the third count of attempted first degree murder.

Affirmed.

STEVENSON, C.J., GUNTHER and STONE, JJ., concur.


text:
    Robert M. GORDON, Appellant, v. Emily J. GORDON, Appellee.
    No. 4D06-1008.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Jan. 18, 2007.
    Robert M. Gordon, Baltimore, pro se.
    Siobhan Helene Shea, Palm Beach, for appellee.
   PER CURIAM.

The trial court held appellant in contempt for failure to pay alimony. We reverse for a new hearing because, according to a sworn affidavit of the court reporter, approximately twenty-five pages of the transcript of the evidentiary hearing has been lost.

Reversed.

POLEN, KLEIN and MAY, JJ., concur.


author: LEWIS, TERRY P., Associate Judge.

text:
    Paul RHODES, Appellant, v. BLP ASSOCIATES, INC., a Florida corporation, Gilbert Goldstein, Howard Gittis and Judgment Acquisition Corporation, Appellees.
    No. 4D05-3833.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Gerald F. Richman, Jill Weiss and Stefanie R. Shelley of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., West Palm Beach, for appellant.
    Richard Epstein, Victor Klein and Rebecca Bratter of Greenspoon Marder, P.A., Fort Lauderdale for Appellees-BLP Associates, Inc., Gilbert Goldstein and Howard Gittis, for appellee.
   LEWIS, TERRY P., Associate Judge.

In 1988, the appellant Rhodes, along with BLP Associates, Inc., whose principals were appellees Goldstein and Gittis, formed a general partnership called Bro-ward Land Partners, for the purpose of buying and selling certain real estate. The partnership was memorialized in a written agreement and appellant Rhodes was named the managing partner.

In 1994, Rhodes filed a complaint against the other partners for breach of contract, breach of fiduciary duty, accounting, and declaratory relief. BLP filed a counterclaim against Rhodes for accounting, breach of fiduciary duty, and for dissolution of the partnership with appointment of a receiver. The court issued its final judgment on May 13, 1996, dissolving the partnership and appointing a receiver. That final judgment was appealed and affirmed.

Several years later, on February 14, 2005, the trial court conducted a hearing to consider the receiver’s final accounting. The final order, dated August 23, 2005, resolved all remaining issues between the parties and determined the proper distribution of partnership funds. The appellant contends the trial court erred in this final order in three respects: (1) determining that certain monies given to the partnership by the partners were capital contributions rather than loans; (2) enjoining distribution of partnership funds to appellant in order to enforce a promissory note from appellant to appellees; and (3) miscalculating the accrued interest on the amount of expenses appellant owed the partnership. We agree with appellant as to the second and third issues, but not as to the first.

CLASSIFICATION OF ADDITIONAL CONTRIBUTIONS TO PARTNERSHIP

Article II of the partnership agreement sets forth the requirements for capitalization of the partnership and the allocation of profit and loss. The agreement contemplated two classes of capital contributions. Class A contributions were nominal amounts paid upon the execution of the agreement showing the percentage share of the partners. Class B contributions were to be made in two installments and totaled $600,000. The other partners agreed to loan Appellant Rhodes his share of the Class B contributions and that loan was evidenced by a separate promissory note. The note provided that it would mature on the date that the Class B capital contributions were “paid in full.” Accrued interest on the note was to be paid at any time Rhodes received any distributions of interest on his Class B contribution.

In addition to the capital contributions as noted above, the agreement provided, in Section 2.14(d) as follows:

(d) Additional Capital Contributions and Partner Loans. In the event additional funds in excess of the contributions required to be made in Sections 2.1(a) and (b) hereof and in excess of the Bank Loan described in Section 2.1(c) hereof, are needed to carry out the purposes of the Partnership, then such additional sums necessary therefore may be (but shall not be required to be) advanced as loans from the Partners (“Partner Loan”).

This subsection further provided that to the extent a partner made a loan to the partnership, that partner was also to make a Class A capital contribution of $1 for each $600 of funds loaned to the partnership. Section 2.4 of the agreement also established a hierarchy for distribution that placed the payment of interest and principal for partner loans ahead of any payment of the interest and principal for Class B capital contributions.

After the partnership commenced and the initial capital contributions were made, Rhodes sent approximately fifteen requests for additional cash from the partners. Despite the language in Section 2.1(d) which contemplated that such additional monies would be in the form of partner loans, the letters which Rhodes sent out called the requests “capital calls” or otherwise referred to the requested cash infusions as “capital contributions.” Likewise, numerous letters from the principals of BLP, responding to these requests for cash, referred to the money they were sending in as “capital contributions.” The partnership tax returns in each of those years also classified the contributions as “capital.” None of the partners, at the time, characterized any of these contributions as “partner loans”, nor did anyone object to Rhodes’s use of the terms “capital call” or “capital contributions.” In fact, at the final hearing on February 14, 2005, one of BLP’s principals, Gilbert Goldstein, testified that he and Rhodes had agreed to treat all additional cash contributions into the partnership as capital rather than partner loans. Rhodes attempted to adjust the Class A contributions based on the response to the capital calls, but Goldstein wrote a letter objecting to it very strenuously.

A written agreement may be modified by the subsequent conduct or course of dealing of the parties. See St. Joe Corp. v. McIver, 875 So.2d 375, 382 (Fla.2004); Gallagher v. Dupont, 918 So.2d 342, 347 (Fla. 5th DCA 2005); White v. Ocean Bay Marina, Inc., 778 So.2d 412 (Fla. 3rd DCA 2001); Franklin Life Ins. Co. v. Davy, 753 So.2d 581, 586 (Fla. 1st DCA 1999); Beach Higher Power Corp. v. Granados, 717 So.2d 563, 565 (Fla. 3rd DCA 1998). Of course, no such modification can occur unless it is by mutual consent, and supported by consideration. St. Joe, 875 So.2d at 382. Here, the record supports such a finding of mutual consent and consideration. The parties referred to the cash infusions as capital contributions, never as loans. The partnership tax returns designated them as capital and there was testimony that this was the intent. The consideration can be found in the fact of the cash infusions themselves, which the partners were not required to make under the agreement.

The appellant maintains that because the language of the agreement in Section 2.14(d) is clear and unambiguous, and contemplates that additional contributions will be in the form of loans, the agreement can not be altered or modified by way of subsequent conduct of the parties. The appellant relies on the case of Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999) for this proposition. Cox dealt with contracts to haul freight, and specifically, with a clause in the contracts that disclaimed any obligation on the part of the company to provide any specific quantity of freight or number of loads to the truckers. The issue was whether the subsequent course of conduct between the parties established a policy of “first come, first served” to determine orders, and thus modified the contracts.

The First District Court of Appeal acknowledged the general principle that written contracts can be modified by the subsequent conduct of the parties, but it also stated as follows:

When a course of dealing and the terms of the contract appear to conflict, the parties’ practice and the written agreement must be construed as consistent with each other, if it is reasonable to do so. If no reasonable consistent construction can be drawn, however, the express terms of the agreement control.

Cox, 732 So.2d at 1096 [citations omitted]. We find this authority unpersuasive for two reasons.

First, the Cox opinion cites two cases to support this statement of the law: Flagship National Bank v. Gray Distribution Systems, Inc., 485 So.2d 1336 (Fla. 3rd DCA 1986); and Indian Harbor Citrus, Inc. v. Poppell, 658 So.2d 605 (Fla. 4th DCA 1995). The Flagship case did, in fact, state this to be the law and applied it in a case in which the maker of a note insisted that the bank was obligated to loan it additional money because the bank had done so in the past. The court cited and relied upon a rule of interpretation found in the Uniform Commercial Code, Section 671.205(4) which provides:

The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade.

Subsection 1 of this Section, however, defines “course of dealing” as:

[A] sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.

[emphasis added].

This provision is meant as an aid for interpretation of contracts by considering the conduct between the parties before the contract was entered, not after. The court in Indian Harbor, in contrast, properly applied this rule of interpretation, holding that a prior course of dealings between the parties and the custom in the industry could not be used to interpret the contract contrary to its clear, unambiguous language.

It is respectfully submitted that the Flagship and Cox courts misapplied this rule of interpretation by suggesting that a written contract cannot be modified by the subsequent course of conduct of the parties, if the modification is contrary to the express terms of the written contract. Indeed, it has been held that a contract can be so modified even where the written contract specifically prohibits amendment or modification unless it is in writing and signed by the parties. See White, 778 So.2d at 412 (Fla. 3rd DCA 2001); Beach Higher, 717 So.2d at 563; Linear Corp. v. Standard Hardware Co., 423 So.2d 966 (Fla. 1st DCA 1983); Pan American Eng’g Co. v. Poncho’s Constr. Co., 387 So.2d 1052 (Fla. 5th DCA 1980).

Even if Cox correctly stated the law, it would not apply in this case. Here, there is no direct conflict between the express terms of the contract and the subsequent conduct of the parties. The two can be reasonably construed as consistent with each other (as Cox suggests they must). The agreement in this case required the partners to make certain Class B capital contributions. It also contemplated that if the general partner asked for additional funds, any partner could, but was not required to, make a loan to the partnership. The agreement is silent as to whether the partners could make additional capital contributions. It does not provide that the only method by which a partner might make additional cash contributions to the partnership is by loan. Therefore, an agreement by the parties by way of their words and actions, to treat additional funds as capital contributions, does not directly conflict with the written terms of the agreement. The trial judge was thus justified in finding such an agreement based upon the evidence before her. Accordingly, we find no error in the trial court’s ruling on this point.

REQUIREMENT THAT APPELLANT’S SHARE OF PARTNERSHIP PROCEEDS BE PAID INTO THE COURT REGISTRY PENDING THE FILING AND RESOLUTION OF THE SUIT ON THE NOTE

The promissory note became due and payable if and when Class B capital contributions under the partnership agreement were paid in full. Accrued interest was to be paid when and if the maker received any distributions of interest on Class B capital contributions. As of the date of the final hearing on February 14, 2005, the note had not matured and there was no pending lawsuit to enforce it. Counsel for the appellees acknowledged this but, nevertheless, requested that the court grant injunctive relief by requiring the partnership distributions due to appellant be placed in the court registry until such time as the appellees could avail themselves of their legal remedies to enforce the note. The trial court’s granting of this temporary injunction, which was aimed at securing the collectibility of a future judgment, was error. See Int’l Village Assn., Inc. v. Schaaffee, 786 So.2d 656, 658 (Fla. 4th DCA 2001); Mary Dee’s, Inc. v. Tartamella, 492 So.2d 815, 816 (Fla. 4th DCA 1986); Acquafredda v. Messina, 408 So.2d 828, 829 (Fla. 5th DCA 1982); Action Electric & Repair, Inc. v. Batelli, 416 So.2d 888, 889 (Fla. 4th DCA 1982).

The appellees rely upon Georgia Banking Co. v. GMC Lending & Mortgage Services Corp., 923 So.2d 1224, 1225 (Fla. 3rd DCA 2006) and Riverland and Indian Sun L.C. v. L.J. Melody & Co., 879 So.2d 1271, 1272 (Fla. 3rd DCA 2004). In each of these cases, however, there was a specific, identifiable fund, beneficially owned by another. That is not the case here. The parties could have bargained for and included in the agreement, or the note, language that would have done so. The parties could have included language that required that the interest or principal, or both, be paid prior to any distribution of partnership funds to the maker. They did not. Rather, they simply provided that the note became due and payable upon such distribution. The holders of the note would then be free to pursue their legal remedies to collect on the note if it was not paid. The trial court did not have the authority to assist them in this by holding up distribution to the appellant.

CALCULATION OF THE INTEREST ACCRUED ON REIMBURSED EXPENSES OWED BY RHODES TO THE PARTNERSHIP

The appellees aptly confess error on this point. Under the parties’ agreement, the interest owed on the reimbursed expenses was $165,277.00, rather than the $178,351.47 the trial court awarded.

We, therefore, reverse and remand with directions to the trial court to enter an amended final order consistent with this opinion.

Affirmed in part, Reversed in part, and Remanded.

GUNTHER and SHAHOOD, JJ„ concur.


text:
    James COWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3680.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of two counts of possession of cocaine and two counts of sale of cocaine within 1000 feet of a school. He argues that his convictions for two counts on both charges, rather than one, violate double jeopardy. We agree that he can be convicted of only one count of possession, because the same cocaine was involved. He also argues that the state failed to prove that the sales had occurred within 1000 feet of a school, because there was no evidence as to the age of the students. We agree. State v. Roland, 577 So.2d 680 (Fla. 4th DCA 1991) (kindergarten/preschool is not a school so as to warrant enhanced penalties under section 893.13(l)(c), Florida Statutes); State v. Lee, 583 So.2d 1055 (Fla. 4th DCA 1991) (center for severely mentally retarded people aged five to twenty-five, not a school within meaning of statute). We accordingly affirm one conviction for possession of cocaine and remand the two convictions for sale within 1000 feet of a school to be reduced to the lesser included crime of sale of cocaine. We reject appellant’s argument that two counts of sale, which were to different buyers at about the same time, violate double jeopardy.

Reversed.

POLEN, KLEIN and MAY, JJ., concur.


author: EVANDER, J.

text:
    Rodger K. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-250.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 2006.

      David S. Glicken, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant was charged in Orange County, Florida, with two counts of lewd and lascivious molestation of a “victim 12 years of age or older but less than 16 years of age” (hereinafter referred to as “M.J.”). In Count I, it was alleged that between May 1, 2001 and November 22, 2004, appellant touched M.J. on her breasts or the clothing over her breasts in a lewd or lascivious manner. In Count II, it was alleged appellant touched M.J. in her genital area or the clothing over her genital area in a lewd and lascivious manner during the same time frame.

Appellant’s first trial ended in a hung jury. He was convicted on both counts after the second trial. We reverse.

Shortly prior to the first trial, the state filed a Notice of Intention to Use Similar Fact Evidence. In its notice, the state indicated its intent to present evidence that between August 1, 2002 and November 22, 2004, appellant committed several other sexual acts on M.J. in Seminole County, Florida. Specifically, the state indicated its intent to present evidence that appellant digitally penetrated M.J.’s vagina with his finger(s), had her touch his penis with her hand, and had her perform fellatio on him. Appellant had not been charged with any of these crimes in Seminole County. Appellant’s objection to the use of this collateral crime evidence was overruled at both trials.

M.J. was sixteen years old at the time of both trials. The first trial took place just prior to the commencement of her eleventh grade school year. The second trial took place approximately two and one-half months later.

At the first trial, M.J. testified the improper sexual acts committed by appellant occurred either at her residence in Orange County, or during bike rides in Seminole County. With regard to the Orange County incidents, M.J. testified appellant had touched her breasts and genital areas over her clothing “a few times.” Significantly, other than testifying that the first incident occurred in the summer of 2001, M.J. never stated (nor was she asked by the prosecutor) the dates on which these touchings occurred.

Prior to the commencement of the second trial, appellant filed a Motion for Statement of Particulars. The trial court granted the motion and the state filed an amended information setting forth a narrower range of dates — from June 1, 2002— November 22, 2004. The state’s amended information reduced the time range from approximately three and one-half years to approximately two and one-half years. Appellant then filed a motion to dismiss, alleging the state had failed to comply with Florida Rule of Criminal Procedure 3.140(n) in responding to its Motion for Statement of Particulars. Specifically, appellant contended the state had failed to specify, as definitely as possible, the dates on which the alleged crimes had occurred.

We find the trial court erroneously denied appellant’s motion to dismiss.

In Dell'Orfano v. State, 616 So.2d 33, 35 (Fla.1993), our supreme court held a trial court, upon proper motion, was required to dismiss an information involving a lengthy period of time if the state could not show clearly and convincingly that it had exhausted all reasonable means of narrowing the time frame further. The state’s argument that it made all reasonable efforts to narrow its thirty month time frame is not supported by the record.

At the hearing on the motion to dismiss, the state contended the victim was unable to be more specific with regard to the dates of the Orange County incidents — as reflected in her testimony at the first trial. However, as previously noted, other than establishing the approximate date of the first incident, the prosecutor did not even ask the victim the dates on which the other alleged improper touchings at the Orange County residence occurred. The state presented no other evidence to show “clearly and convincingly” that it had exhausted all reasonable means of narrowing the time frame further. Therefore, the trial court should have granted the motion to dismiss with leave for the state to further amend its information upon exhausting all reasonable means of narrowing the time frame further. State v. O’Brien, 636 So.2d 92 (Fla. 5th DCA 1994). As a result of the trial court’s failure to grant the motion to dismiss, appellant was faced with the unique situation that the amended information alleged he committed the charged crimes between June 1, 2002 and November 22, 2004, although the only date given by M.J. at the first trial with regard to the Orange County incidents was the summer of 2001.

The trial court’s error was further compounded by the fact, as acknowledged by the state at oral argument, that appellant is still subject to a new prosecution for improper touchings alleged to have occurred prior to June 1, 2002. Dell'Orfano, 616 So.2d at 36 n. 8. The potential for a new prosecution exists notwithstanding the fact that at the second trial, on direct examination, M.J. testified the improper touchings in Orange County started in the summer of 2001 and lasted “about a year.” (On redirect examination, M.J. expanded the time frame for the Orange County incidents through the summer of 2004.)

Reversal is also required because the trial court failed to prevent the collateral crime evidence from becoming the feature of the trial. See McLean v. State, 934 So.2d 1248, 1262 (Fla.2006); Ashley v. State, 265 So.2d 685, 693 (Fla.1972). Indeed, the record reflects the prosecutor devoted more time on the collateral crime evidence than on the charged crimes both in examining the alleged victim and in closing argument. The need to prevent collateral crime evidence from becoming the focal point of a trial is particularly great where, as here, the alleged collateral crime evidence relates to criminal acts which are more serious offenses than the crimes for which the defendant is on trial.

The record suggests a strong likelihood appellant was significantly prejudiced by the evidence of the alleged Seminole County crimes becoming the feature of his trial. M.J.’s testimony regarding the dates of the alleged improper touchings in Orange County, as previously discussed, was vague and inconsistent. She also had difficulty in remembering the number of improper touchings which occurred in Orange County. Furthermore, at the first trial, M.J. testified appellant’s improper touchings in Orange County had been over the clothing only. At the second trial, M.J. testified the Orange County incidents involved touching both over and beneath the clothing. By contrast, M.J.’s testimony regarding the uncharged Seminole County incidents was far more detailed and specific. Evidence that a defendant committed a collateral crime is inherently prejudicial because it creates the risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof he committed the charged offense. McLean, 934 So.2d at 1255. To minimize that risk, the state may not make the collateral crimes a feature of the trial. Ashley, 265 So.2d at 693.

REVERSED and REMANDED.

THOMPSON and LAWSON, JJ., concur.

      . § 800.04(5)(c)(2), Fla. Stat.

      . Florida Rule of Criminal Procedure
      3.140(n) provides:
      The court, on motion, shall order the prosecuting attorney to furnish a statement of particulars when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense. The statement of particulars shall specify as definitely as possible, the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney.... Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.

      . The McLean decision was rendered subsequent to the conclusion of appellant's second trial. Should this case be retried, decisions regarding the admissibility of collateral crime evidence are to be consistent with the dictates of McLean.


text:
    Thomas J. RICHARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3564.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 2006.
    Thomas J. Richards, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We grant the petition for belated appeal as Petitioner’s unnotarized oath is legally sufficient for purposes of meeting the requirements of rule 9.141(c)(3)(F), Florida Rules of Appellate Procedure, and the State has otherwise conceded Petitioner’s right to such a belated appeal.

PETITION GRANTED.

SAWAYA, PALMER and MONACO, JJ., concur.


text:
    Richard J. PISTONE, Petitioner, v. CITY OF PALM BAY and Denise A. Burgin, Respondent.
    No. 5D06-2327.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 2006.
    Richard J. Pistone, Fort Lauderdale, Pro Se.
    Gary B. Sack, Reinman Matheson Vaughan Durham & Sack, P.A., for Respondent.
   PER CURIAM.

We deny Richard Pistone’s petition for writ of certiorari. Our review of a circuit court appellate decision is limited to a determination of (1) whether the circuit court afforded the parties procedural due process, and (2) whether the circuit court applied the correct law (also expressed as whether the essential requirements of the law have been observed). See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995).

A departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than simple legal error. Cer-tiorari is not used to grant a second appeal nor redress mere legal error. Rather, it provides a safety net to correct a miscarriage of justice when no other remedy is available. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006). No miscarriage of justice is presented here.

In the instant petition, Mr. Pistone has not demonstrated either a violation of his procedural due process rights below or the circuit court’s failure to apply the correct law. It is clear from the circuit court’s opinion that Mr. Pistone failed to provide an adequate record to support reversal of the county court’s final judgment. In addition, a review of Mr. Pistone’s motion to disqualify the county court judge was based on adverse prior rulings and was, therefore, legally inadequate.

CERTIORARI DENIED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


text:
    Danny BLACKWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4441.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 2006.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fitzpatrick v. State, 900 So.2d 495, 517-18 (Fla.2005) (holding that the test for suppression of an out-of-court identification is (i) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (ii) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentifieation).

THOMPSON, ORFINGER and TORPY, JJ., concur.


author: CASANUEYA, Judge.

text:
    David L. JUSTICE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2816.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2006.
   CASANUEYA, Judge.

David L. Justice appeals the summary denial of his motion for return of property, motion for continuance of his motion for return of property, and demand for discovery filed in circuit court case number CF03-007441-XX. We affirm without comment the circuit court’s summary denial of Justice’s motion for continuance of his motion for return of property and the demand for discovery. We reverse the summary denial of the motion for return of property and remand for further proceedings consistent with this opinion.

In his motion for return of property, Justice states that the Polk County Sheriffs Office initiated an investigation at the Day’s Inn in Winter Haven on or about September 10, 2003, and, as a result, seized a home computer, printers, digital cameras, a digital camcorder, a man’s watch, and other personal property. Subsequently, on February 17, 2004, Justice was arrested. His motion alleges that the State never entered the seized items into evidence or initiated any forfeiture proceedings for the property. The State nolle prossed the charges on January 26, 2006. Justice therefore requests that the circuit court order the return of the property and release it to his father.

“A trial court’s jurisdiction over a criminal proceeding includes inherent authority over property seized or obtained in connection with the proceeding and thus held in custodia legis.” Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006) (citing White v. State, 926 So.2d 473 (Fla. 2d DCA 2006); Eight Hundred, Inc. v. State, 781 So.2d 1187, 1191-92 (Fla. 5th DCA 2001) (Eight Hundred I)). “This authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner.” Id. A facially sufficient motion for return of property must specifically identify the property and allege that it is the movant’s personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence. See Scott v. State, 922 So.2d 1024, 1026 (Fla. 5th DCA 2006) (citing Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004); Eight Hundred, Inc. v. State, 895 So.2d 1185, 1186 (Fla. 5th DCA 2005) (Eight Hundred II)).

The circuit court could have concluded that Justice’s motion was facially insufficient on the ground that it did not specifically identify the property at issue or specifically allege that the property at issue was Justice’s personal property. See Bolden, 875 So.2d at 783. However, the circuit court denied Justice’s motion based on the Polk County Sheriffs Office response to Justice’s motion. In its response, the Polk County Sheriffs Office attached a property and evidence receipt that refers to incident number 2003-164852. The Polk County Sheriffs Office asserts that incident number 2003-164852 corresponds to Justice’s criminal case number CF03-007441-XX and that none of the items requested by Justice in his motion match the items referenced in incident number 2003-164852. A review of the Polk County Sheriffs Office property and evidence receipt does not indicate when the Polk County Sheriffs Office acquired the property referenced in incident number 2003-164852, which does not match the items listed in Justice’s motion, nor does it specifically describe the circuit court case number to which incident number 2003-164852 corresponds. Nevertheless, it appears that the circuit court summarily denied Justice’s motion based on the Polk County Sheriff Office’s assertion that it does not have any of Justice’s property.

If Justice’s allegations are deemed to be sufficient, the circuit court was obligated to provide Justice a full evidentiary hearing to determine whether the property at issue is in the custody of the Polk County Sheriffs Office and should be returned to Justice. See Scott, 922 So.2d at 1026-27 (citing Eight Hundred I, 781 So.2d at 1192; Helmy v. Swigert, 662 So.2d 395, 397 (Fla. 5th DCA 1995)). The requirement for an evidentiary hearing was not obviated nor satisfied by the circuit court’s reliance on the Polk County Sheriffs Office property and evidence receipt. “Representations by an attorney for one of the parties regarding the facts ... do not constitute evidence.” Eight Hundred, Inc. v. Fla. Dep’t. of Revenue, 837 So.2d 574, 576 (Fla. 1st DCA 2003) (quoted in Scott, 922 So.2d at 1027).

We remain concerned about the facial sufficiency of Justice’s motion because he fails to specifically allege that the property seized was his personal property and to specifically identify the property he requests be returned. Unless he can remedy those inadequacies, he may lack standing to recover the requested property. On remand, if the circuit court determines that Justice’s motion is facially sufficient, it shall hold an evidentiary hearing. See Scott, 922 So.2d at 1027; Coon v. State, 585 So.2d 1079, 1081 (Fla. 1st DCA 1991). However, if the circuit court determines that Justice’s motion is facially insufficient based on the deficiencies we have noted or for any other reason, it shall identify those deficiencies and grant him leave to amend his motion within a reasonable time.

Reversed and remanded.

SILBERMAN and CANADY, JJ., Concur.


author: PER CURIAM. SAWAYA, J.,

text:
    T.T. Mother and A.M., Father of A.M. and T.M. Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D06-56, 5D06-59.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2006.

      Diana K. Simpson of Diana Kilpatrick Simpson, P.A., Ocala, for Appellant.
    Ralph J. McMurphy, of Department Children and Families, Wildwood, for Ap-pellee.
    Patricia M. Propheter, Orlando, for Guardian ad Litem.
   ON MOTION FOR ATTORNEY’S FEES

PER CURIAM.

In these two parental rights termination cases, the Department of Children and Families (DCF) has filed motions seeking awards of appellate attorney’s fees, citing to section 57.105 of the Florida Statutes (2005) to support such awards. DCF contends that the obligation to pay such fees should be imposed against the parents and their attorneys in these cases due to the filing of frivolous notices of appeal. Determining that DCF has failed to meet the standard of proof set forth in section 57.105 to justify an award of attorney’s fees, we deny the motion.

PALMER and MONACO, 33., concur.

SAWAYA, dissents with opinion.

SAWAYA, J.,

dissenting.

Given the very limited discussion the majority chose to include in its very brief opinion, no reply is warranted other than for me to say that I disagree and, therefore, respectfully dissent.


author: VILLANTI, Judge.

text:
    LAKELAND REGIONAL MEDICAL CENTER, INC., a Florida corporation, Petitioner, v. Lona Q. ALLEN, as Personal Representative of the Estate of Henry F. Allen, deceased, Respondent.
    No. 2D06-3555.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2006.

      Ronald J. Lamb and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Petitioner.
    Stephen A. Barnes of Abrahamson, Ui-terwyk & Barnes, Tampa, for Respondent.
   VILLANTI, Judge.

Lakeland Regional Medical Center, Inc. (LRMC), petitions this court for a writ of certiorari to review the nonfinal order denying its motion to dismiss. The motion claimed that Lona Q. Allen, as Personal Representative of the Estate of Henry F. Allen, deceased (Allen), failed to comply with the presuit notice requirement of chapter 766, Florida Statutes (2004). We deny the petition because the trial court correctly ruled that Allen’s complaint only sounded in simple negligence and, hence, the presuit notice requirement of chapter 766 does not apply.

Background and Procedural History

In a one-count amended complaint, Allen asserted a wrongful death action on behalf of the Estate of Henry Allen, which is framed as an action for “general negligence.” Allen alleged that while her husband was hospitalized as a patient at LRMC in June 2005, LRMC served him a patient’s meal, a turkey sandwich that was unfit for human consumption. Allen asserted that after consuming the sandwich, her husband developed a salmonella infection and subsequently died as a result of eating the sandwich. It is undisputed that the allegedly unfit sandwich was served to the husband in connection with his care and treatment as a patient at LRMC.

Approximately two months after her husband’s death, Allen filed this suit against LRMC without complying, or even attempting to comply, with the procedures outlined in chapter 766, Florida’s Medical Malpractice Act. The complaint was amended in May 2006, and LRMC timely filed and served its motion to dismiss the amended complaint, alleging Allen’s noncompliance with the Act, in June 2006. The trial court heard the motion to dismiss on July 6, 2006, and the next day, entered an order denying the motion to dismiss and requiring LRMC to serve a responsive pleading to the amended complaint within twenty days. LRMC then filed for certio-rari review in this court.

Jurisdiction

A writ of certiorari is generally unavailable to review the denial of a motion to dismiss. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). “[I]t is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari.” State v. Pettis, 520 So.2d 250, 252 (Fla.1988). One of those rare instances in which certiorari jurisdiction may lie is when chapter 766 presuit requirements are at issue. See Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2d DCA 2004); St. Mary’s Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997).

Before a district court can grant relief from an erroneous interlocutory order, a petitioner must establish three elements: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal.” Fassy, 884 So.2d at 363 (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. Id. Because, as already stated, jurisdiction is appropriate when determining whether chapter 766 presuit requirements are in issue and/or have been met, this court may now consider the first element of the analysis, to-wit, whether the trial court departed from the essential requirements of the law when it denied LRMC’s motion to dismiss.

Analysis

Despite Allen’s amended complaint being framed as a one-count action for general negligence only, LRMC argues that the amended complaint “clearly demonstrate[d] ... an action for medical malpractice because it is wholly predicated upon LRMC’s provision of food to a patient who was hospitalized and undergoing medical care.” While we recognize that nomenclature alone does not determine the nature of a cause of action, the problem with this argument is that it overlooks the cause and effect inherent in a medical malpractice case.

If the cause of an injury is effected by negligent medical care then, by definition, the complaint sounds in malpractice. § 766.106(l)(a). Chapter 766 presuit notice is required because the breach of a certain medical standard of care allegedly occurred. § 766.106(2). Conversely, if the cause of the injury is effected by a factor other than a failure of proper medical care, no presuit notice is required. See Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729, 731 (Fla. 4th DCA 2004) (holding that chapter 766 is inapplicable to a suit brought by a patient for injuries sustained when a medical center employee allegedly kicked the patient’s foot while attempting to kick the footrest of a chair); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251, 1251 (Fla. 1st DCA 2000) (holding that chapter 766 is inapplicable to a suit brought by a patient for injuries she suffered after she slipped while walking from her hospital bed to the bathroom). Food poisoning constitutes such a factor.

Tainted turkey, unless accidentally given in conjunction with a prescribed dietary regimen, does not involve medical care. See Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356, 358 (Fla. 3d DCA 2003) (holding that chapter 766 requirements were implicated when a hospital patient with specific hypoallergenic dietary needs was accidentally given non-hypoallergenic food). Because LRMC made no showing that Allen was prescribed a restricted diet or a diet that involved a treatment modality, the tainted turkey consumption did not involve medical care. “Not every wrongful act by a medical provider is medical malpractice.” Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006) (holding that burn injuries caused by scalding hot tea spilled by nurse onto patient constituted negligence claim, not a claim based on medical malpractice). Similarly, just because “conduct occurs in a medical setting does not necessarily mean it involves medical malpractice.” Robinson v. W. Fla. Reg’l Med. Ctr., Inc., 675 So.2d 226, 228 (Fla. 1st DCA 1996).

Our analysis is entirely consistent with the medical malpractice definition provided in section 766.106(l)(a) — -“a claim, arising out of the rendering of, or the failure to render, medical care or services.” Thus, the key inquiry is whether the alleged injury occurred during the rendition of medical care or services. Generally, this determination hinges upon whether the treatment modality involved the application of medical skill or knowledge. Silva v. Sw. Fla. Blood Bank, Inc., 601 So.2d 1184 (Fla.1992). Here, even though Allen consumed the turkey sandwich while a patient at LRMC, this occurrence was only incidental to the medical services provided and involved no medical skill or knowledge. For example, there is no dispute that Allen’s claim does not involve a misdiagnosis on admission or afterwards or any improper treatment. Rather, this is a simple negligence case involving Allen’s contracting of food poisoning after his hospital admission for an unrelated condition. Therefore, any liability of LRMC for Allen’s demise is not determined under the medical negligence standard of care established in section 766.102(1). To conclude, Allen did not allege that LRMC’s liability arose from any source other than the food prepared by its nonmedical staff. Indeed, the amended complaint alleged negligence in the improper maintenance, storage, and/or purchase of the ingredients used in preparing the food that was served to Henry Allen.

Because the trial court did not depart from the essential requirements of the law in denying LRMC’s motion to dismiss, we deny the petition for writ of certiorari.

Petition denied.

SALCINES and DAVIS, JJ., Concur.


text:
    Thomas P. DUCKETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-658.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2006.
   PER CURIAM.

In light of Mr. Duckett’s motion for rehearing, we have reviewed the claims raised in his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in their entirety, and we conclude that none presents a basis for relief. Therefore, we affirm.

Affirmed.

NORTHCUTT, STRINGER, and CANADY, JJ., Concur.


text:
    Jonathan MENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-477.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, Richard L. Polin, Bureau Chief, and David R. Ruffner, Certified Legal Intern, for ap-pellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Defendant appeals three issues stemming from a jury verdict adjudicating defendant guilty of one count of battery on a law enforcement officer, one count of resisting an officer with violence, and one count of first-degree criminal mischief. The trial court orally entered a directed verdict, reducing the first-degree criminal mischief charge to second-degree criminal mischief. This change was not reflected in the written judgment. As the State correctly concedes, the written judgment should be amended to reflect a conviction of second-degree criminal mischief. See McPhee v. State, 657 So.2d 70 (Fla. 3d DCA 1995). Accordingly, the case is remanded. In all other respects, the decision below is affirmed.


text:
    L.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-631.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


author: GROSS, J.

text:
    Shanika THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4709.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Shanika Thompson appeals her conviction for second-degree murder and contends that the evidence was insufficient to support the verdict. We affirm.

This case arose out of an argument that occurred between appellant and the victim, Alonso Meyers, which ended with a shooting at Meyers’s home on November 8, 2004.

Meyers was an 87 year old man. Although he was able to cook for himself and drive a car, he was unable to stand on his own without the aid of a walker or cane.

About five months before the shooting, appellant’s twin sister, Shamika Thompson, moved in with Meyers to help him out around the home. The house was a three bedroom, two bath house with a garage. The door from the garage opened into Meyers’s master bedroom; to get from the garage to the living room, one had to pass through the bedroom. Two other bedrooms were located on the other side of the living room. Shamika occupied one of those bedrooms.

At the time of the shooting, appellant was six months pregnant. She was also romantically involved in a relationship with Margaret Fullwood. On the day of the shooting, appellant, Fullwood, and Shami-ka went to Kyana Cook’s apartment to watch movies and talk. Cook’s apartment was a three minute walk from Meyers’s house. At Cook’s apartment, appellant and Fullwood got into an argument. Cook told appellant to leave her apartment. Shamika followed appellant and Fullwood outside into the yard. Appellant was so mad at Fullwood that she grabbed Full-wood’s purse and dumped the contents onto the ground. Fullwood then jumped on appellant, who yelled to Shamika to get Fullwood off of her. Shamika peeled Full-wood off of appellant.

To avoid further problems, Shamika told Fullwood to walk with her to Meyers’s house. She suggested that Meyers give Fullwood a ride home. Shamika told appellant to stay where she was. However, as Shamika and Fullwood walked to Meyers’s house, appellant followed behind them.

When Shamika reached Meyers’s home, Meyers opened the garage door for her and Fullwood. Appellant followed Shami-ka inside and sat in Meyers’s bedroom.

Shamika told Meyers that appellant and Fullwood had gotten into a fight. Meyers agreed to drive Fullwood home. Five months before, Fullwood told appellant that Meyers had offered Fullwood money for sex. At that time, appellant did not exhibit any hostility because of the solicitation. Meyers then asked Shamika to take Fullwood into her bedroom until Meyers was ready to go.

Shamika walked Fullwood across the living room to her bedroom. Then, she returned to Meyers’s bedroom. Appellant and Meyers conversed in a normal tone of voice. During the conversation, appellant got up and tried to walk over to Shamika’s bedroom to talk to Fullwood. Meyers stopped her and asked her where she was going. Meyers prevented appellant from going to speak to Fullwood.

Meyers told appellant to leave or he would kill her. At least six times, Shami-ka also told appellant to leave. With the assistance of his walker, Meyers went to his drawer and retrieved a gun from a bag.

Meyers, leaning on his walker, slowly approached appellant with the gun. Meyers never pointed the gun at appellant. He moved his hand back and forth, bending his arm at the elbow, telling appellant to “Get out. Get out.” As he was waving the gun, Meyers used his left hand to support himself with the walker.

Shamika asked appellant to leave, but appellant said she was calling the police. Appellant told Meyers that he was going to jail for pulling out a gun. As appellant was trying to call the police, Meyers poked her pregnant stomach three times with his cane and told her to put the phone down.

Appellant became angry. Suddenly, she dropped the phone and rushed Meyers. Shamika ran behind appellant and tried to pull her off Meyers. Upon hearing all the commotion, Fullwood ran in from the other bedroom and tried to get appellant off of the old man. Meyers lost his balance and Fullwood helped him to the floor. At this point, Meyers had the gun in his pocket.

While trying to hold appellant back from Meyers, Shamika told appellant to “just go.” However, she was “hyped.” She approached Meyers and took the gun out of his pocket. Still angry at Meyers, appellant shot Meyers in the abdomen as he lay on the ground. When the gun went off, Shamika was in the garage, behind appellant, no longer holding on to her. Shami-ka had moved away from her sister because she did not want to get hurt by the gun in her sister’s hands.

After the shooting, Shamika went “ballistic” and started walking around the garage in circles. Fullwood came out of the house, screaming and yelling. Appellant fled the scene.

Shamika called the police and told the dispatcher that she needed an ambulance. She informed the dispatcher that her sister, who was pregnant, had shot Meyers; she said that appellant had gotten into a fight, that the gun was pulled on her first, and then appellant somehow took the gun and shot Meyers. She further stated that appellant had left and that she did not know where she had gone. Shamika told the dispatcher that Meyers was talking, but that he was bleeding badly.

Meyers underwent surgery. Complications caused Meyers to be bedridden until his death, two months after the shooting. The medical examiner identified the cause of death as a pulmonary embolism, a complication of the gunshot wound.

On appeal, appellant argues that the trial judge erred in denying her motion for judgment of acquittal on the grounds that the state failed to prove that appellant acted with a depraved state of mind and that the evidence showed that the shooting was an accident, hence an excusable homicide.

The standard of review applicable when reviewing a motion for judgment of acquittal is de novo. Maglio v. State, 918 So.2d 369, 374 (Fla. 4th DCA 2005). “Generally, on a motion for judgment of acquittal, the court should not grant the motion unless, when viewed in a light most favorable to the state, the evidence does not establish the prima facie evidence of guilt.” Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA 1998). When moving for a judgment of acquittal based on the insufficiency of the evidence, the defendant admits not only the facts adduced in evidence, but also every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence. Boyce v. State, 638 So.2d 98, 99 (Fla. 4th DCA 1994). As the supreme court explained in Lynch v. State, 293 So.2d 44, 45 (Fla.1974):

The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge.

The concern of an appellate court is not the weight of the evidence, but its legal sufficiency, which is whether there is substantial, competent evidence to support the verdict. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981).

An act done with a “depraved mind” for the purpose of second-degree murder is one “done from ill will, hatred, spite or an evil intent.” Fla. Std. Jury Instr. (Crim.) § 7.4 (5th ed. 2005). Here, there was competent substantial evidence to support the conclusion that appellant acted with a depraved mind. See Gibbs v. State, 904 So.2d 432, 435 (Fla. 4th DCA 2005) (finding evidence sufficient to support a finding that defendant evinced depraved mind, so as to support conviction for second-degree murder where eyewitness evidence revealed that defendant pulled out gun, pointed it at victim, and admitted that he might have said, “If you don’t back up, I’ll shoot you.”); Smalley v. State, 889 So.2d 100, 103 (Fla. 5th DCA 2004) (finding evidence of a depraved mind for the purposes of a prosecution for second-degree murder when defendant testified that he was being threatened by the victim and another man, that he was hit in the face, and the gun “went off,” but other witnesses testified that victim was not threatening the defendant).

During the unfortunate fight, Meyers had put the gun away and was on the ground when the appellant “rushed him” and snatched the gun out of his pocket. At that point, the 87 year old Meyers, who could not stand without a walker, was as defenseless as a turtle. Larsen v. State, 485 So.2d 1372, 1373 (Fla. 1st DCA 1986) (acknowledging that age and physical characteristics may be taken into account in determining whether the defendant evinced a depraved mind). Appellant shot Meyers because she was angry that he poked her pregnant stomach with his cane, interfered in her fight with her girlfriend Fullwood, and, perhaps, for offering Full-wood money for sex. At the time of the shooting, Meyers was no threat to appellant.

We also reject appellant’s claim that the trial court erred in denying her motion for judgment of acquittal because the evidence “showed that Meyers was shot by accident and misfortune,” so that the homicide was excusable under section 782.03, Florida Statutes (2004). Appellant did not raise this issue at trial, so it is not preserved for appellate review. See § 924.051(3), Fla. Stat. (2004); Fla. R.Crim. P. 3.800(b). In any event, the record discloses enough evidence to create a jury question as to whether the shooting was accidental.

Affirmed.

SHAHOOD and HAZOURI, JJ., concur.


text:
    Joshua WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2269.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.

      Joshua Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

We dismiss this appeal because orders denying motions to mitigate brought pursuant to Florida Rule of Criminal Procedure 3.800(c) are not appealable. See Jackson v. State, 936 So.2d 775 (Fla. 5th DCA 2006).

DISMISSED.


text:
    Sean A. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3232.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Sean A. Walker, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Sean A. Walker appeals from an order summarily denying his rule 3.800(a) motion to correct illegal sentence, which he had filed in connection with one of his criminal cases. That order also prohibited him from filing any further pro se motions with respect to three lower tribunal eases. We affirm in part and reverse in part.

We affirm the summary denial of the rule 3.800(a) motion without further discussion. However, we grant relief on the prohibition of filing. As the state properly acknowledged in its response to this court’s limited order to show cause, the trial court should not have prohibited Walker from filing any further pro se motions in the cases listed without first providing him with notice and an opportunity to respond. See State v. Spencer, 751 So.2d 47 (Fla.1999); Martin v. Circuit Court, Seventeenth Judicial Circuit, 627 So.2d 1298 (Fla. 4th DCA 1993).

Affirmed in part, reversed in part, and remanded.

STEVENSON, C.J., WARNER and GROSS, JJ., concur.


text:
    Roberto G. ORDONEZ-MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-88.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before WELLS and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Irizarry v. State, 905 So.2d 160 (Fla. 3d DCA 2005) (trial court’s ruling on a motion for judgment of acquittal is affirmed on appeal if a rational trier of fact could find the existence of the elements of the offense beyond a reasonable doubt), review denied, 917 So.2d 194 (Fla.2005); Lee v. State, 869 So.2d 1251 (Fla. 3d DCA 2004) (admission of hearsay harmless beyond a reasonable doubt where it was cumulative of other evidence).


text:
    Henry WOJCICKI, Appellant, v. SOUTH FLORIDA TITLE AND ESCROW COMPANY, Arnold Weinkauf, and Candis Weinkauf, Appellees.
    No. 4D06-1889.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Henry Wojcicki, Hallandale, pro se.
    No appearance for appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Frederick Lamont BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1173.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    Clayton R. Kaeiser, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

We affirm Fredrick Lamont Bell’s conviction and sentence for attempted trafficking in cocaine as the conviction is supported by competent, substantial evidence. We also find no merit in Bell’s argument regarding the jury instruction on that charge, a charge to which he did not object and which, in light of the evidence, was not erroneous in any respect.

Affirmed.


text:
    Keith Donald BASSETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1390.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Francis v. State, 473 So.2d 672 (Fla.1985); Ray v. State, 403 So.2d 956 (Fla.1981).

STEVENSON, C.J., STONE and TAYLOR, JJ., concur.


text:
    C.P. MOTION, INC., Appellant, v. BAL BAY ASSOCIATES, INC., Appellee.
    No. 3D05-2588.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 2006.
    William J. Karoly, Jr., for appellant.
    Woodbury & Santiago and Michael P. Woodbury, Miami, for appellee.
    Before GERSTEN and WELLS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Cardinal Inv. Group, Inc. v. Giles, 813 So.2d 262 (Fla. 4th DCA 2002); Mayor’s Jewelers, Inc. v. Cal. Pub. Employees’ Ret. Sys., 685 So.2d 904 (Fla. 4th DCA 1996), review denied, 691 So.2d 1081 (Fla.1997), and cited cases; Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735 (Fla. 3d DCA 1982).


text:
    Colin MUIR, Appellant, v. Carol Ann MUIR, Appellee.
    No. 5D05-3675.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2006.

      Jason M. Gordon of Law Office of Jason M. Gordon, Cocoa Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

In Muir v. Muir, 925 So.2d 356 (Fla. 5th DCA 2006) (Muir I), we determined that, based on contract language in the marital settlement agreement, the retroactive reduction in alimony should commence on the date Appellant started making reduced alimony payments. While Muir I was pending, the order being challenged in the instant appeal was entered. It determines alimony arrearages in contravention of the settlement agreement and our mandate in Muir I. On remand, the court shall recalculate arrearages consistent with Muir I.

We have considered and rejected, without discussion, Appellant’s second point on appeal.

REVERSED and REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    AUTONATION, INC., Appellant, v. Vincent S. ARMIJO, Appellee.
    No. 4D06-3361.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Jon K. Stage, Paul R. Regensdorf and Eric K. Gabrielle of Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., Fort Lauderdale, for appellant.
    Scott M. Behren of Scott M. Behren, P.A., Weston, for appellee.
   PER CURIAM.

Vincent S. Armijo filed a confession of error with this Court. In the confession of error, Armijo stipulates that the trial court applied an incorrect legal standard concerning the construction of covenants not to compete in entering the order which Autonation, Inc. appeals in this case. As such, Armijo agrees with Autonation that this case on appeal should be reversed and remanded for further proceedings consistent with this opinion. We accept this proper confession of error and reverse.

Reversed and Remanded.

GUNTHER, STONE and TAYLOR, JJ., concur.