text:
    James WARE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0459.
    District Court of Appeal of Florida, First District.
    July 18, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 seeking post-conviction relief. In his motion, appellant alleged that he had a deal with the state that, if he pled guilty and testified against his co-defendant, he would be sentenced to time served; that although he did testify against his co-defendant, at his sentencing the state reneged on its agreement, resulting in a five-year probationary sentence; that his counsel was ineffective because counsel failed to object or explain to him that he was entitled to withdraw his plea; and that, had he known his rights, he would have withdrawn his plea. Because the motion stated a facially sufficient claim for relief and the trial court’s order summarily denying the motion failed to attach any portion of the record demonstrating that the claim was without merit, we reverse and remand. On remand, if the trial court again concludes that the record demonstrates that appellant’s claim is without merit, it shall attach to its order denying relief those portions of the record that do so; otherwise, it shall hold a hearing.

KAHN, C.J., WEBSTER and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.S., Father of L.B., A.B. and J.S., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. B.C., Mother of L.B., A.B. and J.S., Children, Appellant, v. Department of Children and Families, Appellee.
    Nos. 1D06-0224, 1D06-0226.
    District Court of Appeal of Florida, First District.
    July 18, 2006.

      Carole A. Vogel of Carole A. Vogel P.A., Jacksonville, for Appellant. (1D06-0224).
    Patricia L. Parker of Parker & Du-Fresne, P.A., Jacksonville, for Appellant. (1D06-0226).
    W. Dekle Day, Assistant General Counsel, Florida Department of Children and Families, Jacksonville, for Appellee. (1D06-0224 & 1D06-0226).
   PER CURIAM.

J.S., A.B., and L.B. are half-siblings who have the same mother and different fathers. The trial court terminated the parental rights of each parent, concluding the parents abandoned and neglected the children. The mother and J.S.’s father appeal, arguing the termination order is not supported by competent, substantial evidence. We agree and reverse.

Our review of the record reveals no competent, substantial evidence to support the statutory elements of abandonment or neglect for either parent; or, that the children’s life, safety, or health would be threatened by continued interaction with the mother. See §§ 39.01(1), 39.01(45), 39.806(l)(c), and 39.806(l)(e), Fla. Stat. (2005). The record also lacks competent, substantial evidence that the Department of Children and Families made any effort to provide necessary services as required under sections 39.01(45) and 39.806(l)(e).

Because the order terminating parental rights is not supported by the competent, substantial evidence necessary to support the statutory elements of the grounds upon which the termination was based, the order is REVERSED.

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


text:
    Bernard WIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-196.
    District Court of Appeal of Florida, First District.
    July 18, 2006.

      Bernard Wiggins, Pro Se.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s summary denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure (2005). We affirm the trial court’s summary denial on all grounds except one. Because we find that one claim is facially sufficient and not conclusively refuted by record attachments, we reverse the trial court’s order summarily denying this claim and remand for either an evidentiary hearing or for the court to attach further portions of the record which conclusively refute Appellant’s claim. See Fla. R.Crim. P. 3.850(d).

Appellant was convicted of burglary of an occupied dwelling with an assault and aggravated battery. Appellant’s conviction and sentence were affirmed by written opinion. Wiggins v. State, 821 So.2d 378 (Fla. 1st DCA 2002), rev. denied, 845 So.2d 894 (Fla.2003).

In his postconviction motion, Appellant relies on Delgado v. State, 776 So.2d 233 (Fla.2000), and alleges that counsel was ineffective for failing to object to the omission of “surreptitiously” to modify “remaining in” in the jury instruction for burglary. Appellant correctly states that this version of the instruction was applicable to his case because Delgado issued three months prior to Appellant’s trial. Moreover, Appellant’s offense was committed on December 25,1999, which was prior to the retroactivity date included in the statute that superseded the supreme court’s decision. See § 810.015(2), Fla. Stat. (2001). Because the jury instruction applied, Appellant alleges that he was prejudiced by his counsel’s failure to object to the incorrect instruction because he would not have been convicted of burglary if the jury knew that this instruction required Appellant to surreptitiously remain in the apartment.

In Delgado, the supreme court held that if a person is licensed or invited to enter a dwelling or other building, he cannot be convicted of burglary under the “remaining in” theory unless the person surreptitiously remains on the premises. Id. at 240. Delgado stands for the proposition that “evidence of a crime committed inside the dwelling ... of another cannot, in and of itself, establish the crime of burglary. Stated differently, the State cannot use ‘the criminal act to prove both intent and revocation of the consent to enter.’ ” State v. Ruiz, 863 So.2d 1205, 1211 (Fla.2003) (citing Delgado v. State, 776 So.2d 233, 238 (Fla.2000)). Conviction under a general verdict, as here, is improper when it rests on multiple bases, one of which is inadequate. Delgado, 776 So.2d at 241.

Based on our review of the record portions attached to the trial court’s summary denial, the State argued that the jury could convict Appellant of burglary if he either entered the premises without the owner’s consent and with the intent to commit a felony therein, or if he remained in the premises after the owner withdrew her consent after Appellant began to batter the victim. The State’s second argument is without merit under Delgado. Conviction under a general verdict is improper when it rests on multiple bases, one of which is inadequate. Id. Therefore, we reverse the trial court’s summary denial of Appellant’s facially sufficient claim and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

BENTON, POLSTON and THOMAS, JJ., concur.


text:
    Reginald McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0820.
    District Court of Appeal of Florida, First District.
    July 18, 2006.
    Reginald McCray, pro se, Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant was convicted following a jury trial of burglary of a dwelling with persons assaulted and aggravated battery with great bodily harm. He filed the present motion alleging, among other claims, that the prosecution knowingly used perjured testimony at trial and that his counsel was ineffective for failing to investigate and call a defense witness. Notwithstanding the state’s acknowledgment below that an evidentiary hearing was required as to these claims, the trial court summarily denied them.

Because a prosecutorial misconduct claim may and should be raised on direct appeal, it is not a cognizable claim for purposes of rule 3.850. Spencer v. State, 842 So.2d 52, 60 (Fla.2003). However, postconviction motions must be liberally construed. See Gust v. State, 558 So.2d 450 (Fla. 1st DCA 1990). While appellant framed the issue as one of prosecutorial misconduct, it is clear that his real claim is one of newly discovered evidence, an issue properly raised in a rule 3.850 motion. Padron v. State, 769 So.2d 432 (Fla. 2d DCA 2000). Appellant’s claim is based on an affidavit of the victim retracting his trial testimony. Because the recantation is not inherently incredible as a matter of law and is material to appellant’s verdict, an evidentiary hearing is required to determine whether it in fact constitutes newly discovered evidence. See Stephens v. State, 829 So.2d 945 (Fla. 1st DCA 2002). Therefore, we reverse and remand this claim for an evidentiary hearing.

Appellant also stated a facially sufficient claim of ineffective assistance of counsel for failing to investigate and call a witness by alleging the identity of the potential witness, the substance of the witness’s testimony, an explanation of how the omission of this testimony prejudiced the outcome of the case, and a representation that the witness was available for trial. See Nelson v. State, 875 So.2d 579 (Fla. 2004). The trial court appears to have concluded that appellant’s counsel made a tactical decision not to call the witness. Where a trial court summarily denies such a claim, it must attach portions of the record which conclusively refute the mov-ant’s allegations. Jackson v. State, 789 So.2d 1218, 1220 (Fla. 1st DCA 2001). In this case, the trial court based its conclusion on a statement by appellant’s counsel that the witness in question would not be testifying. However, this statement, alone, does not conclusively show that the decision was tactical because the record does not include counsel’s reasons for not calling the witness. Accordingly, we conclude that the record does not conclusively refute appellant’s claim and, therefore, reverse and remand for an evidentiary hearing on this issue as well.

We affirm the summary denial of the remaining issues raised by appellant’s motion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


text:
    Alice M. BEBEE, Appellant, v. COUNTY OF VOLUSIA and Volusia County Risk Management, Appellees.
    No. 1D06-0534.
    District Court of Appeal of Florida, First District.
    July 18, 2006.

      Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, and Mark A. Zimmerman of James & Zimmerman, Deland, for Appellant.
    C. Anthony Schoder, Jr. of Smith & Schoder, L.L.P., Daytona Beach, for Ap-pellees.
   PER CURIAM.

Appellee’s motion to remand is granted. The order denying the claim for attorney’s fees and costs is reversed, and the matter is remanded to the Judge of Compensation Claims for further proceedings. See Villazano v. Horace Bell Honey Co., 928 So.2d 515 (Fla. 1st DCA 2006). All pending motions are denied as moot.

BARFIELD, VAN NORTWICK, and LEWIS, JJ., Concur.


text:
    Carlos D. COTTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0969.
    District Court of Appeal of Florida, First District.
    July 18, 2006.
    Carlos D. Cotton, pro se, Petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We grant the petition for belated appeal and hereby reinstate the direct criminal appeal in case number 1D04-3485, which was dismissed when counsel failed to file a conformed copy of the judgment and sentence on appeal after being directed to do so. The clerk of the circuit court shall return the record in that case to this court within 30 days. Jurisdiction in that proceeding is relinquished to the trial court for a period of 30 days with directions to consider the appointment of the public defender if petitioner so qualifies.

ERVIN, BENTON, and BROWNING, JJ., Concur.


text:
    José P. MARTINEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1753.
    District Court of Appeal of Florida, First District.
    July 18, 2006.
    José P. Martinez, pro se, Petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed a belated appeal from the February 1, 2006, order denying motion to withdraw plea in Alachua County Circuit Court case numbers 01-2004-CF-1164-A and 01-2004-CF-2429-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

ERVIN, BENTON, and BROWNING, JJ., Concur.


author: COPE, C.J.

text:
    Martin J. WALTERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-3168.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
   COPE, C.J.

Martin Walters (“the defendant”) appeals his convictions for attempted second degree murder with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. We reverse.

The defendant and Charlotte Briggs (“Briggs”) were involved in a romantic relationship. In August 2002, the two became involved in an altercation that culminated in a firearm being shot and both of them sustaining minor injuries. However, when they called 911 and initially spoke with the investigating police officers, they reported a concocted story that they had been the victims of a home invasion robbery. During the investigation only one bullet was recovered and gunshot residue was found on both the defendant and Briggs. The police concluded that the story about the robbery was untrue and questioned both the defendant and Briggs. During questioning, Briggs told the officer that the defendant had pulled a gun, threatened to kill her, and fired the weapon twice, injuring her arm and shoulder. The same officer then questioned the defendant. The defendant’s version was that it was Briggs who shot the firearm once into the floor, pointed it at him, and then the weapon accidentally fired, wounding his thumb.

The defendant’s first issue on appeal is that it was error to allow the police officer to testify, over objection, as to the statements Briggs made to him during his investigation. We agree. The trial court ruled that Briggs’ statement to the police officer that the defendant had shot her was an excited utterance. However, for a statement to be admissible as an excited utterance:

(1) the declarant must have experienced or witnessed an event startling enough to cause nervous excitement; (2) the statement must have been made while under the stress of excitement caused by the event; and (3) the statement must have been made before the declarant had time to contrive or misrepresent.

Evans v. State, 838 So.2d 1090, 1093 (Fla. 2002); § 90.803(2), Fla. Stat. (2002).

Here, three hours had elapsed since the startling event and, more importantly, Briggs, the declarant, had in fact misrepresented what had occurred by concocting a story that she and the defendant had been victims of a home invasion robbery. The state concedes that her statement to the police officer cannot qualify as an excited utterance and, as a result, was inadmissible hearsay. The officer should not have been permitted to testify about Briggs’ statement to him that the defendant had shot her. We reverse and remand for a new trial. In light of this ruling, we need not reach the other claims of trial error.

On the defendant’s final point on appeal, we reverse his adjudication of guilty of possession of a firearm by a convicted felon and remand for a new trial. In this case, the trial court bifurcated the proceedings. In the first phase, the court conducted a jury trial on attempted murder and aggravated battery.

After the jury found the defendant guilty, the court proceeded to the second phase: the charge of possession of a firearm by a convicted felon. The trial court reasoned that all of the elements of the firearm charge had been established during the first phase. The jury had convicted the defendant of attempted murder with a firearm and aggravated battery with a firearm. This established that the defendant had possessed a firearm. The defendant had testified in the first phase and admitted that he was a convicted felon. The trial court concluded this admission sufficiently established that the defendant was a convicted felon. Accordingly, without reconvening the jury and over the defendant’s objection, the trial court adjudicated the defendant guilty of the offense of possession of a firearm by a convicted felon. This procedure was incorrect.

This was a jury trial case. See Fla. R.Crim. P. 3.251, 3.260. The factual determinations of guilt or innocence needed to be made by the jury. “The defendant declined to stipulate that the trial judge could determine the existence of the prior convictions, so the defendant was entitled to have a jury determination that he was a convicted felon.” Jackson v. State, 881 So.2d 711, 716 (Fla. 3d DCA 2004) (citations omitted). It was error for the trial court to make the factual determination, over the defendant’s objection, that the defendant was guilty of the offense of possession of a firearm by a convicted felon. The fact that the defendant possessed a firearm was established by the verdict in phase one. However, the jury did not make a finding that the defendant was a convicted felon.

The appropriate procedure in a bifurcated trial is to have the jury reconvene in the second phase for the trial of the charge of possession of a firearm by a convicted felon. In the second phase, the jury would be instructed that the fact that the defendant possessed a firearm had already been established by the verdict in the first phase. The State must then introduce evidence that the defendant is a convicted felon. In this case the defendant had admitted in the first phase that he was a convicted felon, and the State may, of course, rely on that admission in phase two. The jury then deliberates and returns a verdict of guilt or innocence on the charge of possession of a firearm by a convicted felon. See id. at 716-17.

Reversed and remanded for a new trial.


text:
    EXPERT INSTALLATION SERVICE, INC., Petitioner, v. Patricia FUERTE, Hammocks Manor Homes, Inc., Pool Tech of Miami, Inc., Robico Shutters, Inc., and F.D.I. Builders, Inc., Respondents.
    No. 3D05-2607.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren B. Kwavnick, Ft. Lauderdale, for petitioner.
    Guillermo F. Mascaro, Coral Gables; Sinclair, Louis, Heath, Nussbaum & Za-vertnik and John L. Zavertnik, Miami, for respondents.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   COPE, C.J.

Expert Installation Service, Inc. (“Expert”) petitions for a writ of certiorari to quash an order granting Patricia Fuerte’s (“Fuerte”) motion for protective order prohibiting petitioner from taking her deposition. We grant the petition and quash the trial court’s protective order.

Fuerte is a plaintiff in a personal injury lawsuit against several defendants, including Expert. Fuerte purchased hurricane shutters for her home. She claims the hurricane shutters were delivered and stored in her garage in a negligent manner. The shutters fell on her, resulting in injury.

Fuerte’s deposition was begun on March 1, 2004 and completed on August 20, 2004. However, Expert was not a party to the lawsuit until March of 2005 when Robico Shutters, Inc. filed a Fourth Party Complaint against petitioner for contribution and indemnity. More importantly, Fuerte then filed a Second Amended Complaint adding petitioner as a defendant.

Expert filed a notice of taking Fuerte’s deposition. Fuerte filed a motion for protective order arguing that her deposition had already been taken for over seven hours so that it was unlikely petitioner would have any new questions and, if so, those could be asked by written interrogatories. In addition, Fuerte argued that Expert and Robico Shutters, Inc., a defendant in the case at the time of her deposition and who was represented at the deposition, share common ownership because they share the same principal, their offices are in the same location, and several employees have worked for both companies. Although the two corporations are under common ownership, they are separate corporations and represented by separate counsel in this lawsuit.

The trial court granted the protective order, and this petition for certiorari follows.

“[A]n order denying discovery is not ordinarily reviewable by certiora-ri. ...” Medero v. Florida Power & Light Co., 658 So.2d 566, 567 (Fla. Sd DCA 1995) (citation omitted). However, this court has recognized that an order which has the effect of denying a party the right to depose an alleged material witness inflicts the type of harm that cannot be corrected on appeal. Id. Oral depositions are considered essential by most trial attorneys. Beekie v. Morgan, 751 So.2d 694, 697 (Fla. 5th DCA 2000). Here, Fuerte chose to add Expert as a defendant and Expert should not be denied the opportunity to take the deposition of Fuerte who is undoubtedly a material witness.

The cases relied upon by Fuerte are readily distinguishable. The decision in Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980), involved the trial court’s discretion in denying a request to depose a plaintiff where default had been entered against defendant, plaintiff had submitted to a compulsory physical examination, and discovery on damages was propounded through written interrogatories. The present case is not a default case. In American Southern Co. v. Tinter, Inc., 565 So.2d 891 (Fla. 3d DCA 1990) there was no abuse of discretion in granting a protective order where a defendant attended two depositions, failed to ask any questions, and later sought to depose the same witnesses. That is not the situation here.

We conclude that the trial court departed from the essential requirements of law and quash the order now before us.

Petition granted.


author: RAMIREZ, J.

text:
    CINCINNATI EQUITABLE INS. CO., et al., Appellants, v. Edith HAWIT, Appellee.
    No. 3D05-1796.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer and Brigid F. Cech, Fort Lauderdale, and Norman S. Segall, Miami, for appellants.
    Lopez & Best and Virginia M. Best, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   RAMIREZ, J.

Cincinnati Equitable Insurance Company and Amedex International Corporation appeal a final judgment awarding attorney’s fees in favor of appellee Edith Hawit. In the appeal, Cincinnati Equitable and Amedex include a challenge to the court’s denial of their Motion to Dismiss for Failure to Prosecute. We affirm the trial court’s denial of Cincinnati Equitable’s and Amedex’s Motion to Dismiss for Failure to Prosecute, but reverse the court’s assessment of interest on attorney’s fees and its determination of entitlement to attorney’s fees for time spent litigating the amount of attorney’s fees.

After a jury trial in September of 1999 on Cincinnati Equitable’s denial of Hawit’s claim for insurance benefits arising out of a hospitalization for a surgical procedure, the jury found that Cincinnati Equitable had waived its right to deny payment under the insurance policy for the inaccurate and incomplete information in the application or for the failure to comply with the ten-day notice requirement in the policy. It also found that Amedex, whose agent personally sold Hawit her policy, violated section 626.911, Florida Statutes. The court did not enter final judgment and, over two years later, Cincinnati Equitable and Amedex filed a Motion to Dismiss for Failure to Prosecute, which the court denied. The parties subsequently settled the matter, but reserved the issue of attorney’s fees for determination.

On August 10, 2004, the court concluded that Hawit was entitled to attorney’s fees. The remaining issues related to attorney’s fees were referred to a general magistrate for a hearing. The general magistrate determined that Hawit was entitled to attorney’s fees and costs in the amount of $112,432.96. That amount included 8.1 hours Hawit’s counsel spent litigating whether the fee was limited to an $8,000.00 maximum. Cincinnati Equitable and Ame-dex filed exceptions to the Magistrate’s Report, which the trial court denied. The court ultimately sustained the Magistrate’s Report in all respects and entered a final judgment in the amount of $112,432.96. Cincinnati Equitable and Amedex then appealed.

In its calculation, the general magistrate assessed interest on the attorney’s fees from the date the jury rendered its verdict in favor of coverage. We hold that prejudgment interest on an award for attorney’s fees accrues from the date entitlement is determined.

When calculating interest on attorney’s fees, the interest on the award “accrues from the date entitlement to attorney’s fees is fixed through agreement, arbitration award, or court determination, even though the amount of award has not been determined.” Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929, 930-31 (Fla.1996). The Florida Supreme Court in Quality Engineered Installation reasoned that the burden of nonpayment should be placed on the party fixed with the obligation to pay the attorney’s fees, and that using the date of entitlement as the date of the accrual of interest “serves as a deterrent to delay by the party who owes the attorney fees.” Id. at 931. Similarly, in National Portland Cement Co. v. Goudie, 718 So.2d 274 (Fla. 2d DCA 1998), the court held that the plaintiff was not entitled to fees until the date of the court’s order awarding attorney’s fees and costs. Id. at 275-76.

In the case before us, because the court determined entitlement to attorney’s fees on August 10, 2004, the general magistrate should have calculated the interest on the attorney’s fees from that date instead of the date the jury rendered its verdict on coverage in September of 1999. Therefore, the general magistrate’s calculation of interest on the attorney’s fees was incorrect.

We agree with Cincinnati Equitable and Amedex that the general magistrate erroneously assessed attorney’s fees for time spent determining the amount of fees. Although the court may award attorney’s fees for litigating the issue of entitlement to attorney’s fees, the court may not award attorney’s fees for time spent litigating the amount of attorney’s fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993). Because the court’s determination that the fee should not have been limited to $8,000.00 results in time spent litigating the amount of attorney’s fees, the general magistrate should not have included the 8.1 hours in its calculation.

We find no error in the trial court’s denial of Cincinnati Equitable’s and Amedex’s motion to dismiss for failure to prosecute. The court properly denied the motion because Hawit had requested the court take action, either by way of entering a final judgment or ordering a hearing.

In Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996), this Court held that:

[W]henever a dispositive motion is pending before the court, and the parties are awaiting the court’s ruling on that motion, the duty to proceed rests squarely upon the court. During that period of the court’s deliberation, the cause cannot be dismissed for lack of record activity.

(emphasis added). Furthermore, while the preparation of documents rests within the responsibility of the parties to a suit, it is the duty of the court to enter a judgment on a verdict, and there is no other entity that can exercise that power. See Carlson v. Jeflis Prop. Mgmt. Corp., 904 So.2d 642, 645 (Fla. 2d DCA 2005).

Therefore, once parties to a suit have fulfilled their duties, it is the court’s responsibility to proceed. Although there was no record activity on the docket, Haw-it requested the court take some action either by entry of a final judgment or by setting a hearing on the issue of attorney’s fees and costs. Consequently, once she made her request, the court had the responsibility to act upon the request, and its denial of Cincinnati Equitable’s and Ame-dex’s Motion to Dismiss for Lack of Prosecution was proper.

Affirmed in part, reversed in part and remanded to recalculate the amount of attorney’s fees and the interest on these fees.


text:
    David Michael WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2467.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.

      Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, J.

We deny appellee State of Florida’s motion for rehearing, and grant its motion for clarification. This Court’s May 24, 2006 opinion is withdrawn and the following opinion is substituted in its stead.

David Michael Walker appeals his judgment of conviction and sentence for robbery by sudden snatching. We reverse because the State failed to prove beyond a reasonable doubt that the victim knew that her property was being taken during the course of the taking.

The victim testified that she was on a public bus on her way to take care of business. She saw Walker and a female enter the bus. The victim had a raincoat and a black purse with long straps with her. When the victim rang the bus to stop, she opened her purse to get her umbrella. She saw her wallet and makeup case inside. She got her umbrella, closed her purse, and placed it under her arm. The bus then stopped and she got up to walk to the front of the bus. She put her raincoat on and held her purse outside of her raincoat.

When the victim reached the front of the bus to exit, the female jumped in front of her and did not allow her to get off. The female bent down, looked for something inside of her [the female’s] bag, and told her to wait a minute. She felt a “tug” on her purse, like a push. She turned around and looked at Walker, and she told him “Sir, please don’t push. We are all getting off the bus if the lady let’s [sic] me get off.” She thought that something weird was happening when she felt her bag being tugged. She pulled the bag in front of her. She wanted to keep her purse safe. She heard Walker say, “Got it.” She, along with Walker and the female, then exited the bus. She proceeded to a taxi stand, and when she arrived home approximately five minutes later, she realized that her purse was open, and that her wallet and make-up case were gone.

The victim also testified that she was not clutching her purse when Walker bumped into her. She only clutched her purse when she felt the tugging and the bump because she felt that something was going on that was not right. She never felt her bag being opened and she never felt or saw any items being removed from her purse while she was on the bus. When she turned around and saw Walker, Walker had something wrapped around his arm which she could not identify. When she felt the “tug,” she could not tell the purpose of it. If she had known that her items were being taken out of her wallet, right there she would have told the driver to call the police — that she was being robbed.

The State charged Walker with robbery by sudden snatching. The court instructed the jury on the crime of petit theft as a lesser included offense of the crime charged. Walker moved for judgment of acquittal which the court denied. We find that the court improperly denied the motion.

Section 812.131(1), Florida Statutes (2000), defines robbery by sudden snatching as follows:

‘Robbery by sudden snatching’ means the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking. In order to satisfy this definition, it is not necessary to show that: (a) The offender used any amount of force beyond that effort necessary to obtain possession of the money or other property; or (b) There was any resistance offered by the victim to the offender or that there was injury to the victim’s person.

(emphasis added). The language of the statute provides that the victim must become aware of the sudden snatching at the time during which the snatching is taking place. This is as an essential element of the crime under section 813.131(1).

In Brown v. State, 848 So.2d 361 (Fla. 4th DCA 2003), a case factually similar to this case, the Fourth District likewise interpreted the statute to require that the victim become aware of the sudden snatching while the robbery is underway. The victim in Brown sat on a park bench with a Mend on the day of the robbery. She placed her purse on the bench near her, but apart from her person. The victim’s Mend noticed that the defendant was riding a bicycle past them and then they heard a rustling in the bushes. Her friend looked in that direction and saw the defendant running away. The victim also turned and then, at that point, the victim became aware that her purse had been taken. The jury convicted the defendant of robbery by sudden snatching. Id. at 364. The Fourth District disagreed, finding that the defendant should be acquitted of the charge of robbery by sudden snatching because the victim failed to have possession, and the victim herself made it obvious that she was unaware of the snatching at the time during which the robbery occurred. Id.

We agree with the Fourth District holding in Brown and see no factual distinction here, in light of the victim’s own testimony in this case. Even if we take the facts in the light most favorable to the State, as we are obligated to do, the evidence does not show that the victim was aware that anything had been taken at the time during which the robbery occurred. The victim actually admitted that, had she known of the robbery when she was on the bus, she would have instructed the driver to contact the police and would have also told him that she was being robbed. She did neither. And, it is undisputed that she did not discover that her property was missing until after she arrived home shortly after the robbery.

We therefore reverse Walker’s conviction and sentence of robbery by sudden snatching, and remand to the trial court with directions to enter judgment for petit theft.


author: SHEPHERD, J.

text:
    D.T.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2390.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 10, 2006.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Felming, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

Appellant, D.T.C., appeals an order finding he committed the offense of unlawful possession of a firearm by a minor but withholding adjudication and placing D.T.C. on probation with conditions, including seventy-five hours of community service. We affirm.

The order on appeal was entered in writing on September 8, 2005. On September 22, 2005, D.T.C. filed a notice of appeal of that order. The next day, September 23, 2005, the State filed a motion to modify plea, arguing D.T.C. should have received 100 hours of community service instead of seventy five. See § 790.22(5)(a), Fla. Stat. (2005)(“A minor who violates subsection (3) [possession of a firearm by a minor] commits a misdemeanor of the first degree ... and ... shall be required to perform 100 hours of community service.”). The trial court docket reflects the trial court orally granted this motion on October 5, 2005.

Based on a plain reading of Florida Rule of Juvenile Procedure 8.135(a), the State was precluded from filing its motion to modify plea the day after D.T.C. filed his notice of appeal. Rule 8.135(a) states:

Rule 8.135. Correction of Disposition or Commitment Orders
(a) Correction. A court at any time may correct an illegal disposition or commitment order imposed by it. However, a party may not file a motion to correct under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or duriny the pendency of a direct appeal.

Rule 8.135(a)(emphasis added). It follows then that the trial court lacked jurisdiction to entertain the State’s motion.

Because the State’s motion was filed one day after D.T.C. filed his notice of appeal, D.T.C. had no reason to know at the time he filed his notice that the State would seek to increase his seventy-five hour sentence. Nevertheless, the sole challenge D.T.C. raises in his initial brief on this appeal is that the trial court violated double jeopardy by orally increasing his sentence to 100 hours. As we have stated, the trial court lacked jurisdiction to consider the State’s motion. Thus, there is no double jeopardy issue to be considered. In addition, because the State did not cross-appeal the improper sentence, we are unable to adjust the sentencing error on this appeal.

Accordingly, we affirm the trial court’s September 8, 2005 order.


author: GREEN, J.

text:
    Manuel CHAMIZO, III, Appellant, v. Samuel FORMAN, Appellee.
    No. 3D05-1875.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Alvarez, Eljaiek & Rodriguez, P.L., and Benjamin R. Alvarez, Miami, for appellant.
    Liliana V. Avellan, Hollywood, for appel-lee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   GREEN, J.

Appellant/Plaintiff, Manuel Chamizo, appeals from an order awarding Appel-lee/Defendant, Samuel Forman, attorney’s fees as the prevailing party in the suit below. We affirm.

A final summary judgment in the action below was entered in Forman’s favor. The judgment also determined that For-man was entitled to attorney’s fees as the prevailing party:

The Court finds that Defendant, Samuel Forman, is the prevailing party and is entitled to an award for attorney’s fees and costs against Plaintiff.... SAMUEL FORMAN shall recover attorney’s fees and costs from Plaintiff, the amount to be determined by this Court at another hearing, (emphasis added)

We per curiam affirmed the final summary judgment in its entirety in an earlier appeal. Chamizo v. Forman, 910 So.2d 272 (Fla. 3d DCA2005).

Forty-four days after the entry of the final judgment, Forman filed his motion for attorney’s fees and costs. Chamizo objected on the grounds that the motion was untimely pursuant to Florida Rule of Civil Procedure 1.525, which requires motions seeking fees and costs to be served within thirty days after the filing of the judgment. The trial court awarded For-man $14,995.40 in attorney’s fees and costs. Chamizo appeals.

We find no merit to Chamizo’s claim that the motion for fees was untimely. The final judgment in this case had specifically awarded fees and costs to Forman. The court reserved its jurisdiction solely to allow it to determine the amount of said fees and costs. Given the fact that fees and costs had already been awarded by the final judgment and affirmed by this court, the timeliness of Forman’s motion is a non-issue.

Accordingly, we affirm.

      . This rule provides:
      Any party seeking a judgment taxing costs, attorney's fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

      . Cf. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006)(court’s reservation of jurisdiction to determine amount of fees and costs where award of same has yet to be determined, does not extend 30-day filing requirement of Rule 1.525).


author: SUAREZ, J.

text:
    Sean L. McCLAIN, Appellant, v. SMJ, a minor by and through his next best friend, Pamela HATCHER, Appellee.
    No. 3D05-1029.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Christina A. McKinnon, for appellant.
    Kenneth M. Kaplan, for appellee.
    Before GREEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Sean L. McClain appeals the trial court’s entry of a permanent domestic violence injunction regarding his minor child, SMJ. We affirm because there is competent substantial evidence in the record to support the trial court’s finding that the child had been the victim of domestic violence or was in imminent danger of becoming the victim of domestic violence. § 741.30(1)(a), Fla. Stat. (2005); § 741.28(2), Fla. Stat. (2005) (defining domestic violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member”); see R.H. v. State, 709 So.2d 129 (Fla. 4th DCA 1998) (holding that son striking his mother was an act of “domestic violence” under section 741.28, Fla. Stat.).

Affirmed.


text:
    Samuel FELDER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-1218, 3D06-1084.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Samuel Felder, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

We affirm the trial court’s denial of the defendant’s motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and deny his petition for writ of mandamus. See Robinson v. State, 925 So.2d 373 (Fla. 5th DCA 2006).


text:
    Ricky KEMP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-730.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Robinson v. State, 575 So.2d 699 (Fla. 1st DCA 1991); Young v. State, 562 So.2d 370 (Fla. 3d DCA 1990).


text:
    The STATE of Florida, Appellant, v. George AUSTIN, Appellee.
    No. 3D05-1447.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 10, 2006.

      Charles J. Crist, Jr., Attorney General, and Lueretia A. Pitts, Assistant Attorney General, for appellant.
    Bennett H. Brumraer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellee.
    Before GREEN, RAMIREZ and CORTINAS, JJ.
   PER CURIAM.

We reverse and remand this case for consideration in light of State v. Frierson, 926 So.2d 1139 (Fla.2006), as the trial court did not have the benefit of the Frierson opinion. On remand, the trial court should review and reconsider the facts after the investigatory stop to determine whether the outstanding arrest warrant, which produced the search incident to an arrest, was sufficiently attenuated from the stop.

Specifically, the trial court should consider “three factors: ‘(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.’ ” Frierson, 926 So.2d at 1143 (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir.1997)).

Reversed and remanded for proceedings consistent with this opinion.


text:
    FLORIDA STATE CONSTRUCTORS SERVICE, INC., a Florida Corporation, and Joseph Weinstock, Appellants, v. Robert MINER and Miami-Dade County Construction Trades Qualifying Board, Appellees.
    No. 3D05-2061.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Kneski & Kneski and Peter Kneski, Miami, for appellants.
    Green, Kahn, Piotrowski and Bruce Hornstein, Miami Beach, for appellees.
    Before GERSTEN, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Robins v. Fla. Real Estate Comm’n, 162 So.2d 535, 538 (Fla. 3d DCA 1964).


text:
    The STATE of Florida, Appellant, v. Milton HARRELL, Appellee.
    Nos. 3D05-2145, 3D05-2144.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.
    Before GERSTEN, and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

The State of Florida (“State”), appeals the trial court’s downward departure sentence. The State asserts that the trial court erred in issuing a downward departure sentence without legal justification. The appellee commendably concedes error, and we agree. See § 921.0026, Fla. Stat. (2005); State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006); State v. Ford, 739 So.2d 629 (Fla. 3d DCA 1999); State v. Ashley, 549 So.2d 226 (Fla. 3d DCA 1989).

Accordingly, we reverse and remand for re-sentencing. On remand, Harrell shall have the opportunity to withdraw his plea if he so desires.

Reversed and remanded.


text:
    Mike McGREGOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0001.
    District Court of Appeal of Florida, First District.
    July 20, 2006.
    Mike McGregor, pro se, Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his posteonvietion motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of the appellant’s first and third claims without further discussion. However, we reverse the trial court’s denial of the appellant’s second claim because it is not conclusively refuted by the record and requires an evidentiary hearing.

On February 27, 2003, the appellant pled no contest to possession of a firearm by a convicted felon, attempted escape, aggravated fleeing and eluding, and escape. On June 9, 2004, the appellant filed a motion seeking postconviction relief. In his second claim, the appellant alleged that his counsel was ineffective for failing to advise him that he had a viable defense to the charge of escape because the prosecution was commenced outside the applicable statute of limitations. The appellant alleges that he would not have entered his plea if he had been aware of this defense. The appellant alleges that he escaped from county jail on May 26, 1996, and the capias against him was not executed until December 18, 2002. Because escape is a second-degree felony, prosecution was required to be commenced within three years. § 775.15(2)(b), Fla. Stat. (1995). The statute of limitations for a charge of escape begins to run the day after the offense was committed, so it would have started on May 27, 1996. Newman v. State, 707 So.2d 811 (Fla. 1st DCA 1998). The execution of the capias was clearly outside of the three-year time limit.

Moreover, there is no evidence in the record showing that the state conducted a reasonable search in an attempt to locate the appellant so it is unclear whether the time period could have been extended by three years. See § 775.15(6), Fla. Stat. (1995); Morgan v. State, 888 So.2d 128, 129 (Fla. 3d DCA 2004)(holding that an evidentiary healing would be required to determine whether the statute of limitations would have been extended for an additional three years). Even if the additional time was applicable to the appellant’s case, the statute of limitations would have been extended only until May 27, 2002, and the appellant alleges that the capias was not executed until December 18, 2002. Because the appellant’s claim of ineffective assistance of counsel was legally sufficient, it was error for the trial court to summarily deny the claim. We therefore reverse the trial court’s denial of the appellant’s second claim and remand for an evidentiary hearing.

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

KAHN, C.J., BENTON and LEWIS, JJ., concur.


text:
    George WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2055.
    District Court of Appeal of Florida, First District.
    July 20, 2006.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, George Whitfield, challenges his burglary conviction, raising three arguments on appeal, only one of which merits discussion. Because we agree that the trial court abused its discretion in prohibiting defense counsel from cross-examining two witnesses about the exculpatory portion of appellant’s statement to police after allowing the State to present the incriminating portion of his statement, we reverse appellant’s burglary conviction and remand for a new trial on the burglary charge.

Appellant was charged by amended information with burglary of John Wilson’s dwelling, possession of cocaine, petit theft, and possession of drug paraphernalia for use. The offenses allegedly occurred on September 1, 2004.

Just prior to trial, the State filed a Motion in Limine, seeking to prevent appellant from “elicitfing] his self-serving, hearsay statements at the time of his arrest.” Therein, the State argued that the evidence should not be admitted because it did not fall within any exception to the hearsay rule and was not admissible under any other principle of fairness, such as the rule of completeness. Defense counsel countered that the statements should be admitted “out of fairness and completeness,” because they supported appellant’s affirmative defense of consent, and because they were spontaneously made. The trial court reserved ruling on the matter.

During trial, John Wilson, the victim, testified that he had known appellant for “maybe ten, 15, 20 years” and that appellant had visited him two or three times in the past two-and-a-half years. On August 31, 2004, Wilson was arrested and taken to jail; he left $205 in paper money and $3 in change on his kitchen counter before going to jail. None of the windows of his apartment were broken when Wilson left for jail. When he later returned to his apartment, Wilson found that a window was broken and the money was missing from the counter. Wilson testified that appellant did not have a key to his apartment, had never spent the night at his apartment, and had never been at his apartment when Wilson was not there. Wilson did not give appellant permission to enter his apartment on August 31 or September 1, 2004.

Arthur Lee, Wilson’s landlord, testified that on September 1, 2004, he became suspicious when he noticed a light on and a newly broken window at Wilson’s apartment because he knew that Wilson had been arrested the day before and was not home. Lee called the police after he saw appellant sleeping on a bed inside the apartment. Lee never gave appellant permission to be in the apartment.

On cross-examination, Lee testified that appellant did not appear startled or try to run away when he was awakened by Deputy Behl, who responded to the scene. When defense counsel asked whether appellant told Lee that John Wilson had left him in the apartment when he was awoken, the prosecutor objected. After confirming that defense counsel was attempting to elicit appellant’s hearsay statement made at the time of his arrest, the trial court informed her that it needed to be done through a proffer. During the proffer, Lee testified that at the time appellant was found in Wilson’s apartment, appellant immediately and without hesitation stated that John had left him there.

Before ruling on the admissibility of Lee’s testimony regarding appellant’s statement, the trial court heard the proffered testimony of Deputy Robert Behl. Deputy Behl testified that after he asked appellant basic identification questions, he told him, “I’m here investigating a burglary, what are you doing here[?]” In response, appellant stated that he had permission to be there from the owner or lessee of the apartment. After the prosecutor argued that the statement was not a spontaneous one but a direct result of the deputy’s questioning, which appellant had time to think about before making, defense counsel countered that regardless of whether the statement was spontaneous, the jury needed “to hear the complete answer for completeness.” The trial court excluded the statement on the ground that it was hearsay.

Deputy Behl then testified that on the day in question, he responded to a possible burglary at Wilson’s apartment. Behl contacted Wilson by telephone, and Wilson informed him that no one should have been in the apartment. Inside the apartment, Behl found appellant asleep on the bed, woke him up, and gathered information such as his name and date of birth. Behl subsequently arrested and searched appellant; he found very small Ziplock bags, which contained a substance that he suspected was cocaine, and a small metal pipe in one of appellant’s pockets. At the jail, appellant was read his Miranda rights, which he seemed to understand, and subsequently agreed to speak with Behl. Appellant told Behl that he went to the apartment to smoke cocaine, that the metal pipe he had in his possession was used to smoke cocaine, and that he had known that Wilson was not at the residence on the day in question. At the jail, $229 in cash was found inside appellant’s shoe. Behl conducted a field test of the substance found on appellant, and it tested positive as being cocaine.

The jury ultimately found appellant guilty of burglary of a dwelling, possession of cocaine, and possession of drug paraphernalia for use but did not reach a verdict as to the petit theft count. Appellant was sentenced to 89.8 months’ imprisonment on the burglary and possession of cocaine counts, to run concurrently, and to time served on the possession of drug paraphernalia count. This appeal followed.

As a general rule, we will not reverse a trial court’s ruling on the admissibility of evidence absent an abuse of discretion. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006); Russ v. State, 832 So.2d 901, 908 (Fla. 1st DCA 2002). Generally, a defendant’s out-of-court self-serving exculpatory statements are inadmissible hearsay. Guerrero v. State, 532 So.2d 75, 76 (Fla. 3d DCA 1988); see also Barber v. State, 576 So.2d 825, 830 (Fla. 1st DCA 1991) (“When a defendant seeks to introduce his own prior self-serving statement for the truth of the matter stated, it is hearsay and it is not admissible.”). However, the rule of completeness, which is codified in section 90.108(1), Florida Statutes (2004), provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

While the language of the statute suggests that the rule only applies to writings or recorded statements, in Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989), we applied the rule as follows:

Because portions of the defendant’s conversation with the officer were admitted on direct examination, the rule of completeness generally allows admission of the balance of the conversation as well as other related conversations that in fairness are necessary for the jury to accurately perceive the whole context of what has transpired between the two. (citation omitted). Once the officer testified in the state’s case-in-chief about one portion of Eberhardt’s statements to him, the court erred in sustaining the state’s hearsay objection for the reason that his statements he was “high” or intoxicated were self serving, (citation omitted).

Subsequently, in Christopher v. State, 583 So.2d 642, 646 (Fla.1991), the supreme court cited the portion of Eber-hardt applying the rule of completeness to verbal communication with approval. See also Sweet v. State, 693 So.2d 644, 645 (Fla. 4th DCA 1997). The purpose of the rule is to “avoid the potential for creating misleading impressions by taking statements out of context.” Larzelere v. State, 676 So.2d 394, 401 (Fla.1996). The proper standard for determining the admissibility of testimony under the rule is “whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.” Id. at 402. This determination of fairness falls within the discretion of the trial judge. Id.

Here, the State is correct that appellant’s statement that John Wilson left him in the apartment or that he had the permission of the owner or lessee of the apartment to be there would generally constitute inadmissible hearsay. See Guerrero, 532 So.2d at 76; Barber, 576 So.2d at 830. However, the statement is one related to appellant’s subsequent statement that he went to the apartment to smoke cocaine that, in fairness, was necessary for the jury to accurately perceive the entire context of what transpired between appellant and Deputy Behl. See Johnson v. State, 653 So.2d 1074, 1075 (Fla. 3d DCA 1995); Eberhardt, 550 So.2d at 105. While such a fairness determination is usually left within the discretion of the trial court, see Larzelere, 676 So.2d at 402, the trial court in this case ruled that the statement at issue was inadmissible solely on the ground that it was hearsay without making any fairness determination on the record. The content of the excluded statement would have served to amplify or explain the subsequent statement because, even if appellant entered the apartment with the intent to smoke cocaine inside, if his related statement that he did so with John Wilson’s permission was allowed to be elicited on cross-examination, such evidence may have convinced the jury that appellant was not guilty of burglary. See § 810.02(1)(b)1., Fla. Stat. (2004) (defining burglary as “[ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter ”) (emphasis added). Standing alone, the later statements left the jury with the mistaken impression that appellant did not assert that he had permission to be in the apartment when he was initially confronted by Deputy Behl and, thus, the exclusion of the statement gave the jury an incomplete picture of the events. See Johnson, 653 So.2d at 1075. Based on the foregoing, we conclude that the trial court abused its discretion in granting the State’s motion in limine.

Furthermore, although Wilson testified that he did not give appellant permission to be in his apartment on the day in question, the credibility of witnesses and the weight of the evidence are questions for the jury. See State v. Nichols, 892 So.2d 1221, 1228 (Fla. 1st DCA 2005). Thus, if defense counsel had been allowed to elicit the statement at issue through cross-examination of Deputy Behl and Arthur Lee, the jury might have believed appellant’s exculpatory statement over John Wilson’s testimony. As such and given that the statement, if properly admitted, would have been the only evidence to support appellant’s defense that he had permission to enter the apartment, we are unable to conclude that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (stating that the harmless error test places the burden on the State to prove beyond a reasonable doubt that the error did not contribute to the verdict).

Accordingly, we REVERSE appellant’s burglary conviction and REMAND the cause to the trial court for a new trial on the burglary charge. We AFFIRM in all other respects.

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


text:
    Thaddeus L. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1000.
    District Court of Appeal of Florida, First District.
    July 20, 2006.
    Thaddeus L. Jackson, pro se, Petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order of November 3, 2005, denying petitioner’s motion for postconviction relief in Gadsden County Circuit Court case number 02-264CFA, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


text:
    S.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5458.
    District Court of Appeal of Florida, First District.
    July 20, 2006.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, S.H., a child, appeals the trial court’s order committing her to a moderate-risk juvenile facility following her un-counseled guilty plea to the first-degree misdemeanor of resisting an officer without violence. The state properly concedes that appellant’s waiver of counsel at the plea proceeding was not done knowingly and intelligently.

Accordingly, we reverse the order of disposition committing appellant to a moderate-risk juvenile facility, and remand the case with directions to the trial court to permit appellant to withdraw her plea and thereafter for it to conduct proceedings in accordance with the requirements of Florida Rule of Juvenile Procedure 8.165 and State v. T.G., 800 So.2d 204 (Fla.2001).

REVERSED and REMANDED.

ERVIN, BENTON, and BROWNING, JJ., concur.


text:
    Steven D. ALLMOND, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1079.
    District Court of Appeal of Florida, First District.
    July 20, 2006.
    Steven D. Allmond, pro se, Appellant.
    Charlie Crist, Attorney General, and Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this timely appeal from the trial court’s summary denial of appellant’s Rule 3.800(a) postconviction motion, appellant raises three issues, two of which merit no discussion. Appellant’s third claim, however, which is that his written sentence is illegal because the trial court failed to orally pronounce the imposition of a minimum mandatory 15 years’ imprisonment for each count pursuant to section 775.084(4)(b)(1), Florida Statutes (1995), is facially sufficient. Accordingly, we remand this matter to the trial court for either the attachment of portions of the record conclusively refuting appellant’s assertion or for the removal of the minimum mandatory portions of his sentence. See State v. Hudson, 698 So.2d 831 (Fla.1997); Hill v. State, 652 So.2d 904 (Fla. 4th DCA 1995).

ALLEN, DAVIS, and POLSTON, JJ., concur.


text:
    BALLARD-CANNON DEVELOPMENT CORPORATION, a Florida corporation, A. Bowen Ballard, and Shane L. Cannon, Appellants, v. SANDMAN PROPERTIES AND DEVELOPMENT, LLC, a Florida Limited Liability corporation, and Mercer Williams, Jr., Appellees.
    No. 1D05-4083.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    William E. Bond, Jr. and Scott A. Remington of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellants.
    J. Nixon Daniel, III, Charles Wiggins, and Terrie L. Didier of Beggs & Lane, Pensacola, for Appellees.
   PER CURIAM.

Ballard-Cannon Development Corporation (“B-C”) appeals a directed verdict that found its purported oral contract with Appellees unenforceable under Florida’s statute of frauds. See § 725.01, Fla. Stat. (2005). Appellees argue B-C waived its breach of contract argument when it acquiesced to the dismissal of that count in order to proceed, by way of its election of remedies, to a judgment on a separate count in its complaint. As the trial court correctly found the oral agreement unenforceable under the statute of frauds, we need not decide the waiver issue.

Directing a verdict, the trial court found the oral contract called for a transfer of an interest in land and could not be performed within one year. See id. Contrary to the court’s ruling, an interest in land would not have been transferred between the parties under the contract. See Russell v. Thielen, 82 So.2d 143, 146 (Fla. 1955) (“ ‘A contract between two persons to go into the business of buying and selling real estate as partners or as joint adventurers, sharing profits and losses thereof, is not within [Section 725.01, Florida Statutes] unless there is a provision for transfer of specific land from one party to the other.’ ” (quoting 2 Corbin on Contracts § 418)); see also McCloud v. Davison, 719 So.2d 995, 997 (Fla. 5th DCA 1998) (“An oral agreement between two or more persons to go into the business of buying and selling real estate as partners or as joint venturers and sharing profits and losses from it, is not within the purview of the Statute of Frauds.... ”); Blynn v. Hirsch, 124 So.2d 314, 315 (Fla. 3d DCA 1960) (“A distinction is generally recognized between an oral contract which by its terms provides for transfer of specific land from one party to the other, and one which has as its subject matter an agreement between the contracting parties to procure an estate from a person or persons not parties to the contract. The first is rendered unenforceable by the statute; the second is not.”). We affirm, however, on the finding that the contract could not be performed within a year.

Viewing the evidence in a light most favorable to the non-moving party, B-C, all parties intended to be involved with a real estate development project through its completion. See Collier v. Brooks, 632 So.2d 149, 154 (Fla. 1st DCA 1994) (“ ‘[W]hen no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended that it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year.’” (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (Fla. 1937))). B-C’s own witnesses testified that it intended to be involved with the development of the project and that the project would take well over a year to complete.

Finally, as the evidence presented at trial was undisputed concerning B-C’s intentions, the trial judge properly ruled on the issue of intent as a matter of law. See Khawly v. Reboul, 488 So.2d 856, 858 (Fla. 3d DCA 1986) (affirming directed verdict on a statute of frauds question because record “convinces [the court] that the parties intended to establish an ongoing concern, to extend well beyond a year”); see also Doran Jason Co. v. Lou, 868 F.2d 1547, 1550 (11th Cir.1989) (finding trial court correctly decided the issue of intent as a matter of law).

AFFIRMED.

KAHN, C.J., and ERVIN and VAN NORTWICK, JJ., concur.


text:
    Harold Ray BOONE, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-5316.
    District Court of Appeal of Florida, First District.
    July 24, 2006.

      Susan W. Fox, of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

An amended information charged Harold Ray Boone (Appellant) with two counts of lewd and lascivious conduct on a child under age 16; one count of lewd and lascivious exhibition in the presence of a child under age 16; eight counts of capital sexual battery on a child under age 12; one count of lewd and lascivious molestation of a child under age 12; one count of employing, authorizing, or inducing sexual performance of a child under age 18, knowing the character or content thereof; and one count of possession of child pornography in photographs and/or motion pictures. A jury found Appellant guilty as charged in 13 of the 14 counts. On the charge of lewd and lascivious exhibition in the presence of a child under age 16, the jury found Appellant guilty of the lesser-included offenses of attempted lewd and lascivious exhibition in the presence of a child under age 16. The trial court adjudicated Appellant guilty and sentenced him to various terms of incarceration, the most serious being life without possibility of parole. Finding that Appellant meets the requirements of a “sexual predator” under sections 775.21, 943.0435, and 944.605-.607, Florida Statutes (2004), the court (over defense counsel’s objection) ordered me-droxyprogesterone acetate (MPA) treatment, informally known as “chemical castration,” to occur at some undetermined time pursuant to section 794.0235, Florida Statutes (2004). Appellant appeals his convictions and the order to undergo MPA treatment.

Although errors occurred during the guilt phase of Appellant’s trial — among them, contrary to the State’s position on appeal, a clear violation of “the Golden Rule” — there is no reasonable possibility that these cumulative errors contributed to the conviction, ie., the errors are harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

As to the sentencing phase of the trial, the State filed notice of intent to seek Appellant’s classification as a sexual predator. Section 794.0235(1), Florida Statutes (2004), authorizes the trial court to sentence a defendant to MPA treatment. Subsection (2)(a) of this statute states that a court order sentencing a defendant to MPA treatment “shall be contingent upon a determination by a court appointed medical expert, that the defendant is an appropriate candidate for treatment,” and “[s]ueh determination' is to be made not later than 60 days from the imposition of sentence.” A court order imposing MPA treatment “shall specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.” Pursuant to statutory subsection (2)(b), where a defendant is sentenced to a period of incarceration, the administration of MPA treatment “shall commence not later than one week prior to the defendant’s release from prison or other institution.” The State concedes the trial court failed to follow the statutory procedures before ordering MPA treatment. Because the trial court failed to comply with the mandatory statutory procedures before ordering MPA treatment, we reverse and strike that portion of Appellant’s sentence ordering MPA treatment. See Jackson v. State, 907 So.2d 696, 697 (Fla. 4th DCA 2005) (holding that section 794.0235 directive that defendant receive medical examination, within 60 days of imposition of sentence for sexual offense, to determine suitability for chemical castration, as prerequisite to imposition of sentence of chemical castration, is mandatory rather than discretionary); Houston v. State, 852 So.2d 425, 428 (Fla. 5th DCA 2003) (reversing portion of sentence requiring MPA treatment, where trial court failed to comply with mandatory provisions of section 794.0235 relating to appointment of medical expert and specification of duration of treatment).

Appellant’s convictions are AFFIRMED, his sentences to varying periods of incarceration are AFFIRMED, but that portion of the sentence imposing MPA treatment is REVERSED and STRICKEN.

ERVIN, BENTON and BROWNING, JJ., concur.


text:
    Lloyd WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4009.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Lloyd Williams appeals his convictions for possession of cocaine, resisting arrest without violence, possession of drug paraphernalia, and giving a false name, arguing that the trial court erred in denying his motion to suppress. Because appellant’s equal protection argument was not raised below, it was not preserved for appeal. See McCellan v. State, 768 So.2d 1098 (Fla. 1st DCA 1999). We have examined the facts adduced at the suppression hearing, and we find that fundamental error did not occur.

AFFIRMED.

BARFIELD, VAN NORTWICK, AND LEWIS, JJ., concur.


text:
    Barney E. TULLY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3007.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Barney E. Tully, Jr., Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

AFFIRMED.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


author: BROWNING, J.

text:
    Chester CAMPBELL, Appellant, v. ARAMARK & SPECIALITY RISK SERVICES, Appellees.
    No. 1D05-3672.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Barbara B. Wagner, of Wagenheim & Wagner, P.A., Ft. Lauderdale, and Michael Celeste, West Palm Beach, for Appellant.
    Cheryl Wilke, of Hinshaw & Culbertson, Ft. Lauderdale, for Appellees, and Jack A. Weiss, of Fowler White Boggs Banker, P.A., St. Petersburg, for Amicus Curiae, Florida Defense Lawyers Association.
   BROWNING, J.

Chester Campbell, the claimant in this workers’ compensation case, appeals an attorney’s fee order of the judge of compensation claims (JCC) directing the employer/carrier (E/C) to pay to Campbell’s attorney a fee in the amount of $1,111.13 for securing temporary partial disability benefits with a total value of $5,740.89. Campbell challenges the JCC’s determination that section 440.34, Florida Statutes, as amended in 2003, precludes the JCC from approving an attorney’s fee greater than the statutorily enumerated percentage based on the value of the benefits secured on the claimant’s behalf. We have de novo review of this issue of statutory interpretation. See McBride v. Pratt & Whitney, 909 So.2d 386, 387 (Fla. 1st DCA 2005).

Campbell contends that although (in the 2003 amendments) the Florida Legislature deleted the factors set out in Lee Eng’g & Constr. Co. v. Fellows, 209 So.2d 454, 458-59 (Fla.1968), which were codified in the attorney’s fee statute, the JCC still has the discretion to award a reasonable attorney’s fee greater than what the statutory percentage fee formula establishes. This interpretation of the post-amendment attorney’s fee statute was expressly rejected in Wood v. Fla. Rock Indus., 929 So.2d 542 (Fla. 1st DCA 2006), mot. for certif. granted, 929 So.2d 542 (Fla. 1st DCA 2006), in which the following question of great public importance was certified:

DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY’S FEE TO BE AWARDED A CLAIMANT?

929 So.2d at 545; see also Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006). Accordingly, even without the benefit of Wood and Lundy, the JCC correctly construed the section 440.34 by following the strict statutory percentage formula.

Campbell argues that the JCC’s interpretation of the attorney’s fee statute, as amended in 2003, renders the statute unconstitutional: specifically, in violation of federal and/or Florida constitutional guarantees of equal protection, due process, separation of powers, and access to courts. These specific arguments were addressed and rejected in Lundy. See 932 So.2d at 509. Pursuant to Wood and Lundy, we AFFIRM the award of attorney’s fees according to the statutory percentage formula and CERTIFY the same question of great public importance.

ERVIN and BENTON, JJ., concur.


author: PER CURIAM. ERVIN, J.,

text:
    Rubin ROTSTEIN, Appellant, v. PUBLIX SUPERMARKETS, INC., and Specialty Risk Services, Appellees.
    No. 1D05-0415.
    District Court of Appeal of Florida, First District.
    July 24, 2006.

      Kelly A. Cambron-Fretwell, Port St. Lucie, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    Danni Lynn Germano, Kevin E. Leisure, and Thomas A. Hedler of Rigell, Ring & Ardman, P.A., North Fort Myers, for Ap-pellees.
   PER CURIAM.

Claimant appeals the Judge of Compensation Claims’ (JCC) order, which held the Employer/Carrier (E/C) correctly adjusted Claimant’s average weekly wage (AWW). The E/C adjusted Claimant’s AWW by valuing the employer-provided group health insurance as of January 29, 1987, the date of accident, rather than June 29, 2004, the date Claimant’s position as an employee terminated and provision of health insurance ceased.

It is well-established that a claimant’s AWW is calculated as of the date of the accident, not the date a claimant’s employment terminated as a result of the accident. See e.g., Flowers v. Acousti Eng’g Co. of Fla., 888 So.2d 785 (Fla. 1st DCA 2004); James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA 2003). Because the JCC’s ruling is consistent with the requirements of section 440.14(1), Florida Statutes (1987), the order is AFFIRMED.

PADOVANO and HAWKES, JJ., concur; ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

I respectfully dissent. In order to explain my position adequately, I set out additional facts to those given in the majority opinion. As reflected in the parties’ agreement, following the occurrence of claimant’s compensable back injury in 1987, the employer administratively accepted claimant as permanently, totally disabled (PTD) in May 1993. Claimant technically remained an employee, however, and until his separation from employment in 2004, the E/C continued to pay all or part of his group health-insurance premium, when his insurance was terminated. After his separation from employment, Publix adjusted the average weekly wage (AWW) by including in it the value of the premium as of the time of the injury.

In denying claimant’s petition for benefits seeking an adjustment to the AWW by including in it the increased value of the insurance premium as of the time of termination, the JCC concluded that the valuation date was controlled by section 440.14(1), Florida Statutes (1987), which provided that the AWW shall be based on wages in existence “at the time of the injury.” And, because it appeared that claimant had worked with the employer for a period of thirteen weeks prior to the date of the accident, no other date could be applied. In so concluding, the JCC overlooked pertinent statutory provisions in both section 440.14 and other provisions in chapter 440 applicable when claimant was injured and afterward. In my judgment, an in pari materia construction of all related statutes is essential in order to reach an appropriate determination of the legislative intent regarding the date of valuation of a fringe benefit.

Section 440.14(1), governing determination of pay, provides in part: “Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation-” (Emphasis added.) The JCC, as stated, used the 13-week period preceding the injury, as provided in subsection (l)(a) for computing AWW. The reason for the exclusion of the health-insurance premium was that section 440.14(3) then provided: “If, during the period of disability, the employer continues to provide consideration, ... the value of such consideration shall be deducted when calculating the average weekly wage of the employee so long as these benefits continue to be provided.”

Claimant argues that because the value of the employer’s contribution to claimant’s health insurance cannot be included in the wage calculation until the time the employment and the health-insurance benefits were discontinued, its value should be calculated as of the date the contribution ended. The E/C responds by relying on case law holding that the AWW should be determined as of the date of injury, not the date when claimant’s employment terminated. See, e.g., Flowers v. Acousti Eng’g Co. of Fla., 888 So.2d 735 (Fla. 1st DCA 2004); James v. Armstrong World Indus., Inc., 864 So.2d 1132 (Fla. 1st DCA 2003); Karnes v. City of Boca Raton, 858 So.2d 1264 (Fla. 1st DCA 2003). In each of the cited cases, this court directed the claimant’s AWW to be ascertained based on the wages earned the 13 weeks preceding injury, rather than on wages earned when the respective claimants were determined to be PTD and their employment ended. The claimant in each case continued to work for the same employer for a substantial period of time from the date of the injury until becoming PTD. As a result, each employee’s wages were considerably higher at the end of employment than at the date of the injury.

In my judgment, the employer’s reliance on the above case law is not persuasive. Although, as in the present case, a lengthy span in time transpired from the date of the accident until each of the claimants’ employment ended, none of the cases involved, as here, the question of when the value of a fringe benefit should be included in an AWW. Those cases appear to be influenced by the supreme court’s decision in Wal-Mart Stores v. Campbell, 714 So.2d 436, 437 (Fla.1998), in which the court concluded that the JCC should apply section 440.14(1)(a) even when the claimant has worked in concurrent employment less than 13 weeks before the injury.

The concern expressed in Wal-Mart as to the inconsistent application of a worker’s AWW if the statutory formula were not followed has no application to a case such as this in which an ambiguously worded statute in existence at the time of the claimant’s injury made no provision for the inclusion of a fringe benefit in a worker’s AWW, and in fact permitted the employer to deduct the value of the benefit. Moreover, the statute was altogether silent as to the time when the AWW should be adjusted by adding the fringe benefit, despite the fact that the definition of wages included employer benefits, such as health insurance. § 440.02(21), Fla. Stat. (1987).

Recognizing that section 440.14 did not address the manner in which a formerly excluded fringe benefit should be included in the AWW calculation, the legislature amended section 440.14 in 1989, by adding subsection (4), directing the employer, upon the worker’s termination from employment, or the termination of the previously provided benefit, to file a corrected wage statement including a fringe benefit, previously deducted from the worker’s AWW during his or her employment, in the AWW. The following year, thé legislature amended the definition of wages by adding the provision stating that “if employer contributions for housing or health insurance are continued after the time of the injury, the contributions are not ‘wages’ for the purpose of calculating an employee’s average weekly wage.” § 440.02(24), Fla. Stat. (Supp.1990). These changes, in my opinion, reasonably reflect the legislature’s acknowledgment that the value of the benefit would have increased from the time of the worker’s injury until the time of his or her separation from employment.

Furthermore, I conclude that the changes clarify the legislative intent concerning the time when the valuation of a fringe benefit should be determined, and, as such, they should properly be considered remedial statutes, e.g., statutes relating to remedies or modes of procedure that do not create or take away vested rights, but only operate in confirmation of rights already existing. Because of their effect, they do not fall within the general rule proscribing the retrospective operation of statutes. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995); Rustic Lodge v. Escobar, 729 So.2d 1014 (Fla. 1st DCA 1999); City of N. Bay Village v. City of Miami Beach, 365 So.2d 389 (Fla. 3d DCA 1978).

Upon consideration of all of the statutes determining pay and defining wages, enacted before and after claimant’s industrial injury, I am of the opinion they were designed to express the legislative purpose that a fringe benefit provided to an employee while he or she was receiving indemnity benefits and continued to be employed by the employer becomes a benefit for inclusion in the AWW at the time the employer’s contribution ends; therefore it is the value of the benefit upon the occurrence of such date that controls the calculation of the worker’s AWW.

      . See discussion of Wal-Mart in James, 864 So.2d at 1134-35.

      . Indeed, this view is bolstered by my review of section 440.15(1)(e)1, Florida Statutes (1993), the statute in effect when claimant was accepted as PTD, which displays the legislative intent that the calculation of a worker's weekly wages should be increased during the time he or she remains PTD by providing for "additional weekly compensation benefits equal to 5 percent of his weekly compensation rate, as established pursuant to the law in effect on the date of his injury, multiplied by the number of calendar years since the date of injury.”


text:
    Angelena McPHERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1674.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s June 21, 2006, Order, the instant appeal is dismissed for lack of jurisdiction.

DISMISSED.

ALLEN, DAVIS and THOMAS, JJ„ concur.


text:
    James Ira DOUGLAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3164.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Bill Salmon, Gainesville, for Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Riggs v. State, 847 So.2d 1037 (Fla. 1st DCA2003).

DAVIS, ALLEN, and THOMAS, JJ„ concur.


text:
    SCHOOL BOARD OF OSCEOLA COUNTY and G.F., On Behalf of Minor Child G.F., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D05-4340.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Usher L. Brown, Joseph E. Blitch, and Erin J. O’Leary of Brown, Garganese, Weiss & D’Agresta, P.A., Orlando, for Appellant.
    Charlie Crist, Attorney General, and Lee Ann Gustafson, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellants challenge a final order by which an administrative law judge dismissed their section 120.56(4), Florida Statutes, amended petition. Because the amended petition was properly dismissed on its merits, we affirm the order under review. Our disposition renders moot the issues relating to standing and evidentiary rulings.

ALLEN, DAVIS and THOMAS, JJ., concur.


text:
    B.J., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1069.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, a juvenile, appeals an order transferring her cases to adult criminal court pursuant to section 985.226, Florida Statutes (2006). Concluding that the order is not subject to review by appeal, we dismiss this proceeding for lack of jurisdiction. See R.J.B. v. State, 408 So.2d 1048 (Fla.1982). We also decline appellant’s invitation to undertake certiorari review of the order based on our conclusion that any error the trial court may have committed can be adequately remedied on appeal. See In the Interest of D.W., 616 So.2d 620 (Fla. 4th DCA 1993).

KAHN, C.J., WEBSTER, and HAWKES, JJ., Concur.


text:
    PRESIDION SOLUTIONS and Unisource Administrators, Inc., Appellants, v. Paul BEAVER, Appellee.
    No. 1D05-2920.
    District Court of Appeal of Florida, First District.
    July 25, 2006.
    Keith Pallo, of Pallo, Marks & Hernandez, P.A., Palm Beach Gardens, and Majo-rie Gadarian Graham, of Marjorie Gadari-an Graham, P.A., Palm Beach Gardens, for Appellants.
    Kelly Cambron-Fretwell, Port St. Lucie, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

AFFIRMED. Checkers Rest. & Specialty Risk Servs., Inc. v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006).

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


author: WELLS, Judge.

text:
    John Archie COLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2289.
    District Court of Appeal of Florida, Third District.
    July 26, 2006.
    John Archie Cole, in proper person.
    Charles J. Crist, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and WELLS, JJ.
   WELLS, Judge.

We affirm the trial court’s order denying John Cole’s motion for transcripts. Cole entered a guilty plea and was sentenced in January 1996. Contrary to Cole’s representation in his brief, no Rule 3.850 post-conviction motion, or any other paper, has been filed in this matter since he was sentenced. As we confirmed in Baldwin v. State, 743 So.2d 78, 78 (Fla. 3d DCA 1999):

“Transcripts are not necessary for the preparation of a legally sufficient [Florida Rule of Criminal Procedure] 3.850 motion.... Appellant must first file a 3.850 motion setting forth his alleged grounds for relief in order to secure a copy of portions of his trial record. In preparing his motion, appellant must rely on his best recollection of the court proceedings. Only then may he secure those portions of the record relevant to his motion.” McFadden v. State, 711 So.2d 1350 (Fla. 1st DCA 1998) (citations omitted); accord Cassoday v. State, 237 So.2d 146, 147 (Fla.1970); Dorch v. State, 483 So.2d 851, 852 (Fla. 1st DCA 1986); Carr v. State, 495 So.2d 282 (Fla. 2d DCA 1986).

While we affirm denial of Cole’s current transcript request, he may either attempt to obtain the documents he seeks from his former counsel or reapply to the trial court after a motion for post-conviction relief has been filed.

Affirmed.


text:
    Johnny BLIDGE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1067.
    District Court of Appeal of Florida, Third District.
    July 26, 2006.
    Johnny Blidge, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). We reverse.

The order states that the defendant’s motion is successive in that it raises issues which could or should have been raised in prior post-conviction relief motions. We note that there is no proscription against filing successive rule 3.800(a) motions. As discussed in Pleasure v. State, 931 So.2d 1000 (Fla. 3d DCA 2006):

“[I]n the case of a second or subsequent Rule 3.800(a) motion, the question is whether the subsequent motion is barred by the doctrine of collateral es-toppel. Collateral estoppel applies when ‘the identical issue has been litigated between the same parties or their privies.’ For the bar of collateral estoppel to apply, the prior decision must have been on the merits.
Thus on remand, the questions for the trial court are whether the defendant’s current Rule 3.800(a) motion raises the identical issue as the previous motion, and whether the previous motion was decided on the merits. If that turns out to be so, then the trial court’s order denying the current Rule 3.800(a) motion should include as attachments the prior order denying relief plus the defendant’s prior Rule 3.800(a) motion. Only by including those attachments will the record conclusively show that the defendant’s current motion is barred by collateral estoppel.
Alternatively, if a review of the prior motion, order, and related documents shows that the current claim is not identical to the claim previously decided, then the trial court will need to proceed to a consideration of the merits of the current Rule 3.800(a) motion.” [citations and footnotes omitted].

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Jorge Miguel RODRIGUEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-4.
    District Court of Appeal of Florida, Third District.
    July 26, 2006.
    Santiago Lavandera, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for respondent.

      Before SUAREZ and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Defendant seeks a writ of prohibition claiming the State failed to bring him to a speedy trial pursuant to Florida Rule of Criminal Procedure 3.191, and that the trial court erred in denying his motion for discharge. We deny the defendant’s petition for writ of prohibition.

The defendant was arrested on February 11, 2003. On March 13, 2003, the State charged him by information with trafficking in amphetamines. On that same date, his counsel made a written demand for discovery. The State failed to provide the discovery and the defendant made a second request for discovery on April 18, 2003. At the May 23, 2003, calendar sounding, the State acknowledged that it had not yet provided defense counsel with discovery, and handed discovery to defense counsel in open court. The State said it was not ready to proceed to trial. The court ordered a joint continuance and set the case for report for July 25, 2003. The natural speedy trial period expired on August 5, 2003. Defendant filed a notice of expiration of speedy trial time on September 4, 2003, and the trial court struck the notice due to the May 23, 2003, joint continuance. Defendant argues that he did not waive his right to a speedy trial because the May 23, 2003, joint continuance should have been charged only against the State.

We deny the petition for writ of prohibition. The defendant did not file a motion to compel discovery prior to May 23, 2003, and failed to inform the trial judge at the May 23, 2003, hearing that he was ready to proceed to trial at that time. The defendant filed a motion to compel discovery several months after the sounding, indicating that the defendant was not ready for trial in May. If the defendant both needed the discovery in question and wanted to keep the speedy trial date, it was imperative for defense counsel to have sought immediate relief from the court once discovery was overdue. Therefore, the court was correct in charging the continuance as a joint continuance and in later denying the defendant’s motion for discharge. See State v. Guzman, 697 So.2d 1263 (Fla. 3d DCA 1997) (Cope, J., specially concurring).

Petition for writ of prohibition denied.


author: KLEIN, J.

text:
    Joseph B. ELKIND, Appellant, v. Kenneth KNOX and Fisher & Phillips, L.L.P., Appellees.
    No. 4D06-25.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Edward T. Dinna of the Law Office of Edward T. Dinna, L.L.C., Fort Lauder-dale, for appellant.
    John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees.
   On Motion To Dismiss Appeal

KLEIN, J.

We previously dismissed this appeal on appellees’ motion, which asserted that the order being appealed was non-final, because a cross-claim remained pending in the trial court. When the appellant failed to respond to the motion, we assumed that he agreed with the appellees’ argument on jurisdiction. Following our dismissal, however, appellant moved for rehearing and has persuaded us that we should not have dismissed the appeal.

Appellant/plaintiff, in his complaint, alleged legal malpractice against appellees Knox and Fisher & Phillips. Knox and Fisher & Phillips filed a cross-claim for common law indemnity against another party based on the claim filed against them by plaintiff. Ultimately the trial court dismissed plaintiffs third amended complaint against Fisher & Phillips with prejudice for failure to state a cause of action, and it is that order which is being appealed. The argument that the order was not final is based on the fact that the cross-claim of Knox and Fisher & Phillips against another party remains pending. That cross-claim, however, does not involve appellant/plaintiff. Under these facts we are unable to agree with appellees that this order is not final under the reasoning of S.L.T. Warehouse v. Webb, 304 So.2d 97 (Fla.1974) (order dismissing complaint with prejudice is not final if compulsory counterclaim involving same parties remains pending).

The only case cited which involves a cross-claim is Morris v. Painewebber, Inc., 852 So.2d 352 (Fla. 1st DCA 2003); however, the opinion dismissing that appeal does not explain who the parties were to the claim still pending in the trial court. If, in Morris, the pending cross-claim was between the appellant and appellee, the appeal would have been premature under the reasoning of S.L.T. Warehouse. In the present case, the cross-claim which remained pending did not involve appellant, and the order dismissing all of appellant’s claims against the appellees is accordingly final. We therefore reinstate the appeal.

GUNTHER and TAYLOR, JJ., concur.