text:
    Craig BUNCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-167.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Craig Bunch, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant appeals an order denying his motion for postconviction relief as facially insufficient. As the state concedes, in such circumstances, leave should be given to the prisoner to refile a legally suffi-dent motion. See, e.g., Swatman v. State, 814 So.2d 1109 (Fla. 2d DCA 2002); Jones v. State, 708 So.2d 1045 (Fla. 4th DCA 1998). We therefore affirm but without prejudice to the appellant refiling a legally sufficient motion within sixty days of the mandate.

STONE, WARNER and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Earl CONEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1540.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Earl Coney, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Although we have considered the merits of this appeal, which are nonexistent, we remind Mr. Coney of the admonition we gave in the June 7, 2007, order in Coney v. McDonough, case No. 4D07-813, that this court may preclude him from filing any further pro se pleadings, petitions, appeals, motions, or any other papers, because of his abuse of the appellate system.

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


text:
    Ulises BALLATE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3508.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this Anders appeal, we find no issues of arguable merit in the record. We affirm the order revoking appellant’s probation and imposing sentence, but remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007); Rey v. State, 904 So.2d 566 (Fla. 4th DCA 2005), Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004), Anderson v. State, 879 So.2d 688 (Fla. 4th DCA 2004), Campbell v. State, 776 So.2d 1036 (Fla. 4th DCA 2001).

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


text:
    Cornell GUTHRIE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-2140.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Cornell Guthrie, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We grant Cornell Guthrie’s petition for writ of mandamus to compel the trial court to rule on Guthrie’s motion for post-conviction relief filed on or about January 11, 2005.

As we are hopeful that the lower court will comply forthwith with the issuance of the requested order, we withhold issuance of the formal writ for thirty (30) days.


text:
    James WILLIAMS a/k/a Keith Robinson, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3212.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    James Williams a/k/a Keith Robinson, in proper person.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GREEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

Defendant appeals from an order dated November 28, 2006 denying a rule 3.800 motion dated December 6, 2005. Finding no merit in any of defendant’s arguments, we affirm the November 28, 2006 order.


text:
    Jerome FRIEDMAN, Appellant, v. CELEBRITY CRUISES, INC., Appellee.
    No. 3D06-637.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Stein Bogot and Robert J. Stein, Chicago; Mrejen Blinderman and Craig H. Blinderman, Fort Lauderdale; Harke Clasby and Lance Harke, Miami, for appellant.
    Holland Knight and Sanford L. Bohrer and Scott D. Ponce, Miami, for appellee.
    Before GREEN, WELLS, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Hallman v. Carnival Cruise Lines, Inc., 459 So.2d 378 (Fla. 3d DCA 1984).


text:
    Cristina I. REYES, Appellant, v. BISCAYNE ASSOCIATES, LLC and Florida Unemployment Appeals Commission, Appellees.
    No. 3D07-418.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Cristina I. Reyes, in proper person.
    John D. Maher, Deputy General Counsel, Tallahassee; Frederick Charles Sake, Miami Beach, for appellees.
    Before GREEN, WELLS, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Givens v. Fla. Unemployment Appeals Comm’n, 888 So.2d 169 (Fla. 3d DCA 2004); Hines v. Dep’t of Labor & Employment Sec., 455 So.2d 1104 (Fla. 3d DCA 1984).


author: WELLS, Judge.

text:
    Fernando PORTE a/k/a Jose Torren, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1298.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.
    Fernando Porte, a/k/a Jose Torren, in proper person.

      Bill McCollum, Attorney General, for appellee.
    Before GREEN, WELLS, and CORTINAS, JJ.
   WELLS, Judge.

The defendant appeals an order summarily denying his motion under Florida Rule of Criminal Procedure 3.800 for credit for jail time served prior to sentencing. We reverse.

The defendant was arrested on February 12, 1991 and sentenced on November 21, 1991. He received 94 days in credit for time served prior to sentencing, but it is unclear whether the defendant was entitled to receive a total of 283 days in credit for time served as he claims, because there are no record attachments to the order on appeal. Since the record before us fails to conclusively demonstrate that the defendant is not entitled to the jail time credit he seeks, we reverse and remand. See Fla. R.App. P. 9.141(b)(2)(D); Zelaya v. State, 925 So.2d 428 (Fla. 3d DCA 2006); Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005); Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999). On remand, the trial court should either attach those portions of the record that conclusively refute the defendant’s claim or award him the appropriate credit for time served.

Reversed.


text:
    Scott C. DALBEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1189.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Carey Haughwout, Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

The order denying Appellant’s Florida Rule of Criminal Procedure 3.800(a) motion is reversed and remanded to the trial court with instructions to strike the motion as unauthorized. Ladson v. State, 907 So.2d 1288 (Fla. 2d DCA 2005). In addition, because Appellant is represented by counsel, his attempt to file a pro se appeal in this case was improper. See Kerney v. State, 945 So.2d 657, 658-59 (Fla. 2d DCA 2007).

FARMER, KLEIN and MAY, JJ., concur.


text:
    Jimmie David SAPP, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1813.
    District Court of Appeal of Florida, Fifth District.
    July 17, 2007.
    Larry C. Hoffman, Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Donovan v. State, 821 So.2d 1099, 1101 (Fla. 5th DCA 2002).

PALMER, CJ., THOMPSON, and LAWSON, JJ., concur.


text:
    Norman K. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5682.
    District Court of Appeal of Florida, First District.
    July 18, 2007.
    Rehearing Denied Aug. 23, 2007.
    Norman K. Brown, pro se, Appellant.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s order summarily denying his motion for postcon-viction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm without discussion Appellant’s claim that counsel was ineffective for interfering with his right to testify during trial and his claim that counsel was ineffective for failing to investigate and call Ava Wilson as a witness. We reverse the trial court’s summary denial of Appellant’s claim that counsel was ineffective for failing to investigate and call four other witnesses.

Appellant has alleged a facially sufficient claim of ineffective assistance of counsel for failing to investigate and call as witnesses Arthea Cherry, Laura Clayton, Walter Reeves, and Officer Ferrara because he stated each witness’ proposed testimony, how the omission of this evidence prejudiced the outcome of his trial, and that these witness were willing and available to testify. See Nelson v. State, 875 So.2d 579, 583 (Fla.2004).

The trial court denied relief, finding that Appellant was not prejudiced by counsel’s failure to call these witnesses, explaining that each would have presented impeachment evidence, at best, and their proposed testimony conflicted with Appellant’s defense theory. The trial court either failed to attach any records showing how the witness’ proposed testimony would not affect the outcome of the trial or attached records which do not conclusively refute Appellant’s claim because they do not explain Appellant’s defense theory. When summarily denying relief regarding failure to call witnesses, a trial court should attach record portions explaining how a witness’ testimony would not have affected the outcome of the trial. We find that its failure to do so here constitutes reversible error. See Brooks v. State, 710 So.2d 595, 597 (Fla. 1st DCA 1998). Accordingly, we reverse in part the trial court’s summary denial of Appellant’s motion for postconviction relief and remand for the trial court to conduct an evidentiary hearing or to attach further records conclusively showing Appellant is entitled to no relief.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, DAVIS and THOMAS, JJ., concur.


text:
    James Leonard EDGEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1891.
    District Court of Appeal of Florida, First District.
    July 18, 2007.
    Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Reversed and remanded for further proceedings before a new judge. See Sears v. State, 889 So.2d 956, 960 (Fla. 5th DCA 2004) (“The trial judge in the present case crossed the line of neutrality and impartiality, and as a result, Mr. Sears did not receive a fair and impartial violation of probation hearing.”); Cagle v. State, 821 So.2d 443, 444 (Fla. 2d DCA 2002) (“[While a] trial court may conduct probation revocation proceedings in an informal manner and ... question witnesses, ... it may not assume the role of the prosecutor. Doing so deprives the defendant of the fair and impartial tribunal which is the cornerstone of due process. See Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Such conduct amounts to fundamental error that may be raised for the first time on appeal”) (other citation omitted). See also Padalla v. State, 895 So.2d 1251, 1252 n. 2 (Fla. 2d DCA 2005) (noting it is “customary ... that the matter be heard on remand before a different judge”); Sears, 889 So.2d at 957-59 (reversing revocation of probation and remanding for new hearing before different judge where trial judge “unnecessarily interjected himself into the adversarial process, and abandoned the cloak of neutrality” when the court, among other things, asked the defendant twenty-two questions, even though defendant was never sworn, and “[a]t the conclusion of this last series of questions, the trial court abruptly found [him] guilty of violating his probation, and sentenced him to prison”); Cagle, 821 So.2d at 444 (reversing “for a new revocation hearing before a different trial judge” where trial judge had, inter alia, posed “questions without swearing ... [the] witness”).

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    John T. KOULIANOS, Anne Koulianos, Thomas Leone, Jacqueline Leone, Donald Roberts and Julia Roberts, Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
    Nos. 4D06-3753 to 4D06-3755.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Daniel F. O’Shea of Reyes, O’Shea & Coloca, P.A., Miami, for appellants.
    Matthew J. Conigliaro and Jeffrey A. Cohen of Carlton Fields, P.A., Miami, and Jeffrey E. McFadden of Steptoe & Johnson, LLP, Washington, D.C., for appellee.
   PER CURIAM.

Affirmed. See Kish v. A.W. Chesterton Co., 930 So.2d 704 (Fla. 3d DCA 2006).

GUNTHER, FARMER and MAY, JJ., concur.


author: CORTIÑAS, Judge. RAMIREZ J,

text:
    McCLOSKEY CONSTRUCTION CORP., Appellant, v. TOCO HOMES, INC., Equitymax, Inc., Tony B. Brown and Lenise D. Brown, and Chase Manhattan Mortgage Corp., Appellees.
    No. 3D06-2396.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Deborah Marks, Miami, for appellant.

      Smoler Lerraan Bente Whitebook and Carlos D. Lerman, Hollywood, for appel-lees.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

The Plaintiff, McCloskey Construction Corp. (“McCloskey”), appeals the trial court’s order denying its motion for attorney’s fees under section 57.105, Florida Statutes (2006). We affirm.

We find that the trial court did not abuse its discretion in denying McCloskey’s motion for attorney’s fees under section 57.105. See Gallagher v. Dupont, 918 So.2d 342, 349 (Fla. 5th DCA 2005) (citations omitted)(reviewing a trial court’s order denying a motion for attorney’s fees for an abuse of discretion). Accordingly, we affirm the trial court’s order denying McCloskey’s motion for attorney’s fees under section 57.105.

Affirmed.

RAMIREZ J,

concurring.

We affirm the denial of attorney’s fees under section 57.105, Florida Statutes (2006), where plaintiff, McCloskey Construction Corp., filed a simple complaint against defendant Toco Homes, Inc. to foreclose on a final judgment in the amount of $7,654.60 that had been entered against Izóla Dennard. It alleged that the defendant had acquired record title to Dennard’s property after the judgment lien had been recorded. The defendant answered, denying that it owned the subject property or that it owed the money.

After plaintiff had filed its lis pendens, Toco Homes transferred the property to Tony B. Brown and Lenise D. Brown, necessitating the filing of an amended complaint to add them as defendants, as well as the mortgage company. The Browns alleged, as an affirmative defense, that the real estate constituted the homestead property of Izóla Dennard and the judgment lien could therefore not attach to the real property.

Shortly thereafter, plaintiff furnished the defendants with the 21-day notice required under section 57.105. The plaintiff explained that the judgment was for repair work done on the real estate in question, and thus it was immaterial whether it was the homestead property of Dennard because article X, section 4(a) of the Florida Constitution, made the property exempt from forced sale. This provided for an exception for obligations contracted for the improvement or repair on the realty. Because the defendants refused to abandon their affirmative defense that the property was exempt from forced sale as homestead property, plaintiff was forced to re-open Dennard’s estate to seek a declaratory judgment and also had to litigate the issue in the general jurisdiction division.

The trial court eventually granted summary judgment in favor of McCloskey, but only after it had incurred fees in excess of the original judgment. The trial judge, however, denied plaintiffs motion for attorney’s fees without explanation. We affirm because the trial court did not abuse its discretion. Thus, we have a plaintiff having to expend more money in fees to collect on its judgment and to litigate an affirmative defense where the clear language of the Florida Constitution made it distinctly frivolous.

In Huff v. State, 569 So.2d 1247, 1249 (Fla.1990), the Florida Supreme Court stated that the test for reviewing a judge’s discretionary decision was as follows:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.

Id. (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). Because my two colleagues on the panel, eminently reasonable jurists, have agreed to affirm, I must accept that no abuse of discretion has been shown. However, I believe that henceforth, no decision denying fees under section 57.105 can possibly be reversed. If the explicit language of the Constitution can be ignored by defendants with impunity, necessitating a minor claim to become a major piece of litigation, I can think of no case where an appellate court can ever provide meaningful review where the trial court has denied fees under this particular statute.


text:
    John Arthur FLEMING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D07-330.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Rehearing Denied July 18, 2007.
    John A. Fleming, Jr., Jasper, pro se.
    No appearance required for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We -withdraw our opinion of June 13, 2007, grant Appellant’s motion to file supplemental brief, and, upon consideration of same, re-issue our opinion of June 13, 2007.

Affirmed.

STONE, POLEN and GROSS, JJ., concur.


text:
    R.W., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-3221.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Catherine A. Riggins, for appellant.
    Karla Perkins, Assistant District Legal Counsel, Department of Children and Family Services, and Hillary Kambour, Guardian Ad Litem Program, for appellee.
    Before GERSTEN, C.J., and FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See D.M.U. v. Dep’t of Children & Family Servs., 917 So.2d 984, 988 (Fla. 3d DCA 2005).


text:
    Darrick NOBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1087.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Rehearing Denied Aug. 28, 2007.
    Nancy C. Wear, Coral Gables, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm all issues except the imposition of costs. Costs may be reimposed on remand if the procedural safeguards required by Reyes v. State, 655 So.2d 111, 114 (Fla. 2d DCA 1995) are met. We note, however, that the expense to be incurred for a new hearing may outweigh the costs sought by the state. Ortiz v. State, 884 So.2d 77 (Fla. 2d DCA 2004).

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Regine DAVIS, Appellant, v. TMG STAFFING SERVICES, INC. and CNA (Maitland), Appellees.
    No. 1D06-1445.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Karla G. Hart and Paul M. Anderson of Anderson & Associates, P.A., Tallahassee, for Appellant.
    Michael D. Quiggins of Eraclides, Johns, Hall, Gelman, Eikner <& Johannessen, L.L.P., for Appellees.
   PER CURIAM.

AFFIRMED. See A. Duda & Sons, Inc. v. Kelley, 900 So.2d 664, 667-68 (Fla. 1st DCA 2005) (requiring proof of major contributing cause and noting that “[t]he E/C in [Claims Mgmt., Inc. v.] Drewno [, 727 So.2d 395 (Fla. 1st DCA 1999), unlike the appellees here] conceded the psychiatric injury at issue was a ‘manifestation’ contested under section 440.09(1), Florida Statutes”).

BENTON, PADOVANO & THOMAS, JJ., concur.


author: HAWKES, J.

text:
    Thomas J. GIOVANINI, former husband, Appellant, v. Donna L. GIOVANINI, former wife, Appellee.
    No. 1D06-3274.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    David W. Palmer, II, Fort Walton Beach, for Appellant.
    Tony Simpson, Shalimar, for Appellee.
   ON MOTION FOR REHEARING

HAWKES, J.

We deny Appellant’s motion for rehearing. However, this court, sua sponte, withdraws its previous opinion, and substitutes this opinion in its place. See City of Cooper City/Fla. Mun. Ins. Trust/Fla. League of Cities v. Farthing, 905 So.2d 925, 926 (Fla. 1st DCA 2005) (withdrawing opinion and reconsidering its merits upon the court’s own motion); Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723 725 (Fla. 1st DCA 2007) (same).

This is Appellant s second appeal of this ease. The case stems from a 1988 final dissolution order wherein the trial court ordered Appellee to receive 43% of Appellant’s military retirement benefit as of the date of the parties’ divorce. However, Ap-pellee was required to wait until Appellant actually retired before having the dollar amount determined, and to begin receive those benefits. Appellant retired in 2001, and from that time forward he has litigated the amount of Appellee’s entitlement and the trial court’s subject matter jurisdiction to determine the amount. In this second appeal, it appeared to this court that all of the claims Appellant raised were either raised in the first appeal, or those not raised in the first appeal were wholly without legal merit. Consequently, this court issued an order to show cause as to why it should not, sua sponte, impose attorney’s fees against Appellant pursuant to section 57.105, Florida Statutes.

The show cause order listed ten separate claims raised by Appellant on appeal. As to each claim, this court ordered Appellant to show cause as to why fees should not be imposed on the claim pursuant to section 57.105, Florida Statutes, on the basis that the claim was either barred by res judicata, or otherwise without legal merit. Claims Appellant was ordered to address that were deemed without legal merit included his challenges to the trial court’s subject matter jurisdiction to enforce its previous orders; his motion to impose section 57.105 fees against the Clerk of the circuit court, when the Clerk was not a party to the action; and his challenge to the trial court’s broad discretion to schedule its own docket.

Appellant’s reply to this court’s show cause order was wholly unresponsive. Accordingly, attorney’s fees pursuant to section 57.105, Florida Statutes are hereby imposed against Appellant.

This cause is REMANDED to the trial court to determine a reasonable fee. The trial court’s order is AFFIRMED in all respects.

BROWNING, C.J., and POLSTON, J., concur.


text:
    Sherman Lamar JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4912.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no preserved reversible error apparent from the face of the record. We note that appellant’s pro se argument that his trial counsel provided ineffective assistance of counsel is more properly raised by a motion for post-conviction relief, as the deficient performance of counsel is not apparent on the face of the record. See Thompson v. State, 764 So.2d 630, 631 (Fla. 1st DCA 2000). Accordingly, we affirm appellant’s judgment and sentence.

AFFIRMED.

DAVIS and POLSTON, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.


text:
    Carlo M. SGROI, Appellant, v. Carol L. SGROI, Appellee.
    No. 5D06-1190.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    Michael M. Naughton of Michael M. Naughton, P.A., Jacksonville, for Appellant.
    Jose Debs-Elias of Jose Debs-Elias, P.A., Jacksonville, for Appellee.
   PER CURIAM.

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

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


text:
    OSCAR G. DE PINERES, PE, Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORPORATION, et al., Appellee.
    No. 5D06-1466.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    Oscar G. De Pineres, Auburn, pro se.
    Patrick F. Creehan and John J. Rimes, III, Tallahassee, for Appellee.
   PER CURIAM.

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

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


text:
    Jason Leroy MOREY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1469.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Rogan v. State, 934 So.2d 593 (Fla. 5th DCA 2006).

TORPY, LAWSON and EYANDER, JJ., concur.


text:
    David Michael BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1966.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Pearce v. State, 880 So.2d , 561, 570 (Fla.2004); Jennings v. State, 512 So.2d 169, 172 (Fla.1987).

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


text:
    Cynthia Ann CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2077.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    James S. Purdy, Public Defender, and Tomislav D. Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Davis v. Reynolds, 819 F.Supp. 20 (N.D.Fla.1970).

PLEUS, ORFINGER and EVANDER, JJ., concur.


text:
    Paul Alan HIRSCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2984.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    Robert R. Berry and Gregory W. Eisen-menger, of Eisenmenger, Berry, and Peters, Viera, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Wilson v. State, 952 So.2d 564 (Fla. 5th DCA 2007).

PLEUS, LAWSON and EVANDER, JJ., concur.


text:
    Jeffrey Ray HALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3035.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.

      Kepler B. Funk, Keith F. Szachacz and Alan S. Diamond, of Funk, Szachacz & Diamond, LLC., Melbourne, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See United States v. Dunn., 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Wilson v. State, 952 So.2d 564 (Fla. 5th DCA 2007).

PLEUS, LAWSON and EVANDER, JJ., concur.


text:
    Jerome BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1089.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    Jerome Butler, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. McCarthy v. State, 689 So.2d 1095 (Fla. 5th DCA 1997).

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


text:
    David Allen LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1429.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    David A. Lawrence, Carrabelle, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003); Price v. State, 598 So.2d 215 (Fla. 5th DCA 1992).

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


text:
    Darryl Maurice YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1446.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2007.
    Darryl Maurice Young, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Kwamin H. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3271.
    District Court of Appeal of Florida, First District.
    July 25, 2007.
    Kwamin H. Thomas, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


text:
    Terry HAMILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3470.
    District Court of Appeal of Florida, First District.
    July 25, 2007.
    Terry Hamilton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


author: POLEN, J.

text:
    Vinson PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2624.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant Vinson Peterson appeals a conviction for violation of probation and his resulting sentence of twenty-two years in prison. Peterson argues the trial court erred in finding he violated his probation and erred in giving him an illegal sentence of twenty-two years. We find no error in the trial court’s determination of violation of probation and affirm the trial court’s decision on this issue. However, we agree with Peterson’s contention that his twenty-two year sentence is illegal and reverse and remand for resentencing.

“The legality of a sentence is a question of law and is subject to de novo review.” Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005). At issue in this case is whether the trial court erred in failing to enter a written order specifying the specific condition Peterson violated, in adding four points to Peterson’s sentence for legal constraint, and in adding forty points for victim injury.

Initially, we hold it was error for the trial court to fail to enter a written order finding a violation of probation had occurred and identifying the specific condition that was violated. We remand the case to allow the trial court to enter the written order. See Rey v. State, 904 So.2d 566 (Fla. 4th DCA 2005) (“remanding for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated”).

Next we turn to Peterson’s contention that the trial court erred in adding points to his original sentencing score-sheet. In 1991 Peterson pleaded guilty to three counts of attempted sexual battery on a person under the age of twelve. Peterson’s original sentencing scoresheet listed a total of 281 points, with no points listed for victim injuries or for legal constraint. His guidelines sentence was seven to nine years with a permitted sentence of five-and-a-half to twelve years. The trial court sentenced Peterson to seven years in prison followed by ten years of probation. Following his release and subsequent violations of probation, Peterson was sentenced for the instant violation of probation. In imposing Peterson’s current sentence, the trial court listed 281 points for Peterson’s original crimes, and added 4 points for legal constraint and forty points for victim injury.

We find it was error for the trial court to add four points to Peterson’s sentencing scoresheet for legal constraint at the time of the original offense. The State concedes there was no evidence presented that Peterson was on probation when the underlying offenses occurred. On remand, the trial court should remove these four points from Peterson’s sentencing score-sheet. See Gibbs v. State, 667 So.2d 371 (Fla. 1st DCA 1995) (“Upon violating probation, a defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing.”).

Further, we find it was error for the trial court to add forty points to Peterson’s scoresheet for victim injury. The State argues that the probable cause affidavit in the underlying case shows there was a basis for finding victim injury. However, this probable cause affidavit was not relied upon at the original sentencing hearing in 1991 and “[canjnot be the basis upon which the trial court based its conclusions of ... victim injury.” McMillan v. State, 541 So.2d 152, 153 (Fla. 4th DCA 1989). There was no evidence of actual victim injury presented at the original sentencing hearing, and in fact, the charge was reduced to attempted sexual battery rather than sexual battery. Therefore, we find it was error for the trial court to add forty points for victim injury. See Marrs v. State, 770 So.2d 277, 279 (Fla. 4th DCA 2000)(error to include victim injury points on sentencing scoresheet where no points were found on original scoresheet and issue was not fully explored at sentencing). These points should also be removed upon remand.

However, we find that on remand the trial court is permitted to bump Peterson’s sentence up two cells for violations of probation that occurred prior to the instant violation of probation.

Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.

Fla. R.Crim. P. 3.701(d)(14).

[W]here there are multiple violations of probation, the sentence may be successively bumped to one higher cell for each violation. To hold otherwise might discourage judges from giving probationers a second or even a third chance. Moreover, a defendant who has been given two or more chances to stay out of jail may logically expect to be penalized for failing to take advantage of the opportunity.

Williams v. State, 594 So.2d 273, 275 (Fla.1992). In this case, the trial court determined that Peterson had violated his probation on two prior occasions, thereby allowing his sentence to be bumped up two cells in the sentencing guidelines.

We find that the trial court erred in failing to enter a written order specifying the specific condition of probation that Peterson violated and in adding points to his sentencing scoresheet for legal constraint and victim injury. We reverse Peterson’s sentence and remand the case for entry of a written order specifying the specific condition of probation that was violated and for resentencing without the added points for legal constraint or victim injury. In resentencing Peterson, the trial court is permitted to bump Peterson’s sentence up two cells for his previous violations of probation.

STEVENSON and TAYLOR, JJ., concur.


author: SHAHOOD, C.J.

text:
    Pamela SHRADER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-811.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.

      Maury Halperin, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

Pamela Shrader (“appellant”) was charged by grand jury indictment with first degree felony murder in the death of Joseph Kelly. The State alleged that appellant convinced her boyfriend, Noe Peña, to rob Kelly of a large amount of cash Kelly kept in his apartment. Peña killed Kelly in the process. Appellant seeks review of her conviction and sentence after being found guilty as charged following a jury trial. We affirm as to all issues raised. We write to address appellant’s claim that the trial court erred in denying her motion in limine seeking to redact portions of her taped grand jury testimony before it was played for the jury.

“[T]he question of whether to admit or reject the whole or any portion of a challenged recording is properly within the discretion of the trial court.” Pausch v. State, 596 So.2d 1216, 1219 (Fla. 2d DCA 1992). A trial court’s decision on the admissibility of evidence will not be reversed unless a clear abuse of that discretion is shown. Jones v. State, 908 So.2d 615, 620-21 (Fla. 4th DCA 2005).

Appellant’s motion in limine sought to redact portions of the testimony that appellant claimed contained statements of the prosecutor’s opinion as to appellant’s veracity and guilt. “The law is well settled that expressions of personal belief by a prosecutor are improper.” State v. Ramos, 579 So.2d 360, 362 (Fla. 4th DCA 1991). Specifically, appellant took issue with three questions by the prosecutor from the grand jury proceedings. They are: (1) “What did you discuss on the way over there to do the robbery?”; (2) “Did you feel that by telling [the victim] you’d be right back so he would leave the door unlocked, it [would] help Noe get [in]to Joe’s apartment so he could rob him?”; and (3) “When, in relationship to your being kicked out of the trailer, was it that you went and robbed Mr. Kelly?”

A reading of the prosecutor’s first two questions in context reveals that they were not expressions of his personal belief about appellant’s guilt. Just prior to the prosecutor asking the first question above, appellant provided some factual background regarding the night Kelly was killed. She explained that Peña knew where the victim lived from having previously traveled with appellant to the victim’s apartment when appellant borrowed money from the victim. Appellant stated she knew Peña was going to rob the victim and that it was wrong because the victim was a very good man who had always been good to her. The first two questions asked by the prosecutor simply used facts appellant had already provided in her testimony. The trial court did not err in refusing to redact these portions of appellant’s grand jury testimony.

The context that justified the first two questions was not present as to the third, and we hold the trial court erred in failing to redact it. See Pausch, 596 So.2d at 1219 (holding it was improper that jury heard detective’s statements to defendant in recorded interview that she had abused her son and was going to kill him). However, we hold the error was harmless. The focus of the harmless error test is on the effect on the trier of fact. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). In Pausch, the court found the admission of the detective’s statements harmful because “the jury ... could not have reasonably been expected to isolate and extract from the recording that which was admissible as evidence of the crime while disregarding the aspersions of guilt created by [the detective’s] words.” 596 So.2d at 1219; see also Sparkman v. State, 902 So.2d 253, 259 (finding detective’s out-of-court statements that he believed defendant had killed a child were too prejudicial to be harmless error).

Contrary to appellant’s suggestions, the present case does not present the same situation as Pausch. Although the individual statement was erroneously admitted, the full context of the prosecutor’s questions and appellant’s answers allowed the jury to disregard any aspersion of guilt in the prosecutor’s question and focus on the facts being elicited. Nor was the prosecutor’s statement here as blatantly prejudicial as the detective’s statement upon which we reversed in Sparkman.

Appellant also argues that the trial court erred in failing to redact portions of her grand jury testimony that referred to hearsay information from third parties. Specifically, appellant points to two questions appellant was asked about a neighbor who saw her coming or going from the back door of the victim’s apartment the day after the incident, and who also claimed to have seen the victim pushing appellant out of his apartment on another night.

Appellant’s argument on this point is based on Walker v. State, 842 So.2d 894 (Fla. 2d DCA 2003), which the trial court found distinguishable. In Walker, the trial court granted the defendant’s motion to exclude portions of his police interrogation that referred to hearsay from third parties. Id. at 895. Despite this, the tape as played to the jury contained “numerous references to hearsay information that the officers indicated they received from unspecified third parties.” Id. The portion of the interrogation played for the jury left the impression there was more evidence against Walker that was not presented. Id.

The trial court did not err in finding Walker factually distinguishable and failing to redact the specified portions of appellant’s grand jury testimony. The State did not introduce evidence that some unknown people saw appellant or accused her. The witness the prosecutor referred to was a neighbor, John Renderas. Rend-eras actually testified at trial about seeing a woman outside the victim’s apartment at the relevant times. There was no suggestion of evidence that was not presented to the jury.

Affirmed.

GROSS and MAY, JJ., concur.


text:
    Nancy VAN SANT, Esq., Petitioner, v. SACHER, ZELMAN, VAN SANT, PAUL, BEILEY, HARTMAN, ROLNICK & GREIF, P.A., Respondent.
    No. 3D07-463.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Andrew B. Rosenblatt, for petitioner.
    Stephens Lynn Klein and Cayla B. Ten-enbaum and Robert M. Klein, Miami, for respondent.
    Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The petitioner seeks certiorari review of an order approving the following disputed requests for production:

4. Any and all records or documents of any kind exchanged between the Plaintiff and Defendant law firm or any member of the law firm over the last four years including but not limited to letters, e-mail messages, memoranda, hand written notes, charts, analysis regarding any of the issues contained in the allegations of the complaint.
8. Copies of all written communications and correspondence between Plaintiff and any employee of Defendant, Sacher, Zelman which in any way pertain to the claims made in this lawsuit.
12. Copies of any and all documents which you claim support or demonstrate the allegations contained in the complaint filed herein that female attorneys were paid less than their male counterparts (as alleged at paragraph 36 of the complaint).
13. Copies of any and all documents in your possession and control which support any of the allegations and claims made in the complaint filed herein.

On the authority of Grinnell Corp. v. Palms 2100 Ocean Blvd., Ltd., 924 So.2d 887 (Fla. 4th DCA 2006), which involved virtually identical requests, and with which we entirely agree, the petition is denied.

Certiorari denied.


text:
    C.T.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2333.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Petitioner.
    Bill McCollum-, Attorney General, Tallahassee,- and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

C.T.B., a child, seeks a writ of habeas corpus, claiming that he was unlawfully committed to the Department of Juvenile Justice. C.T.B. was originally sentenced to a term of probation. Several weeks later, the trial judge sua sponte vacated the sentence in this case and resentenced C.T.B. to a level 8 program. We agree with C.T.B. that “a trial court is not free to change a valid and unchallenged sentence,” Herring v. State, 411 So.2d 966, 967 (Fla. 3d DCA 1982), and that the resentencing in this case violated double jeopardy. Id.; see also, E.D.C. v. State, 936 So.2d 1215 (Fla. 5th DCA 2006). Therefore, we grant the petition for writ of habeas corpus. We order the trial court to vacate its commitment order and reinstate the originally-imposed probationary sentence. Additionally, C.T.B. shall be immediately released from the commitment program ordered in this case.

WRIT GRANTED.

GRIFFIN, TORPY, and LAWSON, JJ., concur.


text:
    Roderick D. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2091.
    District Court of Appeal of Florida, First District.
    July 26, 2007.

      Roderick D. Brooks, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

DISMISSED.

BARFIELD, KAHN, and ROBERTS, JJ. concur.


text:
    Walter Lee BOYETTE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1891.
    District Court of Appeal of Florida, First District.
    July 26, 2007.
    Luke Newman of the Daley Law Office, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Walter Lee Boyette is hereby afforded a belated appeal from the order denying motion to correct illegal sentence in Suwannee County case number 00-19-CF. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BROWNING, C.J., BENTON, and VAN NORTWICK, JJ., concur.


text:
    Thomas L. CARMICHAEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1421.
    District Court of Appeal of Florida, First District.
    July 26, 2007.
    Thomas L. Carmichael, pro se, Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Thomas L. Carmichael is hereby afforded belated appeal from judgment and sentence in Bay County case number 2004-0127. The outstanding show cause order regarding jurisdiction in case number 1D07-0763 is hereby discharged and that appeal shall proceed for a disposition on the merits. Petitioner may move the trial court for appointment of counsel at public expense if he qualifies for such an appointment.

PETITION GRANTED.

BROWNING, C.J., BENTON, and VAN NORTWICK, JJ., concur.


text:
    T.F., Father of A.F. and T.F., Jr., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D06-4248.
    District Court of Appeal of Florida, First District.
    July 26, 2007.
    Rehearing Denied Aug. 20, 2007.
    Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Michael Lee, Department of Children and Families, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Father, appeals the termination of his parental rights pursuant to section 39.806(l)(e), Florida Statutes (2005), arguing the Department of Children and Families failed to prove that his continued involvement would harm his children irrespective of the provision of services and failed to provide him any services. We agree. The record is devoid of any evidence that his continued involvement would harm his children despite the provision of services, or that the Department provided him services. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 1002 (Fla. 1st DCA 2003) (reversing termination of parental rights pursuant to section 39.806(l)(c), because the record was devoid of evidence that services were offered or provided, or that it would have been futile to provide services); W.R. v. Dep’t of Children & Families, 928 So.2d 414, 418 (Fla. 1st DCA 2006) (reversing termination of parental rights pursuant to section 39.806(l)(c), because the record was devoid of evidence that the parent’s continued involvement in the parent-child relationship would threaten or harm the child).

REVERSED and REMANDED.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Vanessa Alicia PHILLIPS, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2942.
    District Court of Appeal of Florida, First District.
    July 26, 2007.
    Vanessa Alicia Phillips, pro se, Appellant.

      Bill McCollum, Attorney General, Linda Horton Dodson, Assistant Attorney General, and Kathleen Von Hoene, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Vanessa Alicia Phillips appeals a circuit court order denying her request to reinstate gain time lost as a result of a disciplinary report and an order imposing a lien on her inmate trust account. We dismiss the appeal on the merits because it is moot as Ms. Phillips has been released from prison. See Moore v. Moore, 764 So.2d 676, 677 (Fla. 1st DCA 2000) (“A petition that goes to the length of confinement, rather than to the fact of confinement, is mooted by the inmate’s release.”). However, we reverse the order imposing the lien and direct reimbursement of any monies removed from Ms. Phillips’s account towards the payment of that lien. See Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003); Marquez v. McDonough, 945 So.2d 652, 653 (Fla. 1st DCA 2007); Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005).

KAHN, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Douglas M. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1471.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Mayes v. State, 718 So.2d 852 (Fla. 4th DCA 1998), which holds that the trial court erred in admitting the police officer’s testimony that he recognized the defendant on a tape from prior encounters with the defendant, but the error was harmless under the circumstances since there was no impermissible cumulative effect from the improperly admitted evidence.

PLEUS, ORFINGER and EVANDER, JJ., concur.


text:
    Danny WILLIS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-0140.
    District Court of Appeal of Florida, First District.
    July 27, 2007.

      Danny Willis, pro se, Petitioner.
    Bill McCollum, Attorney General; Kathleen Von Hoene, General Counsel, Marjorie C. Holladay, Assistant General Counsel, and Monica Ryan, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Denied. Young v. Moore, 820 So.2d 901 (Fla.2002).

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    Janet JOYNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3161.
    District Court of Appeal of Florida, First District.
    July 27, 2007.
    William J. Sheppard, D. Gray Thomas, and Matthew R. Kaehergus of Sheppard, White, Thomas & Kaehergus, P.A., Jacksonville, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon the state’s proper concession of error, we reverse appellant’s judgment and sentence and remand for a new trial. See Smith v. State, 606 So.2d 641 (Fla. 1st DCA 1992).

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Abubaker ESHLIBI, Appellant, v. CONSOLIDATED BOX MANUFACTURING and CNA Insurance, Appellees.
    No. 1D06-5521.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    John J. Rahaim, II, Jacksonville, for Appellant.
    Bonnie J. Murdoch and Nicholas J. Elder, Jacksonville, for Appellees.
   PER CURIAM.

When a represented claimant enters into a lump-sum settlement with an employer and carrier, section 440.20(ll)(c), Florida Statutes (2006), only requires JCC approval of the attorney’s fees paid by the claimant to the claimant’s attorney. See § 440.20(ll)(e), Fla. Stat. (2006). A JCC lacks statutory authority to deny the attorney’s fees based upon costs charged to the claimant. Accordingly, the order is REVERSED.

KAHN AND VAN NORTWICK, JJ., concur.

BENTON, J., concurs in result.


text:
    Mary RICHARDSON, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-4227.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    Mary Richardson, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, and Sean T. Garner, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot. See Haynes v. State, 621 So.2d 680 (Fla. 2d DCA 1993) (holding that an appeal of an order challenging the denial of gain time upon resen-tencing for violation of probation is mooted by the release of the inmate from prison and properly dismissed).

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    Willie James WRIGHT, husband, Appellant, v. Monet Cathleen WRIGHT, Appellee.
    No. 1D06-4846.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    Jennifer A. Bowens, Jacksonville, for Appellant.
    Terence M. Brown of Terence M. Brown, P.A., Starke, for Appellee.
   PER CURIAM.

AFFIRMED. See Garvin v. Garvin, 930 So.2d 823 (Fla. 1st DCA 2006); Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983); Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004).

BARFIELD, KAHN, and PADOVANO, JJ., concur.


text:
    Robin R. ROMINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-18.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2007.
    Robin Romine, Ocala, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Matthews, 891 So.2d 479 (Fla.2004).

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    Edward WEBBER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4169.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2007.
    Edward J. Webber, Jr., Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See LaFlower v. State, 929 So.2d 58 (Fla. 5th DCA 2006); Colon v. Irwin, 732 So.2d 428 (Fla. 5th DCA 1999).

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    Kevin ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2671.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Paul S. Reed of Catania & Catania, P.A., Tampa, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kevin Anderson entered a plea of no contest to perjury in an official proceeding and was sentenced to 30 months in prison followed by six months of probation. In this appeal, Anderson attacks his sentence because the criminal charges arose “from a proceeding that violated his due process rights.”

This court does not have jurisdiction to review this issue because Anderson failed to file a motion to withdraw plea in the trial court, and instead filed this direct appeal. See Lloyd v. State, 876 So.2d 1227, 1228 (Fla. 4th DCA 2004); Oliver v. State, 899 So.2d 1195, 1197 (Fla. 5th DCA 2005); Carter v. State, 791 So.2d 525, 526-27 (Fla. 1st DCA 2001); Keith v. State, 582 So.2d 1200 (Fla. 1st DCA 1991); Harris v. State, 563 So.2d 792 (Fla. 1st DCA 1990); Jones v. State, 468 So.2d 253 (Fla. 2d DCA 1985); Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981); see also Leonard v. State, 760 So.2d 114 (Fla.2000).

The appeal is affirmed.

STONE, POLEN and GROSS, JJ., concur.


text:
    Robert SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-2623, 4D07-1023.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this Anders appeal, the court first consolidates case 4D07-1023 with case 4D06-2623, as each case seeks appellate review of the circuit court’s adjudication of guilt for violation of probation in lower court case 96-19625 after entry of a nolo contendere plea to indecent assault of a child under the age of sixteen years old. We affirm the order revoking appellant’s probation and imposing sentence, but we remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007); Rey v. State, 904 So.2d 566 (Fla. 4th DCA 2005); Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004).

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

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


text:
    Bonnie PHILLIPS, Appellant, v. Christopher Q. WINTTER, Appellee.
    No. 4D06-1547.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.

      Barry S. Franklin and Donald G. Cris-cuolo of Franklin & Criscuolo, North Miami Beach, for appellant.
    Sari Teichman Addicott of Addicott & Addicott, P.A., Hallandale Beach, for ap-pellee.
   PER CURIAM.

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

GUNTHER, HAZOURI, JJ., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Juan Ramon ALFONZO, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2274.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the order entered by the trial court rendered on February 27, 2007, wherein the lower court granted in part Appellant’s rule 3.800(b)(2)(B) motion. Appellant argues that the order was not rendered within the 60-day time limit. Therefore, the lower court was without jurisdiction to enter the order, even though the lower court had orally ruled within the 60-day time limit. The State concedes this point.

Accordingly, the order granting the motion to correct sentence rendered on February 26, 2007, is quashed and this cause is remanded to the trial court for resentencing. Barger v. State, 923 So.2d 597, 603 (Fla. 5th DCA 2006). Appellant need not be present during the resentencing. Id.

ORDER QUASHED; REMANDED.

ORFINGER, TORPY and EVANDER, JJ., concur.


text:
    Fabio BOTERO, Gilberto Penuela, et al., Appellant, v. AMERICA’S LATIN PRODUCTS, INC., Appellee.
    No. 5D06-3383.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    Arthur J. Higgins, of Law Office of Arthur J. Higgns, P.A., Orlando, for Appellant.

      Alberto E. Lugo-Janer, Kissimmee, for Appellee.
   PER CURIAM.

Fabio Botero, Gilberto Penuela, and Jul-ieta Tovar [collectively “Defendants”] appeal the trial court’s non-final order granting temporary injunctive relief in favor of America’s Latin Products, Inc. [“Plaintiff’]. We find no error in the trial court’s decision to enter the temporary injunction. It does appear, however, that the scope of the injunction is broader than warranted.

Defendant Tovar had no written employment agreement with Plaintiff; therefore, the trial court could, at most, enjoin Defendant Tovar from exploiting customer and supplier lists that she obtained during her employment. Defendants Penuela and Botero were subject to a non-compete; therefore, the scope of the temporary injunction should be limited by the terms of the non-compete.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, PLEUS and LAWSON, JJ„ concur.


text:
    J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D06-3045, 1D06-3048.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2007.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal is DISMISSED as moot.

WOLF, PADOVANO, and ROBERTS, JJ., concur.


author: PLEUS, J.

text:
    William THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3652.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, J.

We conclude the trial court did not abuse its discretion in the denial of the defendant’s motion to withdraw his plea. The trial court’s conclusion that the defendant was not affirmatively misled by Mr. Evilsizer, the assigned public defender, is supported by competent evidence.

Our affirmance is without prejudice to the defendant pursuing an ineffective assistance of counsel claim by way of a post-conviction proceeding.

AFFIRMED.

LAWSON and EYANDER, JJ., concur.


text:
    Keidrick T. HOLLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1355.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, J.

We affirm Holloway’s judgment and sentence for manslaughter in all respects except one. We strike the $65 “Criminal Ordinance Program” fee imposed pursuant to section 939.185, Florida Statutes, because that statute took effect after the instant offense was committed. Mitchell v. State, 954 So.2d 1263 (Fla. 5th DCA 2007).

AFFIRMED; FEE STRICKEN.

LAWSON and EYANDER, JJ., concur.


author: PER CURIAM. EVANDER, J.,

text:
    Kishorkumar M. MODHA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3320.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    James Dickson Crock, of James Dickson Crock, P.A., Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller and Brigid E. Collins, Assistants Attorney General, Day-tona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

PLEUS and LAWSON, JJ., concur.

EVANDER, J., concurs and concurs specially, -with opinion.

EVANDER, J.,

concurring specially.

The record reflects the prosecutor made several improper statements in her closing argument. The prosecutor’s repeated suggestions that defense counsel had “continued” the alleged victim’s embarrassment, discomfort, and humiliation by challenging her credibility was particularly egregious. These remarks constituted a personal attack on opposing counsel and were clearly improper. See Palazon v. State, 711 So.2d 1176 (Fla. 2d DCA 1998); Jenkins v. State, 568 So.2d 791 (Fla. 1st DCA 1990).

Because defense counsel failed to object, the issue is whether the prosecutor’s improper argument constituted fundamental error. Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). The Florida Supreme Court has defined fundamental error in closing argument as being error that “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. Based on the facts of this case, I cannot find fundamental error. I do conclude, however, that the prosecutor needs to be reminded of her duty to refrain from inflammatory argument so that the cause may be decided according to the evidence and the law. Palazon, 711 So.2d at 1178-79 (Blue, J., concurring).


author: NORTHCUTT, Chief Judge.

text:
    Gregory HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5574.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.
   NORTHCUTT, Chief Judge.

Gregory Haynes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order in all respects, save one. The postconviction court erred when it amended Mr. Haynes’ sentence on one count to add a term of drug offender probation, thereby unlawfully increasing his sentence.

In his motion to correct illegal sentences in three cases, Mr. Haynes contended that the trial court’s imposition of drug offender probation for the offenses of sale of cocaine (case 02-13110), possession of a controlled substance with intent to sell within 1000 feet of a place of worship (case 02-13111), and possession of cocaine with the intent to sell (case 02-06656) rendered those sentences illegal. Mr. Haynes correctly argued that drug offender probation is a sanction limited to chronic drug abusers who violate sections 893.13(2)(a) or (6)(a), Florida Statutes (2001); and section 948.01(13), Florida Statutes (2001), does not authorize drug offender probation for the foregoing offenses. See State v. Roper, 915 So.2d 622, 624 (Fla. 5th DCA 2005). Therefore, the postconviction court correctly struck drug offender probation from Mr. Haynes’ sentences for sale of cocaine, possession of a controlled substance with intent to sell within 1000 feet of a place of worship, and possession of cocaine with intent to sell.

However, in count two of case 02-13110, Mr. Haynes was charged with and convicted of possession of cocaine, which is a qualifying offense for drug offender probation. Recognizing that fact, the postcon-viction court amended Mr. Haynes’ five-year prison sentence for possession of cocaine — a legal sentence — by adding a term of drug offender probation to be served after his release from incarceration. In so doing, the postconviction court improperly modified Mr. Haynes’ legal five-year prison sentence by tacking on a seven-year probationary term. See Pitts v. State, 935 So.2d 634, 635 (Fla. 2d DCA 2006) (“A motion to correct an illegal sentence does not authorize the trial court to modify a legal sentence imposed on another count.”); Lane v. State, 627 So.2d 556, 557 (Fla. 2d DCA 1993). Accordingly, we reverse and remand for the postconviction court to strike drug offender probation from the sentence on count two in case 02-13110; otherwise, we affirm.

Affirmed in part, reversed in part, and remanded.

KELLY and CANADY, JJ„ Concur.


text:
    David M. DEREN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2039.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.

      Paul Morris of Law Offices of Paul Morris, P.A., Miami, and Robert J. Watson of Watson & Steele, Stuart, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, David M. Deren, appeals his conviction of one count of battery, a lesser included offense, one count of disorderly conduct, and one count of felony battery. Deren received a sentence of nine months with credit for fifty-three days served. We affirm on all points raised on appeal, but write to address Deren’s argument that the State’s failure to disclose an insurance letter resulted in a discovery violation and requires reversal.

This case began with a bar fight at the Stuart Ale House. Deren intervened in an altercation involving Jerry Fitzpatrick and Dei-en’s friend, Nathan Stewart. The altercation happened after Fitzpatrick, the Ale House’s bouncer, asked Deren and Stewart to leave. During the course of the fight, Deren and Fitzpatrick exchanged blows. After the incident, Fitzpatrick complained of having received injuries in the fight and could not work.

The Hartford Company, the Ale House’s insurance provider, sent a letter to the State detailing that Fitzpatrick had received money for a worker’s compensation claim. Hartford paid Fitzpatrick $20,956.47 to cover medical bills and $2,946.84 to cover lost wages. The State had possession of this letter two months prior to the trial’s conclusion, but did not provide the information to Deren’s counsel until the trial’s sentencing phase.

On appeal, Deren argues the prosecution’s suppression of the insurance letter constitutes a denial of material evidence and resulted in a Brady evidentiary violation. Deren alleges that the letter conveys Fitzpatrick’s financial motive to testify that Stewart was the aggressor in the initial fight, since, as a matter of law, Fitzpatrick would not be entitled to any money if he was the aggressor. See § 440.09(3), Fla. Stat. (2007). Deren claims his ignorance of the letter’s existence crippled his ability to demonstrate Fitzpatrick’s bias at trial.

To prove a Brady violation, a defendant must show that: (1) the State possessed evidence favorable to the defendant (including impeachment evidence); (2)the defendant neither possesses the evidence nor could he obtain it himself with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different had the evidence been disclosed to Appellant. Melendez v. State, 612 So.2d 1366, 1368 (Fla.1992).

At issue here is the second Brady prong: whether Deren, with reasonable diligence, could have found the worker’s compensation information included in the Hartford insurance letter. “There is no Brady violation where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence.” Freeman v. State, 761 So.2d 1055, 1062 (Fla.2000) (quoting Provenzano v. State, 616 So.2d 428, 430 (Fla.1993)); see also Roberts v. State, 568 So.2d 1255, 1260 (Fla.1990); James v. State, 453 So.2d 786, 790 (Fla.1984); U.S. v. Prior, 546 F.2d 1254, 1259 (5th Cir.1977) (“Numerous cases have ruled that the government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.”).

We find that while the State erred in failing to provide the letter to defense counsel, this failure did not result in a Brady violation requiring reversal. First, although Deren did not know the total of Fitzpatrick’s insurance payments, defense counsel admitted at trial that he was aware there was a worker’s compensation claim. While defense counsel cross-examined Fitzpatrick about the claim, he did not question Fitzpatrick about the amount of money he received or the value of his benefits.

Second, Deren possessed all of Fitzpatrick’s medical records. These records, though they do not contain billing information, give an accurate portrayal of what treatments Fitzpatrick received. Deren’s counsel admitted he did not depose any doctors on the amount of the treatments’ costs or pursue the matter any further. We find Deren should reasonably have known that, as Fitzpatrick received his injuries while at work, he mostly likely received worker’s compensation.

“[The] state need not actively assist the defense in investigating a case.” Hegwood v. State, 575 So.2d 170, 172 (Fla.1991) (quoting Hansbrough v. State, 509 So.2d 1081, 1084 (Fla.1987)). In this case, Deren had access to records detailing the type of medical care Fitzpatrick received and should have known about Fitzpatrick’s worker’s compensation payments. Further, Deren, through the exercise of “reasonable diligence,” could have obtained the information found in the insurance letter. Freeman, 761 So.2d at 1062. Therefore, we find that, although the State should have provided this letter in discovery, its suppression does not meet the second Brady prong and no violation occurred. Based on the foregoing, we affirm.

Affirmed.

STONE and gross, JJ., concur.

      . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


text:
    Melvin SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4572.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Neither of the grounds alleged in the motion allege proper subjects of rule 3.800(a) relief.

First, appellant claims that the court placed additional conditions on the plea agreement which were not accepted by appellant. This issue does not go to the legality of the sentence but the validity of the plea or conviction.

Second, appellant objects to being sentenced in absentia when he failed to appear at his sentencing proceeding. Denial of the right to be present at sentencing does not make the resulting sentence illegal for rule 3.800(a) purposes. See, e.g., Patterson v. State, 904 So.2d 593 (Fla. 4th DCA 2005) (affirming denial of rule 3.800(a) motion claiming defendant was sentenced in absentia, without prejudice to raise this issue in a timely rule 3.850 motion); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001) (holding habeas corpus claim of resentencing in absentia was not cognizable either as a rule 3.800(a) or a rule 3.850 motion, though a new sentencing hearing might have been required if direct review of the sentencing order had been sought).

Affirmed.

GUNTHER, WARNER and FARMER, JJ., concur.

      . In any event, the record reflects that the court did not accept the plea until he added the condition that defendant appear for sentencing. The defendant agreed to the plea so stated by the trial court.


text:
    STATE of Florida, Appellant, v. Justin Wade SULLIVAN, Appellee.
    No. 5D06-3316.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State of Florida appeals an order suppressing Justin Wade Sullivan’s confession to the charge of capital sexual battery. Following an evidentiary hearing, the trial court considered the totality of the circumstances and ruled that the State failed to meet its burden of establishing that Sullivan’s confession was voluntary. A trial court’s ruling on the voluntariness of a confession will not be overturned unless clearly erroneous. E.g., Bonifay v. State, 626 So.2d 1310 (Fla.1993). Because the defense presented ample evidence which called into doubt the voluntariness of Sullivan’s confession, the trial court’s ruling on this issue must stand. Id.

The trial court also separately determined that law enforcement violated Sullivan’s due process rights by failing to record their interview with Sullivan in its entirety. First, police officers are not required to tape record confessions. E.g., State v. Williams, 386 So.2d 27 (Fla. 2d DCA 1980). Second, the trial court expressly found that the officer was not acting in bad faith when he failed to tape Sullivan’s entire interview. Under these circumstances, Sullivan’s due process rights were not violated as a matter of law. See, e.g., State v. Daniels, 699 So.2d 837 (Fla. 4th DCA 1997).

Therefore, we affirm the suppression of Sullivan’s confession but reverse that portion of the order finding a due process violation.

AFFIRMED IN PART AND REVERSED IN PART.

PLEUS, LAWSON and EVANDER, JJ., concur.


text:
    Judy K. BEARDSLEE, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 5D06-4314.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.

      Frederic B. O’Neal, Windermere, for Appellant.
    Bill McCollum, Attorney General, and Jonathan A. Glogau, Chief, Complex Litigation Division, Office of the Attorney General, Tallahassee, for Appellee.
   PLEUS, J.

Judy K. Beardslee challenges a final order of the Florida Elections Commission (FEC) finding her guilty of failing to report an election contribution to her campaign and fining her $1,000. Specifically, she argues that her husband’s purchase of $148.56 in campaign yard signs from a joint personal bank account of the parties was not an unreported campaign “contribution,” but rather was an “independent expenditure” not subject to the reporting requirement. Alternatively, Beardslee maintains that her failure to report the “contribution” was not shown to be willful.

Our review of the FEC’s action consists of determining whether competent substantial evidence supports the agency’s findings of fact while legal determinations are reviewed de novo. Wise v. Dep’t of Mgmt. Servs., 930 So.2d 867 (Fla. 2d DCA 2006). An appellate court typically defers to the administrative agency on matters of interpretation of statutes and rules within the agency’s purview, so long as that interpretation is consistent with legislative intent and is supported by substantial competent evidence. Cagle v. St. John’s County Sch. Dist., 939 So.2d 1085 (Fla. 5th DCA 2006).

As to the first issue, subsections 106.011(3) and (5)(a), Florida Statutes (2004), define campaign “contribution” and “independent expenditures” in relevant part as follows:

(3) “Contribution” means:
(a) A gift, subscription, conveyance, deposit, loan, payment, or distribution of money or anything' of value, including contributions in kind having an attributable monetary value in any form, made for the purpose of influencing the results of an election or making an electioneering communication....
(5)(a) “Independent expenditure” means an expenditure by a person for the purpose of expressly advocating the election or defeat of a candidate or the approval or rejection of an issue, which expenditure is not controlled by, coordinated with, or made upon consultation with, any candidate, political committee, or agent of such candidate or committee. An expenditure for such purpose by a person having a contract with the candidate, political committee, or agent of such candidate or committee in a given election period shall not be deemed an independent expenditure.

The significance of the distinction is this: contributions must be reported by the candidate in accordance with section 106.07, Florida Statutes (2004), while independent expenditures in the amount of $100 or more must be reported by the person making such expenditure. § 106.071, Fla. Stat.

Mrs. Beardslee argues that her husband’s purchase of the campaign yard signs was an independent expenditure rather than a contribution because Mr. Beardslee did not have an agency relationship with her campaign. She argues that the FEC applied an erroneous test in determining the issue of principal-agency relationship. The ALJ and FEC concluded that Mr. Beardslee’s “regular and multiple acts of assistance to [Mrs. Beardslee’s] campaign made him an agent of the campaign” and thus the purchase could not be an “independent expenditure.” Mrs. Beardslee argues that this focus on the actions of Mr. Beardslee without any finding that she authorized or controlled her husband’s actions, renders the legal conclusion invalid.

Mrs. Beardslee focuses too narrowly on the elements necessary to create an agency relationship. While agency is normally a contractual relationship created by agreement of the parties, it may also be inferred from past dealings between the parties. Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977). It may be proved by the facts and circumstances of each particular case, including the words and conduct of the parties. Id. See also Lee v. American Family Life Assur. of Columbus, 431 So.2d 249 (Fla. 1st DCA 1983) (statement contained in contract that relationship is one of independent contractor is not conclusive; agency may be inferred from past dealings between the parties). As further explained in Sapp:

Control and domination need not be actual but may be binding upon the principal if apparent. That is, if the principal has held the agent out to the public as being possessed of the requisite authority, and a third person is aware of his authority and has relied on it to his detriment, the principal is estopped from denying the agency relationship. Id. at 367.

See also Amoroso v. Samuel Friedland Family Enters., 604 So.2d 827 (Fla. 4th DCA 1992).

Competent, substantial evidence exists to support the FEC’s conclusion that an agency relationship existed between the Beardslees. It is clear Mr. Beardslee was acting in furtherance of his wife’s campaign when he purchased the yard signs. He was active in his wife’s campaign and bought the signs with money from the parties’ joint checking account. Mrs. Beardslee saw the signs before the election and saw her husband with them. The signs included a disclaimer “Paid Political Advertisement by Judy Beardslee,” again reflecting that Mr. Beardslee was not making an independent expenditure, but instead was directly acting on behalf of his wife’s campaign. Mrs. Beardslee argues that the FEC’s ruling would render “every campaign worker who does ‘regular and multiple acts of assistance’ to a campaign ... an ‘agent’ of the campaign for reporting purposes” and place an unfair reporting burden on the candidate. The ALJ succinctly disposed of this contention in his recommended order:

Furthermore, it would stretch the meaning of the word “independent” in this context beyond reason to view an expenditure for the direct benefit of a candidate, made by the candidate’s spouse, who worked on Respondent’s campaign, using money from a checking account jointly owned by the candidate, as an independent expenditure.

As to the second issue, Mrs. Beardslee was sanctioned under subsection 106.07(5), Florida Statutes, which provides:

The candidate and his or her campaign treasurer, in the case of a candidate, or the political committee chair and campaign treasurer of the committee, in the case of a political committee, shall certify as to the correctness of each report; and each person so certifying shall bear the responsibility for the accuracy and veracity of each report. Any campaign treasurer, candidate, or political committee chair who willfully certifies the correctness of any report while knowing that such report is incorrect, false, or incomplete commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

She argues that while she omitted reporting the campaign sign expenditure, no evidence was presented of a willful violation.

The FEC counters that section 106.37, Florida Statutes, contains the following definition of “willful violations”:

A person willfully violates a provision of this chapter if the person commits an act ... showing reckless disregard for whether the act is prohibited under this chapter.... A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.

“Willfulness” is a question of fact. See Guetzloe v. Florida Elections Comm’n, 927 So.2d 942 (Fla. 5th DCA 2006); Fugate v. Fla. Elections Comm’n, 924 So.2d 74 (Fla. 1st DCA 2006). Our review consists of determining whether the final order references competent substantial evidence to support the finding of willfulness.

The ALJ found nothing in the record to suggest “that this omission was studied, purposeful, or otherwise calculated to avoid the requirements of the law.” Rather, the inquiry “turns on whether Respondent’s certification of the inaccurate treasurer’s report was done with reckless disregard for the accuracy of the report.” The ALJ continued that while the 2004 campaign was Mrs. Beardslee’s first, she admitted to not making much of an effort to inform herself of the election laws. The ALJ continued:

48. [Mrs. Beardslee] signed a “Statement of Candidate” that she had received a copy of Chapter 106, Florida Statutes, and that she read and understood the law. When she signed this statement, she had not read Chapter 106 and could not have understood the law. It appears she has yet to read the law.
49. [Mrs. Beardslee] stated that she “naively” assumed the city clerk would tell her anything she needed to know or do to comply with the election laws.
50. Reporting campaign contributions is arguably the most basic requirement of the election laws. It is the duty of the candidate to read the treasurer’s report before signing it and to be alert for any errors which, based on the candidate’s own knowledge, appear on the face of the report. Diaz de la Portilla v. Florida Elections Commission, 857 So.2d 913 [(Fla. 3d DCA 2003) ] at 921.
51. [Mrs. Beardslee] did not show even minimal interest in ascertaining whether the yard signs might constitute a contribution to her campaign that would have to be reported. A very small effort on [Mrs. Beardslee]’s part would have been sufficient for her to discover that the yard signs had to be reported on her campaign treasurer’s report.
52. If, under the facts of this case, [Mrs. Beardsleejs actions do not constitute reckless disregard for whether she was complying with the reporting requirements of the law, then candidates are free to complacently ignore the election laws and expect to be absolved by a claim of ignorance should any non-compliance be discovered later.

Section 106.37 in defining “willful violations” includes “wholly disregarding] the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.” The ALJ’s findings, adopted by the FEC, reflect a disinterest and disregard of the election laws on the part of Mrs. Beard-slee. On appeal, she argues that she is a lay person running an election campaign in a small town which somehow excuses her disinterest in the laws applicable to election campaigns. Chapter 106 does not distinguish between “big time” election campaigns and modest campaigns. It requires candidates for public office to make some effort to acquaint themselves with election laws. The ALJ found Mrs. Beardslee made no such effort and that finding, adopted by the FEC, is sufficient to establish a willful violation.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.


author: STRINGER, Judge.

text:
    Russell Levon JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5315.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Russell Johnson appeals from the revocation of his probation, contending that the evidence presented by the State was legally insufficient to support a finding that he had willfully and substantially violated his probation. The trial court found that Johnson had violated his probation by committing new law offenses. Because the only evidence linking Johnson to the alleged new offenses was hearsay, we reverse and remand for Johnson to be reinstated to probation.

The revocation hearing in this case was held on three separate days over a period of a month. On the first day of the hearing, the State called several individuals who testified that on the night of April 30, 2006, the tires on their vehicles had been slashed. Some of these individuals also testified that items had been stolen from their vehicles. One of these individuals, a Ms. Pressley, testified that all four tires on her car were slashed and “money” was stolen from the console of her car. She testified that the “money” totaled eight or nine dollars. Neither Ms. Pressley nor any of the other individuals who testified saw who committed these crimes.

On the second day of the hearing, Johnson called several witnesses who provided him with an alibi for portions of the evening of April 30, 2006. On the third day of the hearing, the State called various police officers who were involved in the investigation of the crimes. At this hearing, Officer Timothy Bergman testified that he was on patrol on the evening of April 30, 2006, when he spotted Johnson walking down the street pushing a large, wheeled garbage can and pulling a pressure washer. Officer Bergman pulled up alongside Johnson and asked him where he got the items. Johnson told him that the items belonged to him, that he performed masonry work, and that he was heading to work with the items.

During this brief conversation, Officer Bergman noticed that there were two knives sticking up from the top of the garbage can. Officer Bergman called for backup at that point and placed Johnson in the back of his patrol car for officer safety. While Johnson was in the back of the patrol car, Officer Bergman looked into the garbage can and noticed an automobile insurance card. Officer Bergman asked the police dispatcher to run the VIN listed on the insurance card to determine whose insurance card it was. The dispatcher subsequently notified Officer Bergman that the vehicle listed on the insurance card was owned by a Mr. Shaw. Officer Bergman then called Mr. Shaw, who went outside his residence and then reported back to Officer Bergman that his vehicle had been vandalized and items stolen from inside. Based on this information, Officer Bergman arrested Johnson. After doing so, Officer Bergman more fully examined the contents of the garbage can. He testified that it contained tools, clothing, loose change in a white bucket, and other miscellaneous items that might be found in the center console of a car. All of the items were subsequently delivered to police headquarters.

The State next called Officer Antonio Rosario. Officer Rosario testified that he spoke with a Mr. Pinder on the morning of April 30, 2006. Mr. Pinder told Rosario that a new pressure washer had been stolen from the carport beside his house. Officer Rosario testified that he was aware that a pressure washer had been recovered from Johnson, and Officer Rosario was told that Mr. Pinder later identified the pressure washer recovered from Johnson as his; however, Officer Rosario was not present when Mr. Pinder identified it.

The State also called Officer Sarah Hinsz. She testified that she was called to the area where Johnson was found to assist in the investigation, and she interviewed an individual named Gregory Smith. Officer Hinsz testified that Mr. Smith told her that masonry tools had been stolen from the bed of his pick-up truck. Officer Hinsz testified that she called police headquarters and was told that masonry tools had been recovered from Johnson. Officer Hinsz was not present when Mr. Smith allegedly identified the tools recovered from Johnson as his.

Officer Hinsz also testified that she spoke with Ms. Pressley about items stolen from her car. According to Officer Hinsz, Ms. Pressley told her that black cassette tapes and a pink change purse containing quarters were stolen from her car. Officer Hinsz testified that she called the detective in charge of the case, and he told her that they had recovered similar items from Johnson. According to Officer Hinsz, Ms. Pressley later identified the recovered items as hers; however, Officer Hinsz was not present when this occurred. Instead, she was told of the identification by another officer.

Based on this evidence, the trial court found that Johnson had violated his probation by committing the thefts as alleged in the affidavit of violation. In this appeal, Johnson contends that the trial court abused its discretion in so finding because the only evidence presented to link Johnson to the alleged offenses was hearsay. We agree.

Although hearsay evidence is admissible at a revocation hearing, revocation may not be based solely on hearsay evidence. Blair v. State, 805 So.2d 873, 876 (Fla. 2d DCA 2001); Colina v. State, 629 So.2d 274, 275 (Fla. 2d DCA 1993). While probation may be revoked based on a combination of hearsay and nonhearsay evidence, J.F. v. State, 889 So.2d 130, 132 (Fla. 4th DCA 2004); Young v. State, 742 So.2d 418 (Fla. 5th DCA 1999), when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue. Blair, 805 So.2d at 877; J.F., 889 So.2d at 132. If the State fails to do so, revocation is improper.

For example, in J.F., Officer Yancey responded to a call concerning the theft of a tire and wheel from a Lincoln Navigator. J.F., 889 So.2d at 131. Yancey saw the Navigator propped up on cinder blocks with a tire and wheel missing. Yancey was told that Officer Rajawa had left the scene in pursuit of a black Ford Explorer whose occupants had been seen loading items near the Navigator. When Rajawa stopped the Explorer, he found the Navigator tire and wheel inside. Rajawa reported to Yancey that J.F. was inside the Explorer when it was stopped, but Yancey did not see J.F. in the Explorer or otherwise in possession of the Navigator tire and wheel.

At the hearing seeking to revoke J.F.’s probation based on this alleged new offense, Yancey testified to his observations. He also testified to what he was told by Rajawa about J.F. being in the Explorer when it was stopped. Based on this evidence, the trial court revoked J.F.’s probation, noting that it could rely on the presumption that arises from the possession of recently stolen property to determine that J.F. had stolen the Navigator tire and wheel. Id. However, the Fourth District reversed, noting that while the State had presented nonhearsay evidence that the Navigator tire and wheel were stolen, it had not presented any nonhearsay evidence that J.F. had been in possession of them. Id. at 132. Thus, the evidence was insufficient to support the revocation of J.F.’s probation.

In this case, the trial court sought to rely on the same presumption concerning possession of recently stolen property that the court relied on in J.F. Here, the State presented direct, nonhearsay evidence that Johnson was found in possession of certain specified property. However, the State failed to present any nonhearsay evidence that the property found in Johnson’s possession was recently stolen. Officers Bergman, Rosario, and Hinsz testified that they were told by various individuals that items had been stolen from their vehicles. Officers Rosario and Hinsz also testified that they were told by other officers that these individuals subsequently identified items recovered from Johnson as theirs. This testimony, which is nothing but pure hearsay, was the only evidence presented by the State to establish that the items found in Johnson’s possession were recently stolen.

In its oral findings, the trial court stated that it was relying on the testimony of Ms. Pressley and Officer Hinsz to link Johnson to the alleged thefts. However, a review of the transcript shows that no nonhearsay testimony linked Ms. Pressley’s stolen items to those recovered from Johnson.

On the first day of the hearing, Ms. Pressley testified that “eight or nine dollars” were stolen from the console of her car. She also testified that this money was recovered by the police. Ms. Pressley did not testify as to whether the money was in change or bills, and she did not testify that it was in any type of container. On the third day of the hearing, Officer Hinsz testified that Ms. Pressley told her that black cassette tapes and a pink change purse containing quarters were taken from the center console of her car. Officer Hinsz testified that she was told by another officer that these items were recovered from Johnson. Like in J.F., Officer Hinsz’s testimony that another officer told her that Ms. Pressley’s stolen property was found in Johnson’s possession was legally insufficient to support the revocation of his probation. Moreover, while there was direct evidence that Johnson was found in possession of loose change, there was no testimony of any kind to establish that the loose change found in the garbage can was the “eight or nine dollars” stolen from Ms. Pressley.

Because the only evidence linking Johnson to the commission of the thefts at issue was hearsay, the State failed to present legally sufficient evidence to support the revocation of Johnson’s probation based on the commission of a new offense. While the State might have been able to call other witnesses who could have established the necessary link with nonhearsay testimony, it chose not to do so. Accordingly, we reverse the revocation of Johnson’s probation and remand for him to be reinstated to probation in this case.

Reversed.

CASANUEVA and KELLY, JJ., Concur.

      . We note that the State also charged Johnson with violating his probation by having weapons in his possession. Because the trial court made no factual findings to support revocation on this basis, we cannot affirm the revocation on this basis.