text:
    Bobby A. LaTULIP, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D05-2590.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.
    Bobby A. LaTulip, pro se, Petitioner.
    Chris Korn, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner’s argument that the trial court departed from the essential requirements of law by denying his petition for writ of mandamus is without merit and is rejected. But because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, the trial court improperly imposed liens upon the petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash the lien orders imposed as a result of petitioner’s filing of this petition for writ of mandamus. The trial court should direct the reimbursement of any funds that have been withdrawn from the petitioner’s account to satisfy the improper lien orders.

The petition is DENIED as to the challenge to the order by which the trial court denied mandamus, but it is GRANTED as to the challenge to the lien orders and those orders are hereby QUASHED.

WOLF, VAN NORTWICK, and BROWNING, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Spencer SLATE, Appellant, v. David RICE, The Honorable Harry L. Sawyer, Supervisor of Elections for Monroe County, Florida, and The Honorable Lester Sola, Supervisor of Elections for Miami-Dade County, Florida, Appellees.
    No. 1D06-4363.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2006.
    David E. Ramba, John W. Forehand and M. Christopher Lyon of Lewis, Longman & Walker, P.A., Tallahassee, for Appellant.
    Harry 0. Thomas and Christopher B. Lunny of Radey, Thomas, Yon & Clark, P.A., for appellee Rice.
    Donald E. Yates of Law Office of Donald E. Yates, Key West, for appellee Sawyer.
    Murray A. Greenberg, Miami-Dade County Attorney, and Oren Rosenthal, Assistant County Attorney, Miami, for appel-lee Sola.
   PER CURIAM.

Spencer Slate brought an action in the Circuit Court for Leon County, seeking declaratory and injunctive relief based on a claim that David Rice had violated the Resign to Run Law, section 99.012, Florida Statutes (2006), and asking that Rice’s name be removed from the ballot as a Republican Party candidate for the Florida House of Representatives in District 120. Judgment was entered for defendant Rice and Slate appeals. We have carefully read the briefs of the parties and the order of the circuit court, and reviewed the applicable law. It is our conclusion that the reasoning and the result of the circuit court are correct and, accordingly, the judgment is affirmed.

AFFIRMED.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


author: SEALS, JAMES H., Associate Judge.

text:
    Molly BOWEN; Molly Bowen as Guardian of Anna Serena, David Serena, Joel Serena, Grace Clayton, and Rebecca Serena; Dorothy Bowen; Sunday Haas; Sam Blanton, III; Sam Blanton, III, as Guardian of Sam Blanton, IV; Leigh Fathauer; Jose Fernandez; and Diane Ballard; Appellants/Cross-Appellees, v. James D. BREWER, Walter L. Brewer, and Robert C. Brewer, Appellees/Cross-Appellants.
    No. 2D05-3400.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2006.

      John Rimes, III, Tallahassee, for Appellants/Cross-Appellees.
    Hank B. Campbell of Gray Robinson, P.A., Lakeland, for Appellees/Cross-Ap-pellants.
   SEALS, JAMES H., Associate Judge.

The appellants (the “Bowens”) and their attorneys appeal from a final judgment for attorney’s fees and costs in favor of James D. Brewer, Walter L. Brewer, and Robert C. Brewer (the “Brewers”) under section 57.105, Florida Statutes (2003). The trial court found that the Brewers were entitled to recover $40,428.50, one-half to be paid by the Bowens, and the other half by their attorneys. In its order, the trial court found that the Bowens “should have known before or shortly after suit was filed that the allegations against the Brewers were unfounded.” Because the trial court’s finding is not supported by competent, substantial evidence, we reverse the award of fees under section 57.105.

The trial court also awarded the Brewers $283.59 in costs. Because the Brewers were the prevailing parties in the litigation, they were entitled to an award of costs under section 57.041. Accordingly, we affirm the $283.59 cost award.

The Brewers filed a cross-appeal for $4950 which they say they expended for an expert witness who testified at the trial court hearing on their claim for attorney’s fees. The trial court did not award the Brewers any amount as expert witness fees and did not address the issue in its final order. In light of our decision to reverse the trial court’s award of attorney’s fees, we decline to order the trial court to consider an award of expert witness fees to the Brewers.

FACTS AND PROCEDURAL BACKGROUND

The Bowens own residential property along Horse Creek in DeSoto County. The Brewers own several thousand acres of adjacent agricultural property. Vernon C. Hollingsworth, Jr., owns land contiguous to that of the Brewers and which may be entered at a common access point on S.R. 70. The Bowens filed suit in December 2002 against, among others, the Brewers and Hollingsworth. The Bowens’ amended complaint, filed February 18, 2003, alleged that the defendants had deposited sewage sludge on their own property and that the sludge had spread to Horse Creek. The resulting contamination and foul odors had rendered the Bow-ens’ property virtually uninhabitable and caused the Bowens illness and other discomforts.

On September 5, 2003, after the Bowens had an opportunity to depose Walter Brewer, the Brewers filed a motion for summary judgment on all claims against them. They argued that Walter Brewer’s unequivocal denial, in his deposition, that any sludge had ever been deposited on the Brewers’ property demonstrated that there was no genuine issue of material fact and that the Brewers were entitled to judgment as a matter of law.

After a hearing, the trial court granted the Brewers’ motion and entered “summary final judgment” on February 24, 2004. In the order, the trial court reserved jurisdiction to assess attorney’s fees and costs against the Bowens, if appropriate. The final judgment was not appealed.

On March 17, 2004, the Brewers filed a motion for attorney’s fees under section 57.105(1) and to tax costs in accordance with section 57.041. In support of their motion for fees, the Brewers filed Walter Brewer’s deposition. In his deposition, Walter Brewer testified that he is a lawyer and has represented Hollingsworth and the other Brewers in various matters. Brewer asserted that he had represented Hollingsworth in a negotiation that involved a lease and the application of sewage sludge to lands.

Brewer identified the Brewer property in DeSoto County as the “Janice Lee Ranch.” The Janice Lee Ranch comprises of several thousand acres and is located at S.R. 70 and Curtis Road. The Brewers are joint owners of the Janice Lee Ranch, which is used for growing citrus and raising cattle. Walter Brewer admitted that “years ago” the Brewers had considered applying sewage sludge to the Janice Lee Ranch and had permitted “some sludge outfit” to tour the property. However, he stated unequivocally that no sewage sludge had ever been put on their property. When shown discovery documents signed by Hollingsworth that purported to authorize sludge application to the Brewers’ land, the following exchange took place:

Q. So if Mr. Hollingsworth signed a document in which he stated that he had the authority to authorize the application of sewage sludge on your property, your answer would be that he did not have that authority?
A. Probably had it through assumptions.
Q. Okay. Why don’t you run through what those assumptions would have been?
A. That we were interested in possibly applying sludge to a portion of the ranch, and that I believe it was my father who took someone around the ranch and showed it to them, and my assumption is that whoever with Blue or whatever just went back to Mr. Holl-ingsworth and said, “Here’s the application. Please sign it.”

In opposition to the Brewer’s motion for fees, the Bowens filed Molly Bowen’s affidavit and several documents obtained through discovery. One of the most pertinent of these documents was a full color map depicting a portion of DeSoto and Manatee Counties from the Hardee County line south to S.R. 70. The map is headed “Hollingsworth/Brewer” and was prepared by or for an entity called “Blue Environmental,” which the Bowens contend has a corporate relationship to Blue Septic Tank Service, Inc., one of the defendants in the lawsuit. At his deposition, Walter Brewer admitted that the property depicted on the map included the Janice Lee Ranch. Ms. Bowen’s affidavit represented that she had “observed for years sewage sludge tankers and dump trucks actively and busily turning north off S.R. 70, delivering sewage sludge to the northwest corner of DeSoto County, the location of the ‘Hollingsworth-Brewer’ site.”

The Bowens also filed a letter on the letterhead of Severn Trent-Avatar Utility Services, LLC, dated April 24, 2001, and addressed to Rudy Isaac, Domestic Waste-water Section, Florida Department of Environmental Protection (DEP). The letter states in part:

These forms are being submitted in order to allow the referenced facilities to begin land applying residuals to the Hollingsworth/Brewer, Anthony Carlton Ranch, and Triple D. Ranch application sites as of April 25, 2001.

The Bowens also produced a DEP chart entitled “Southwest District Land Application Sites-Desoto County.” The chart includes Hollingsworth/Brewer as a site name. Further, a document on the DEP letterhead entitled “Agricultural Use Plan,” identified the location of the “Holl-ingsworth/Brewer Desoto” site to be at Curtis Road and S.R. 70. Walter Brewer admitted during his deposition that the S.R. 70/Curtis Road intersection was the site of the Brewer property. The document identified the site owner as V.C. Hollingsworth, Jr., and the site manager to be Jim Brewer. The “facility name” was identified as Blue Septic Tank Services, Inc. In addition, the Bowens produced a copy of a letter dated May 11, 2001, on DEP letterhead addressed to “Mr. Jack Myers, Blue Septic Tank Services, Inc.” The letter identified sites with “current” residual landspreading, including Hollings-worth/Brewer sites in both DeSoto and Manatee Counties.

Further, the Bowens found and offered a document headed “Landowner Request & Consent for Biosolids” with the imprinted name of “Blue Environmental.” The “Landsite Name” on the document was Hollingsworth/Brewer; the “Owner” was identified as V.C. Hollingsworth, Jr.; and the “operator or Manager” was Jim Brewer/V.C. Hollingsworth, Jr. The document was signed by V.C. Hollingsworth, Jr., and included a certification that the signor was authorized to give consent for the “beneficial reuse and land application of bioso-lids.”

The trial court conducted a hearing on the Brewers’ motion on December 16, 2004, and issued the order currently under review. In the order the trial court stated:

In this case, neither the Plaintiffs nor their attorneys obtained any documents or statements from the sludge-hauling companies or their employees, either before or after suit was filed, to indicate that sewage sludge was being spread on the BREWERS’ property. Neither the Plaintiffs nor their attorneys made any aerial surveillance of the BREWERS’ property before or after suit was filed. Plaintiffs deposed Walter Brewer on April 22, 2003, at which time he testified that at no time had sewage sludge ever been applied to the property owned by the BREWERS. At the hearing on summary judgment in this case in November 2003, the Plaintiffs could produce no documentation to refute Walter Brewer’s deposition testimony. At the hearing on the instant motions, Plaintiffs could only offer the affidavit of Molly Bowen, stating that she had seen sludge trucks entering the common point used by both the BREWERS and HOLL-INGSWORTH to access their respective properties.
Based on the foregoing, the Plaintiffs and their attorneys should have known either before or shortly after suit was filed that the allegations against the BREWERS were unfounded.

DISCUSSION

Section 57.105(1) provides for the award of attorney’s fees in any action:

[I]n which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

This court has held that “[a] finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record.” Mason v. Highlands County Bd. of County Comm’rs, 817 So.2d 922, 923 (Fla. 2d DCA 2002). It is also true that “courts have made clear that an award of fees may not be appropriate under section 57.105, even though the party seekng fees was successful in obtaining the dismissal of the action.” Read v. Taylor, 832 So.2d 219, 222 (Fla. 4th DCA 2002) (holding that the claims were not so completely lackng in factual or legal basis as to warrant an award of fees under section 57.105). In Cowgill v. Bank of America, 831 So.2d 241, 242 (Fla. 2d DCA 2002), this court reversed an award of fees under the 2000 version of section 57.105(1) because the “claim was arguably supported by material facts and then-existing law.”

The trial court’s finding that the Bowens “should have known either before or shortly after suit was filed that the allegations against the BREWERS were unfounded,” is not supported by the record. In makng its findings, the trial court overlooked what knowledge the Bowens actually had and instead concentrated on what the Bowens failed to do, both in the presuit stage and after suit was filed.

Making a presuit determination that a founded claim or defense exists, and against whom it exists, lies at the heart of section 57.105. The legislature has made it very clear, especially in recent amendments to the statute, that shooting first and asking questions later is unacceptable. Litigants must know, or through reasonable effort become able to know, that their claims and defenses are supportable by facts and have a basis in law. The statute does not give specific direction on how to meet these standards. Ultimately, that is left to the discretion of the trial judge.

In this case, we conclude that obtaining documents and statements from the sludge-hauling companies and conducting aerial surveillance were not indispensable presuit requirements. Such fact-gathering approaches have a high potential for futility or failure. More important, the trial court failed to take into consideration that the Bowens had the documents described above as well as Molly Bowen’s observations of the sludge truck activity before the suit was filed.

After suit was filed, an unfortunate set of circumstances followed. The Brewers immediately put the Bowens on notice that they were making a serious mistake. The Bowens pledged to the Brewers that if they were in error' by joining the Brewers in their suit, they would ultimately rectify the situation. The communication between counsel for the Brewers and counsel for the Bowens, at least on the surface, showed a sincere motive on each side’s part to get to the bottom of the matter quickly and then immediately fix what was not right. Unfortunately, each side had different and opposing ideas on how to go about doing that. The Bowens wanted expeditious fact gathering by either waiving or being flexible with the formal re-quireménts of discovery. The Brewers insisted on proceeding formally by strict adherence to the rules of discovery. The divergent approaches resulted in numerous court filings causing distractions, delay, and expense. Ultimately, neither side gained what each declared they had wanted — a shared knowledge of the actual truth.

While section 57.105 requires claimants to continuously evaluate the merits of their claims after suit is filed, here, regrettably, post-suit efforts got bogged down in fact-gathering quarrels. Walter Brewer’s deposition testimony was, to some extent, refuted by the documents described above and thus was legally insufficient to bring the Bowens to the “knew or should have known” juncture. Therefore, by the time the suit against the Brewers was dismissed at summary judgment, nothing new was added to support the Brewers’ section 57.105 claim.

Winning a motion for summary judgment does not conclusively prove a section 57.105 claim. Read, 832 So.2d at 222. If that were the standard, then every award of summary judgment would be followed by a section 57.105 motion. The trial court’s task at summary judgment hearings is separate and distinct from section 57.105 hearings. The former is a proceeding based on established facts. The latter is an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.

Molly Bowen’s statement was competent, substantial evidence, and that, together with the documentary evidence in the Bowens’ possession, does not support the trial court’s finding that the Bowens “knew or should have known” there were no facts to support their claim against the Brewers. The trial court not only failed to consider this documentary evidence, which is competent and substantial, but it also failed to acknowledge its existence. Finally, the actual reasons the trial court gave for granting the motion, the Bowens’ purported discovery failures, were either insufficient or unrealistic. Accordingly, we find that the trial court’s failure to consider all of the evidence in deciding to grant the section 57.105 motion was an abuse of discretion.

As stated in Read, “Florida favors access to the courts and has interpreted section 57.105 to provide a remedy only where the plaintiffs complaint is completely untenable.” Id. Accordingly we reverse the award of attorney’s fees to the Brewers under section 57.105 and deny their cross-appeal for expert witness fees. We affirm the cost award under section 57.041.

Affirmed in part; reversed in part.

SALCINES and WALLACE, JJ, Concur.

      . The attorneys appealing the trial court’s award of fees are Eric S. Giroux, Esq.; David Guest, Esq.; and Earthjustice Legal Defense Fund, Inc.

      . Hollingsworth is not subject to the trial court's order and is not involved in this appeal.

      . The reference by Mr. Brewer is apparently to Blue Septic Tank Service, Inc., one of the defendants in the trial court action.

      . While asking for statements or documents from parties doing business with someone the requesting party is about to sue could be fruitful, it is not likely to be productive. It is not much of a stretch for the sludge-hauling companies to deduce that they too are targets of a lawsuit by the party making the requests.

      . The cost of aerial surveillance with appropriately sophisticated spying equipment would be very high in comparison to the benefit of a likelihood of actually obtaining useful evidence.

      . Here it is not at all clear that there were no disputes of material fact and that summary judgment was appropriate, but that question is not before us.


text:
    Vincent CHARO, Appellant, v. James R. McDONOUGH, Secretary and the Florida Department of Corrections, Appellees.
    No. 1D06-2482.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2006.
    Vincent Charo, pro se, Appellant.
    Charlie Crist, Attorney General; Rosa Carson, General Counsel, Florida Department of Corrections, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 16, 2006, the Court has determined that the order on appeal is reviewable by motion filed pursuant to Florida Rule of Appellate Procedure 9.430 in the appellate proceeding that precipitated the order rather than by separate appeal. Wagner v. McDonough 930 So.2d 710, 711 (Fla. 1st DCA 2006). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. To the extent that the underlying appeal, 1D03-5378, was dismissed for failure to pay the appellate filing fee or to obtain an order of insolvency, this dismissal is without prejudice to seek reinstatement of that appeal.

WOLF, VAN NORTWICK, and BROWNING, JJ., concur.


text:
    In the Interest of B.C., a child. M.C., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D05-3833.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2006.
    Ingrid Anderson, Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Ap-pellee, Department of Children and Family Services.
    Patricia M. Propheter, Orlando, for Ap-pellee, Guardian ad Litem Program.
   SEALS, JAMES H., Associate Judge.

M.C., the father of B.C., appeals the trial court’s order adjudicating B.C. dependent as to him. We are asked to determine whether the trial court erred in finding prospective harm to one child based upon the sexual abuse of another child. We conclude there is a lack of competent, substantial evidence to support a finding of dependency and reverse the trial court’s adjudication of dependency.

M.C. is married to T.C. They are the natural parents of B.C., a three-year-old boy. T.C. is the natural mother of A.M., a daughter by a previous marriage. Both children resided together with M.C. and T.C. until the events leading to this proceeding. On June 15, 2004, when A.M. was about eleven years old, the Department of Children and Family Services (DCF) filed a petition seeking emergency shelter for the children based on allegations by A.M. that M.C. had sexually molested her. The shelter petition was granted.

On June 30, 2004, DCF filed its petition for dependency of both children. The petition alleged that both M.C. and T.C. were offending parents as to B.C. The petition alleged that M.C. sexually abused his stepdaughter, thus placing B.C. “under substantial risk or [sic] imminent threat of harm, abuse or neglect, within the meaning and intent of Chapter 39, Florida Statutes.” There were no allegations of actual abuse of B.C. T.C. consented to the adjudication of dependency as to both of her children. M.C. denied the allegations of abuse.

The trial court conducted hearings in September 2004 and June 2005 and rendered an order on July 12, 2005, adjudicating B.C. dependent as to his father, M.C. The order made the following finding:

Given there was no corroborating evidence to support these allegations, the Court must weigh the credibility of [A.M.] against [M.C.’s] credibility in assessing whether [M.C.] sexually molested his stepdaughter. In weighing this evidence, the Court finds that it is more likely than not that M.C. sexually abused [A.M.] in some manner.

The trial court heard the testimony of Dr. Robert Wright, a psychologist. Dr. Wright testified for DCF as an expert in the area of assessment and treatment of sex offenders. Dr. Wright had tested and evaluated M.C. and testified at length concerning the results of that evaluation. From his testimony, the trial court made the following findings to support its conclusion that DCF proved a nexus between the abuse of A.M. and the prospective abuse of B.C.:

Dr. Wright, the sexual abuse expert, testified that, assuming the father sexually abused [A.M.], there is substantial risk of imminent harm to [B.C.], based in large part, on the impulsive nature of pedophilia. In addition, the father has not sought any treatment in response to the alleged sexual abuse (admittedly because he denied it occurred).
The Court finds that the father’s conduct, and accompanying mental state, make it highly probable that, without intervention, the father will abuse or neglect another child.... Moreover, the father’s conduct, without any subsequent treatment, suggests behavior beyond his control and likely to continue.

The collective nexus findings suggest that M.C. has mental conditions that place B.C. at substantial risk of imminent sexual abuse unless M.C. receives sex offender treatment intervention. The trial court found additional support for the nexus in M.C.’s failure to seek treatment in response to the allegations of sexual abuse.

A determination of dependency is a mixed question of law and fact. See In re M.F., 770 So.2d 1189, 1192 (Fla.2000). Appellate courts must determine whether the trial court applied the correct law in making its decision and whether the decision is supported by competent, substantial evidence.

The law pertaining to prospective harm to one child by a parent based upon abuse, abandonment, or neglect committed against another child is well settled. In In re M.F., the Florida Supreme Court eschewed a per se rule that conviction of a sexual offense against one child was by itself sufficient evidence to support an adjudication of dependency as to other children. Instead, the court required additional proof that would establish a nexus between the prior abuse and prospective abuse of siblings. Id. at 1194. It said:

We conclude that the flexible approach ... rather than the per se rule is more consistent with the plain language of the Act.... While the commission of such an act may be highly relevant, it is not automatically dispositive of the issue of dependency. A court should instead focus on all circumstances surrounding the petition in each case.

Id.

Going further, the court, in a footnote, said:

For instance, in cases involving a parent’s prior sexual act on a different child, a court may consider the following: any similarity between the prior act and the pending case; the temporal proximity of the prior act to the pending case; any treatment received by the parent following the act; and the testimony (if appropriate) of professionals and experts.

Id. at 1194 n. 13.

In In re C.M., 844 So.2d 765, 766 (Fla. 2d DCA 2003), this court stated:

Children who have not been abused may be adjudicated dependent based on abuse inflicted upon their siblings; however, the evidence must demonstrate a nexus between the abuse and any prospective abuse of another sibling.... Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.

The facts of this case and the testimony of Dr. Wright presented the trial court with troubling and perplexing questions. The issue of whether the sexual abuse actually occurred was particularly difficult. It was a nightmarish “she said, he said” contest between two witnesses of questionable credibility over an issue of fact that carries extremely dangerous or adverse consequences should the fact finder believe the untruthful witness. The record supports a conclusion that A.M. had a motive to fabricate a false tale and had a poor reputation for veracity. Psychological tests performed by Dr. Wright suggested that M.C. had a tendency to externalize blame. The trial judge, without being specific, found that “it is more likely than not that [M.C.] sexually abused [A.M.] in some manner.” Although our task on this appeal is not to second guess the trial court’s finding of sexual abuse, the circumstances surrounding that decision play into the flexible approach to finding a nexus supportable by substantial, competent evidence.

In determining a nexus to B.C.’s dependency, the trial court did not look to or rely upon the evidence related to the sexual abuse events. Instead, the trial court based its findings entirely upon Dr. Wright’s testimony. Dr. Wright repeatedly said he did not rely on anyone’s version of what happened between A.M. and M.C. Furthermore, he had no opinion on whether or not the sexual abuse actually occurred. His opinions and recommendations were based entirely upon his evaluation of M.C. and family background information.

Upon close examination of Dr. Wright’s testimony, we conclude that his opinion, based on his evaluation, was that M.C. was not the kind of person who would commit a sex offense on a child. Dr. Wright’s psychological testing of M.C. disclosed no significant clinical psychopathy or mental disorders.

Dr. Wright testified that there are three pathways by which adults who sexually abuse a child may recidivate against another child: pedophilia, sociopathic behaviors, and impulsivity. He testified that he did not have any data to support a finding that M.C. is either a pedophile or a sociopath. On the matter of impulsivity, he found that most of the risk factors for child sexual abuse by impulsive act did not apply to M.C. (We note that many of the risk factors Dr. Wright mentioned were the same as those discussed in In re M.F. and In re C.M.) Dr. Wright mentioned that some risk factors were present, specifically M.C.’s tendency to externalize blame and his wife’s interest in “swinging.” However, Dr. Wright testified that swinging is an indicator of sexual promiscuity rather than sexual deviance.

Dr. Wright offered three opinions on the nexus issue, all based solely upon his evaluation. The first opinion was that M.C. did not have an emotional or mental health problem that would make it “highly probable” that he would sexually abuse his son. Second, the risk of sexual harm to B.C. was minimal. Third, whatever the risk was to B.C., it was not imminent,. Given the trial court’s total reliance upon Dr. Wright in making nexus findings, these opinions do not provide the competent, substantial evidence required to establish the abuse-dependency nexus.

What makes this case troubling at the appellate level is another opinion Dr. Wright offered. He was asked:

By Mr. Williams [attorney for DCF]: [I]f the Court makes a finding that [A.M.] was, in fact, a victim of sexual abuse by [M.C.], you believe that there is a substantial risk that if untreated, [M.C.] could commit an act on [sic] of sexual abuse against his own child, correct?
Dr. Wright: Correct.

This is a hypothetical question that asked Dr. Wright to assume that the sexual abuse actually happened. Given Dr. Wright’s statements, findings, and opinions from his evaluation, and given his repeated refusal to render an opinion on whether M.C. actually committed the offense, this expert opinion evidence is nothing more than a restatement of the per se rule our supreme court refused to accept as dispos-itive of the question of the dependency of one child based on the abuse of another. The mere fact that it surfaces as an expert opinion rather than a legal presumption does not change its legal effect in this case: B.C. is being adjudicated dependent because, and only because, the trial court concluded that B.C.’s father sexually abused B.C.’s half-sister.

The trial court’s finding of substantial risk of imminent harm to B.C. by M.C. based in large part on the impulsive nature of pedophilia was not supported by competent, substantial evidence. The trial court’s finding that M.C.’s conduct, and accompanying mental state, make it highly probable that, without intervention, the father will abuse or neglect another child is also not supported by competent, substantial evidence. All that is left standing is the per se rule disguised in expert testimony that sexual abuse of one child creates a substantial risk of abuse to another child. The findings in this case did not move the nexus-finding process in a linear fashion from abuse of A.M. to dependency of B.C. Instead, it went in a circle and wound up back at the beginning.

The trial court also found that M.C. failed to seek treatment. The trial court cited this “failure” in support of the adjudication of dependency. The failure to seek treatment while a disputed sexual abuse allegation is in litigation cannot be a nexus consideration because it puts the accused parent in a “no-win” situation at trial. If the parent seeks treatment, that fact may be used as an admission of culpability. If the parent refuses, one might conclude, as the trial court did here, that he or she poses a greater risk of imminent harm to other children. Having or not having sex offender treatment does not prove a nexus. What sex offender treatment professionals and their records say about the person treated and his or her potential or probability of recidivating is where the proof lies.

Finally, we note that Dr. Wright did not even recommend sexual offender treatment for M.C. Instead, Dr. Wright recommended a minimal intervention in the form of education about limits, values, and consequences. Therefore, the trial court’s finding that M.C. poses substantial risk to B.C. without sex offender treatment is unsupportable.

Accordingly, we conclude that the trial court’s finding of a nexus between the sexual abuse of A.M. and the adjudication of B.C. as a dependent child is not supported by competent, substantial evidence in the record. Absent the requisite nexus, we are required to reverse the trial court’s order of dependency.

Reversed.

SALCINES and WALLACE, JJ., Concur.

      . B.C. was two years, nine months old when he was removed from his parents’ custody. He was almost four years old when he was adjudicated dependent. He is described as a three-year-old for purposes of this opinion because that is the birthday nearest the date he left the custody of his parents.

      . The definition of a "child who is found to be dependent” in section 39.01(14)(f), Florida Statutes (2003), includes children found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.”

      . Florida Rule of Juvenile Procedure 8.260(a) requires all orders to be reduced to writing and they "shall contain specific findings of fact and conclusions of law.” The trial court’s order specifically recites what A.M. testified about but does not indicate whether the fact finder believed all or any part of it. The finding of fact merely states that sexual abuse occurred “in some manner.”

      . Such a finding suggests that the trial judge resolved this disputed issue of fact based upon the force and effect of the evidence as a whole and by a narrow preponderance. It does not suggest the findings were sustained by clear and convincing evidence. In pertinent part, Florida Rule of Juvenile Procedure 8.330(a) provides that "[i]f the court is of the opinion that the allegations have been sustained by clear and convincing evidence, it may enter an order so stating.”

      . E.g., low mental function, depression, anxiety, drug and alcohol addiction or abuse, and criminal history.

      . There was no evidence that M.C. and his wife engaged in swinging but that they had expressed an interest in looking into it. Incidentally, there was evidence that M.C. had watched pornography on the Internet, but that was not mentioned as an impulse-driving factor.

      . Dr. Wright's opinion about imminent risk came up in two contexts. First he opined that risk was not imminent because of the absence of risk factors. The second time it came up was in a response to a question by the court to which he answered by stating, "There was not enough information to determine something like [imminent risk].”


author: SILBERMAN, Judge.

text:
    Shea BATSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1037.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2006.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner And Sonya Roebuck Horbelt, Assistant Attorneys General, Tampa, for Appellee.
   SILBERMAN, Judge.

Shea Batson challenges the trial court’s revocation of his community control and probation in circuit court case numbers 01-CF-2300 and 01-CF-3466. In addition, Batson challenges the denial, in part, of his motion to correct his sentence in circuit court case number 01-CF-2300. We affirm in all respects, but we remand for the trial court to correct the revocation order in case number 01-CF-2300 to reflect the court’s revocation of Batson’s sex offender probation rather than community control.

Affirmed and remanded with directions.

CASANUEVA and STRINGER, JJ., Concur.


text:
    Richard Thomas WIMMER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4682.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2006.
    James Marion Moorman, Public Defender, and Andrea S. Manthorne, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Richard Thomas Wimmer appeals a judgment and sentence for felony DUI and driving while license suspended. We affirm the judgment and sentences without further comment, but remand for a correction of a scrivener’s error in the sentence for felony DUI. Although the trial court orally imposed a sentence of three years’ probation, a special condition of which was that Mr. Wimmer serve nine months of that term in jail, the written sentence reflects a sentence of nine months in jail followed by three years of probation.

Affirmed; sentence for felony DUI remanded to correct scrivener’s error.

ALTENBERND, DAVIS, and KELLY, JJ., Concur.


author: GRIFFIN, J.

text:
    S.V.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2681.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

We affirm the appealed disposition order in all respects except for the imposition of a $65 cost pursuant to section 939.185, Florida Statutes (2005). The supreme court recently decided V.K.E. v. State, 934 So.2d 1276 (Fla.2006), which the State acknowledges applies to this issue. We vacate the $65 cost imposed.

AFFIRMED; VACATE COST.

PALMER and LAWSON, JJ., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. K.M.H., a child, Appellee.
    No. 5D05-2904.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Caleb A. Bendix, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order granting KM.H.’s motion to suppress. Concluding that the trial court applied the wrong legal standard in granting KM.H.’s motion, we reverse.

K.M.H. was arrested after the car in which she was riding as a passenger was stopped by the police for an alleged traffic code violation. K.M.H. was arrested because, during the stop, the police officer detected the odor of burning cannabis emanating from the vehicle and, as a result, K.M.H. was searched and cannabis was discovered. K.M.H. was subsequently charged with possession of cannabis in an amount not more than 20 grams.

K.M.H. filed a motion to suppress the cannabis claiming that it was obtained as the result of an unlawful search and seizure. A hearing was held on K.M.H.’s motion.

At the hearing, Wendell Bradford, the arresting police officer, testified concerning the circumstances preceding the stop of KM.H.’s vehicle. He stated that the incident began when he was on patrol in his police car and he observed a Mazda pass him and come to a stop at a traffic-light. Bradford testified that he noticed that the rear vent window on the Mazda was knocked out. While Bradford was looking back at the vehicle, he observed the driver of the car open the driver’s side door, lean out, and throw something underneath the car. Bradford stated that it was a violation of the traffic code to open a car door in traffic. Bradford also testified that it was a violation of the traffic code to throw fitter outside the vehicle. Bradford stated that he made a U-turn, got behind the Mazda, and did a computer check on the vehicle’s tag number. The computer check revealed that the vehicle was not stolen; however, based on his observation that the driver had violated the traffic code by littering and opening his door in traffic, Bradford decided to perform a traffic stop. When he approached the vehicle, Bradford smelled burning cannabis and observed a small amount of green leafy substance on the driver’s lower body, his leg area, and the seat area. Bradford also observed a green leafy substance on K.M.H.’s pants and on her car seat. K.M.H. was searched and ultimately arrested for possession of cannabis.

Upon consideration of the testimony presented at the hearing, the trial court concluded that suppression of the cannabis was warranted because there was no probable cause to support Bradford’s decision to turn around and come up behind the Mazda. The State challenges the trial court’s ruling, arguing that the trial court applied the wrong legal standard. We agree.

The correct test to be applied when determining the validity of a traffic stop is whether the particular officer who initiated the stop possessed an objectively reasonable basis for making the stop. Dobrin v. Florida Dept. of Highway Safety and Motor Vehicles, 874 So.2d 1171 (Fla.2004). Here, the trial court failed to apply the proper legal standard in determining whether Bradford possessed an objectively reasonable suspicion to stop the Mazda, ruling instead on whether the officer had a legal basis to follow the vehicle.

Accordingly, we reverse the trial court’s order granting KM.H.’s motion to suppress and remand this matter to the trial court for reconsideration of whether Bradford possessed an objectively reasonable basis for making the traffic stop.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ„ concur.

      . See §§ 893.03(l)(c)7, 893.13(6)(a), (b), Fla. Stat. (2004).


text:
    PATRICIA WEINGARTEN ASSOCIATES, INC., Appellant, v. Kim TAYLOR, et al., Appellees.
    No. 5D05-3185.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Peter N. Price of Peter N. Price, P.A., Hollywood, for Appellant.
    Garry D. Adel of Blanchard, Merriam, Adel Kirkland, P.A., Ocala, for Appellees.
   PER CURIAM.

The Appellant in this case, Patricia Weingarten Associates, Inc., is the same as the appellant in Patricia Weingarten Associates, Inc. v. Jocalbro, Inc., 932 So.2d 587 (Fla. 5th DCA 2006). On substantively identical facts, the Appellant raises the same issue raised in the Jocalbro appeal. For the same reason, we reverse the judgment in this case and remand to the trial court for reconsideration in light of the recent United States Supreme Court opinion in Jones v. Flowers, — U.S. -, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).

REVERSED AND REMANDED for further proceedings.

MONACO, TORPY, and LAWSON, JJ., concur.


text:
    Francisco Arismendy CABA, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3242.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

The trial court properly denied appellant, Francisco Arismendy Caba’s [“Caba”], motion to suppress. As officers were sitting in an area known for being an “open area drug market,” they observed someone drop Caba off, where he paced as if waiting for someone to approach. This behavior was consistent with previous drug transactions observed by officers. One of the officers heard Caba speaking to a resident, who told Caba to go away, that he was not a drug dealer. A second officer heard Caba ask, “Do you have anything?,” or say, “I’m looking for something,” or words to that effect. The totality of these circumstances supported a reasonable suspicion on the part of the officers that Caba was soliciting the sale of drugs.

Having a well-founded suspicion that Caba wanted to buy some form of controlled substance from a resident, the officers were entitled to approach Caba to investigate. They were also entitled to seize the crack pipe that Caba quickly “abandoned” by taking it out of his pocket and throwing it into the street. Having retrieved an item they recognized as a crack pipe, the officers then had probable cause to arrest Caba and to search him incident to his arrest.

AFFIRMED.

PLEUS, C.J. and LAWSON, J., concur.


text:
    ELWIN ENTERPRISES, INC., etc., Petitioner, v. HERNANDO COUNTY BOARD OF COUNTY COMMISSIONERS, etc., et al., Respondent.
    No. 5D06-716.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Frank A. Miller, of Caglianone, Miller & Anthony, P.A., Brooksville, for Petitioner.
    T. Patton Youngblood, Jr., of T. Patton Youngblood, Jr., P.A., Tampa, for Respondent, Shirley Johnson.

      Douglas T. Noah, of Dean, Ringers, Morgan & Lawton, P.A., for Respondent, Hernando County Board of County Commissioners.
   PER CURIAM.

Elwin Enterprises, Inc., d/b/a Detail Cleaning Services, a defendant in the proceedings below, seeks certiorari review of the trial court’s order denying, on rehearing, its motion to dismiss filed pursuant to Florida Rule of Civil Procedure 1.0700’). That rule requires service of the initial process and pleading on a defendant to be made within 120 days after the filing of the initial pleading directed to that defendant, allows the court to extend the time for service, and authorizes certain actions by the court in the event of untimely service. Elwin argues that the court departed from the essential requirements of law when it denied its motion to dismiss following numerous extensions of time that were allowed by the trial court before service was effectuated. Although we can appreciate the position that Elwin is in, we cannot conclude, based on the current wording of the rule and the unique facts of this case, that the trial court departed from the essential requirements of law.

We do not find that the high standard for certiorari relief has been met. However, we remind Respondent’s counsel of his professional responsibility to conduct litigation in a manner to assure the just, speedy and inexpensive determination of every action. See The Florida Bar, Ideals and Goals of Professionalism, Std. 4 (2005 ed.). Likewise, we remind the trial court of its obligation to “take charge of all cases at an early stage in the litigation and ... control the progress of the case thereafter until the case is determined.” Fla. R. Jud. Admin. 2.085(b).

CERTIORARI DENIED.

PALMER, ORFINGER and LAWSON, JJ., concur.

      . Florida Rule of Civil Procedure 1.070(j) provides:
      (j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).


text:
    M.D.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3330.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We strike the assessment of the fine set forth in section 939.185, Florida Statutes (2005), as it has no application in juvenile proceedings. See V.K.E. v. State, 934 So.2d 1276 (Fla. 2006). We affirm the trial court’s order denying suppression of M.D.J.’s statement to law enforcement as we agree that M.D.J. was not the subject of a custodial interrogation.

AFFIRMED; FINE STRICKEN.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Carlos JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2319.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Carlos Jackson, Cocoa, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Because orders denying motions to mitigate brought pursuant to rule 3.800(c), Florida Rules of Criminal Procedure, are not appealable, we dismiss this appeal. See Davidson v. State, 701 So.2d 123 (Fla. 5th DCA 1997).

DISMISSED.

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


text:
    Jerry L. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2519.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Jerry L. Green, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The appellant, Jerry L. Green, appeals the summary denial of his rule 3.850 motion for post-conviction relief with respect to his 1998 conviction of burglary of a dwelling with a battery. Because his motion was filed well beyond the two-year period prescribed by rule 3.850(b), Florida Rules of Criminal Procedure, and because no sufficient exception to the two-year requirement has been cited to us, we affirm.

AFFIRMED.

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    Calvin M. SLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2763.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Calvin Sledge, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (explaining that if defendant does not receive concurrent sentences on multiple charges, he is not entitled to have his jail time credit “pyramided” by being given credit on each sentence for the time he spends in jail awaiting disposition).

AFFIRMED.

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Richard SPENCE, Appellants, v. Christine H. SPENCE, Appellee.
    No. 5D06-1924.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Richard Spence, Winter Springs, pro se.
    Marshal D. Morgan, Levin & Morgan, Longwood, for Appellee.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to the Appellee’s confession of error, the Amended Order on Respondent’s Prayers for Temporary Relief in Counter Petition and Amended Income Deduction Order are reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

SAWAYA, MONACO, and EVANDER, JJ., concur.


author: SAWAYA, J.

text:
    Ramona ROBINSON, Appellant, v. Michael A. WEILAND, et al., Appellees.
    No. 5D05-2380.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellant.
    Anthony N. Brimo of Jacoby, Brimo, Figueroa, & Chase, Melbourne, for Appel-lee Michael A. Weiland.
    Erika McBryde, of Frese, Hansen, Anderson, Anderson, Roche, Heuston & Whitehead, P.A., Melbourne, for Appellee John M. Cetrano.
    No Appearance for other Appellees.
   SAWAYA, J.

This appeal involves three individuals competing for the designation “annuity beneficiary” in consolidated interpleader actions filed by two annuity companies seeking a judicial decree determining who is entitled to the proceeds of the two annuities purchased by the decedent, John S. Cetrano, prior to his death. In their respective pleadings filed in the underlying action, John M. Cetrano, son of the decedent, claimed 60% and Michael Weiland, a female friend of the decedent, claimed 40% of the total proceeds based on change of beneficiary forms purportedly executed by the decedent prior to his death. Ramona Robinson, the sister of the decedent, claims 100% of the total proceeds, contending that the purported change of beneficiary forms are invalid to remove her as the preexisting beneficiary of both annuities because the forms were not executed by the decedent or, in the alternative, if they were executed by the decedent, they were the product of undue influence by Weiland over the decedent.

The trial court, after considering the testimony of the parties and the evidence they submitted, requested written closing arguments. Before a final judgment was rendered, Robinson filed a Motion to Reopen Trial For Newly Discovered Evidence, requesting the court to hear additional evidence showing that a fraud had been committed on the court as Robinson had located Weiland’s former roommate, who would testify that Weiland had filled out blank change of beneficiary forms to benefit herself. The court refused and rendered final judgment in favor of Wei-land and Cetrano, finding that the change of beneficiary forms were valid. Robinson then filed a Motion for Rehearing, New Trial, or Evidentiary Hearing, which the trial court denied. On appeal, Robinson raises several issues, two of which we will discuss: (1) the final judgment was contrary to the manifest weight of the evidence; and (2) the court committed reversible error in summarily denying Robinson’s motion to reopen the evidence to consider her colorable claim of fraud on the court without an evidentiary hearing.

It is not necessary to discuss in detail the facts and circumstances of this case or the testimony presented by each party in order to resolve the first issue. Suffice it to say that while much conflicting and self-serving testimony was offered by each claimant in an attempt to secure the annuity proceeds, their testimony was consistent in their description of the decedent. He was a surly old curmudgeon, rigid and harsh in his treatment of others, inexorable in his opinions and beliefs, and a person not easily cajoled or persuaded to do anything he did not want to do. Although not flattering, this testimony reflects the true nature of the relationships the decedent had with each party and reveals that the decedent was not a man to be easily duped or unduly influenced by anyone. Based on this and other evidence presented by Weiland and Cetrano, which the trial court apparently found to be credible, we believe that reasonable individuals may differ regarding the trial court’s decision to deny Robinson a new trial based on the asserted ground that the judgment is against the manifest weight of the evidence. Therefore, we are unable to con-elude that the trial court abused its discretion in making that decision. Although Robinson voices her indignation that the trial judge could find in favor of Weiland and Cetrano in light of the evidence that she presented, and while our reading of the trial transcripts leads us to question the trial judge’s findings and the judgment he rendered, we must and do recognize that it was the trial judge who observed the witnesses testify, and he was in the better position to judge their credibility and weigh them testimony together with all of the other evidence presented. It is not for us to reweigh that which was presented to, and considered by, the trial judge as the finder of fact. Because we are unable to conclude that the trial court abused its discretion in not granting Robinson a new trial based on her argument that the judgment is against the manifest weight of the evidence, we must affirm as to this issue.

The issue whether the trial court erred in refusing to reopen the case to allow additional evidence is much more problematic and troubling. Robinson argues that the trial court committed reversible error by failing to allow her to present Sally Adams’ testimony, particularly where the motion to reopen was made well before the final judgment was rendered and it was Weiland’s own false answer to an interrogatory that prevented Robinson from locating Adams in time for the trial. Adams was the only person other than Weiland who had information about the completion of the beneficiary change forms and her testimony, if believed, proved that Weiland had committed a fraud on the court.

A paralegal employed by Robinson’s attorney explained, in an affidavit, how Adams was discovered as a witness and how Weiland failed to truthfully disclose information relative to her prior address. The paralegal states that four months pri- or to the October 2004 trial, she spoke with Weiland’s ex-husband, who told her that a Flo McGrath and Sally Adams might have information that was pertinent. Weiland, McGrath, and Adams previously worked together. Although the ex-husband did not know where either McGrath or Adams lived currently, he knew that McGrath was working at a 7-Eleven on Wickham Road. Three days after obtaining this information, Robinson’s attorney propounded interrogatories to Weiland asking for current or prior addresses for Adams. Weiland answered that she did not know of any.

The paralegal eventually located McGrath at a 7-Eleven, and McGrath stated that she thought Adams was working at a bar in Orlando, adding that Adams used to live with Weiland. This was the first indication that Robinson had of the roommate relationship. On October 22, three days before trial, the paralegal conducted an unsuccessful Internet search for Adams. On December 17, almost two months post-trial, the paralegal was training on a new Internet locator service and learned of a new way to trace persons. Using Weiland’s address (where Adams used to live), the paralegal traced Adams to a Sally Bassham in Tennessee. Because no phone number was provided, the paralegal wrote to the address asking that the woman contact her if she was the correct Sally Adams. On January 9, 2005, Sally Adams called from her current residence in California and left a voice mail message on the firm telephone. The paralegal returned the call the next day. Adams subsequently executed an affidavit wherein she stated that she knew the decedent and had visited him in the hospital with Weiland in February 2002; that the decedent was clear that he did not want Cetrano to have any part of the annuities; and that the decedent never indicated, in her presence, that he wanted Weiland to have them. Adams’ affidavit also stated that the decedent had signed the forms in March 2002, without them being completed, and that Weiland brought the uncompleted forms back to their residence and left them on Weiland’s desk for several weeks. Her affidavit then states:

After the forms were at the house for a number of weeks, I personally was present when she completed the annuity beneficiary change forms. She told me she was including herself as a 40% beneficiary because she did not want to appear to be too greedy.... The forms were definitely not completed in the presence of John S. Cetrano [the decedent] and were not placed in their envelopes for mailing by John S. Cetrano; Michael Weiland filled them out at 1711 Joshua Drive, NE, Palm Bay, Florida and mailed them many weeks after she first had possession of the forms.

Armed with this information, Robinson’s attorney filed a Motion to Reopen Trial For Newly Discovered Evidence so he could have Adams testify. The trial court summarily denied the motion on February 16, 2005, and the final judgment in favor of Weiland and Cetrano was rendered March 4, 2005.

Robinson argues that Weiland actively concealed the fact that she and Adams had been roommates during the critical time frame, pointing out that even when Wei-land testified to who was present during her visits with the decedent, Weiland had failed to list Adams, yet Adams specifically stated in her affidavit that she had visited the decedent in the hospital with Weiland in February 2002. Too, when Weiland testified that she had put the decedent’s wife’s jewelry in a safety-deposit box using the account of a girlfriend to acquire the box as Weiland had no bank account, Wei-land failed to name the girlfriend. It turns out that that girlfriend was Adams and Adams and Weiland were roommates at that time. Thus, Robinson alleges, Welland’s fraud is both intrinsic, in that she apparently committed perjury in the trial, and extrinsic, in that her answer to the interrogatory concealed the fact that Adams had been her roommate during the pertinent time period. The fact that the two had been roommates during the pertinent time frame made Adams all the more critical to interview, yet Weiland stonewalled this effort. Robinson asserts that it was error to deny her motion to reopen the case to present the testimony of Adams.

The courts consistently agree that the trial court has discretion to grant a motion to reopen a case for presentation of additional evidence after the parties have rested and even after granting a motion for directed verdict for a party. See Newman v. Brecher, 887 So.2d 384 (Fla. 4th DCA 2004), review denied, 911 So.2d 792 (Fla.2005); Silber v. Cn’R Indus. of Jacksonville, Inc., 526 So.2d 974, 978 (Fla. 1st DCA 1988) (citing Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549 (Fla.1951); Dees v. State, 357 So.2d 491 (Fla. 1st DCA 1978); Thrifty Super Mkt., Inc. v. Kitchener, 221 So.2d 500 (Fla. 3d DCA 1969)); Gallagher v. L.K. Rest. & Motels, Inc., 481 So.2d 562 (Fla. 5th DCA 1986). Factors the trial court should consider in determining whether to reopen the case to allow presentation of additional evidence include whether the opposing party will be unfairly prejudiced and whether it will serve the best interests of justice. Amador v. Amador, 796 So.2d 1212 (Fla. 3d DCA 2001); Hernandez v. Cacciamani Dev. Co., 698 So.2d 927 (Fla. 3d DCA 1997); Silber; Bieley v. Bieley, 398 So.2d 932 (Fla. 3d DCA), review denied, 411 So.2d 380 (Fla.1981); Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975); see also Register v. State, 718 So.2d 350 (Fla. 5th DCA 1998).

Because the trial court summarily denied Robinson’s motion, we are unable to determine why the trial court made that decision or what factors, if any, the trial court considered. Moreover, given the allegations of fraud made by Robinson to support her motion, we think an evidentia-ry hearing was essential for the trial court to properly determine whether to grant the request to present the testimony of Adams. See Robinson v. Kalmanson, 882 So.2d 1086, 1088 (Fla. 5th DCA 2004) (“A court can seldom determine the presence or absence of fraud without a trial or evidentiary proceeding.”).

After the final judgment was entered, Robinson filed her Motion for Rehearing, New Trial, or Evidentiary Hearing, pursuant to rule 1.530, Florida Rules of Civil Procedure, once again alleging fraud as a basis for relief. Cetrano and Weiland argue that Robinson failed to demonstrate the trial court abused its discretion in denying the motion, primarily arguing cases discussing motions for relief from judgment made pursuant to rule 1.540, Florida Rules of Civil Procedure. This court and others have held that if a party files a motion pursuant to rule 1.540(b)(3), pleads fraud or misrepresentation with particularity, and shows how that fraud or misrepresentation affected the judgment, the trial court is required to conduct an evidentiary hearing to determine whether the motion should be granted. See Seal v. Brown, 801 So.2d 993, 994-95 (Fla. 1st DCA 2001); St. Surin v. St. Surin, 684 So.2d 243, 244 (Fla. 2d DCA 1996); Estate of Willis v. Gaffney, 677 So.2d 949 (Fla. 2d DCA 1996); Dynasty Exp. Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996); Townsend v. Lane, 659 So.2d 720 (Fla. 5th DCA 1995); S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) (“[W]here the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”); Kidder v. Hess, 481 So.2d 984, 986 (Fla. 5th DCA 1986); Stella v. Stella, 418 So.2d 1029 (Fla. 4th DCA 1982); see also Robinson. Moreover, the courts have held that the hearing requirement applies when fraud is asserted as a grounds for relief under either rule 1.530 or 1.540, Florida Rules of Civil Procedure. See Stella. The motion filed by Robinson sufficiently alleges fraud and demonstrates how it affected the judgment, thereby satisfying the requirement for an evidentiary hearing under either rule 1.530 or 1.540. Therefore, we reject the arguments advanced by Cetrano and Weiland.

We conclude that Robinson was entitled to an evidentiary hearing based on the motion she filed prior to entry of final judgment and the motion she filed thereafter. We, therefore, reverse the order summarily denying Robinson’s Motion to Reopen Trial For Newly Discovered Evidence and her Motion for Rehearing, New Trial, or Evidentiary Hearing and remand for an evidentiary hearing. Should the trial court determine that fraud occurred as Robinson alleged, we believe that a new trial would be warranted.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ., concur.

      . "Michael” is the correct name of the decedent's female friend, but the parties refer to her as "Weiland" and so shall we.

      . The other issues raised by Robinson are: (1) the original Sun Life annuity change form is not effective because it was never received by Sun Life; (2) the G.E. annuity change form was not effective because it was not made during John S.'s lifetime; (3) the court erred in excluding evidence that Weiland had been terminated from her employment for theft; and (4) the trial court's delay in ruling was excessive and resulted in a judgment contrary to the evidence. As to these issues, we affirm without further discussion.

        . See Baptist Mem’l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980) ("The discretionary power to grant or deny a motion for new trial is given to the trial judge because of his direct and superior vantage point.... In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.”); Harlan Bakeries, Inc. v. Snow, 884 So.2d 336, 340 (Fla. 2d DCA 2004) ("For a verdict to be against the manifest weight of the evidence, so as to warrant a new trial, the evidence must be clear, obvious, and indisputable; where there is conflicting evidence, the weight to be given that evidence is within the province of the jury.”); Phillips Buick-Pontiac-GMC, Inc. v. Dallon, 602 So.2d 594, 596 (Fla. 5th DCA) (holding that a verdict is against the manifest weight of the evidence when the evidence is "clear, obvious, and indisputable”), review denied, 613 So.2d 2 (Fla.1992); Jones v. Stevenson, 598 So.2d 219 (Fla. 5th DCA 1992) (same); Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1211 (Fla.1978).

        . See Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999); Smith v. Brown, 525 So.2d 868, 870 (Fla.1988); Baptist Mem'l Hosp., Inc.; Hahn v. Medeiros, 858 So.2d 1242 (Fla. 5th DCA 2003); see also Southwin, Inc. v. Verde, 806 So.2d 586, 587 (Fla. 3d DCA 2002) (“The standard of review for the denial of a motion for new trial is whether or not the trial court abused its discretion.”); Reid v. Med. & Prof'l Mgmt. Consultants, Inc., 744 So.2d 1116 (Fla. 1st DCA 1999) (holding that that the trial court did not abuse its discretion in denying a motion for new trial based on the grounds the verdict was against the manifest weight of the evidence); Roach v. CSX Transp., Inc., 598 So.2d 246, 249 (Fla. 1st DCA 1992) (holding that trial court did not abuse its discretion in denying motion for new trial).

      . See Brown, 749 So.2d at 497; Smith, 525 So.2d at 870; Bell; Hahn; see also Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 643 (Fla. 5th DCA 2005) ("We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact. The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review.”).

      . Brown; Smith; Hahn.

      . We note that although Robinson cited rule 1.540 in her motion to reopen, she primarily argued that the motion was made prior to entry of final judgment as a matter of trial procedure. We believe that her cite to the rule was an alternative argument. As we will explain, under either argument Robinson was entitled to an evidentiary hearing.


text:
    Tammy Marie HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2989.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    Brett M. Waronicki of Smith, Akins & Associates, P.A., Stuart, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898 (Fla.1979).

STEVENSON, C.J., KLEIN and SHAHOOD, JJ., concur.


author: STONE, J.

text:
    Jose COLLAZO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2782.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Collazo’s conviction of third-degree murder with a firearm, but reverse the thirty year prison sentence imposed and remand for re-sentencing.

Collazo was charged with second-degree murder with a firearm; the information alleged that during the commission of the offense, he possessed a firearm, discharged it, and as a result of the discharge, the victim died. The jury was also instructed on the underlying felony of aggravated assault.

In imposing sentence, the court stated that it was imposing the thirty year sentence as mandatory under section 775.087(2), Florida Statutes, (10-20-life law) for a first-degree felony.

Florida Statutes Section 782.04, Murder, provides, in pertinent part:

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than ... is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 782.04(4), Fla. Stat. (2005) (emphasis added).

Florida Statutes section 775.087, Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence, provides, in part:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree. (2)(a)l. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
3. Any person who is convicted of a felony or attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” ... and, as a result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(1), (2)(a)l., 3., Fla. Stat. (2005).

In Osorio v. State, 746 So.2d 490, 491 (Fla. 2d DCA 1999), the appellant was charged with first-degree murder; the information alleged the appellant killed the victim by “shooting him with a firearm.” The jury was instructed on the lesser-included offense of third-degree (felony) murder, based on the underlying felony of aggravated assault. The trial court classified the conviction as a first-degree felony, and the Second District reversed:

We recognize it is possible to commit a third-degree murder without a weapon or firearm. However, the information and the jury instruction in this case caused the use of a firearm to be an essential element of the offense. Under these circumstances, the reclassification was error. See Gonzalez v. State, 585 So.2d 932 (Fla.1991); Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989).

Id. See also Rodriguez v. State, 650 So.2d 1111 (Fla. 2d DCA 1995) (holding reclassification impermissible where underlying felony of attempted third-degree murder with a firearm was aggravated assault, and aggravated assault includes the use of a deadly weapon as a necessary element).

In this case, the discharge of the firearm was charged to be the cause of death of the victim, and the jury was instructed on aggravated assault under the third-degree murder charge, which required the use of a deadly weapon. Consequently, under Osorio and Rodriguez, the use of a firearm was an essential element of the offense, and the trial court erred in reclassifying under section 775.087(1). We have considered Stoute v. State, 915 So.2d 1245 (Fla. 4th DCA 2005), and deem it inapposite.

Notwithstanding that the trial court in this case'imposed the thirty year sentence based on the erroneous reclassification of the conviction to a first-degree felony, we recognize that this sentence would have also been appropriate under section 775.087(2)(a)3., as a permissible discretionary sentence between twenty-five years to life. Therefore, on remand, the trial court is not restricted from re-imposing a thirty year sentence.

We remand for the trial court to properly classify the conviction as a second-degree felony and re-sentence based on section 775.087(2)(a)3.

As to all other issues raised, we find no reversible error or abuse of discretion.

STEVENSON, C.J. and POLEN, J, concur.


text:
    DeAngelo Lavander FAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2694.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

As the state concedes, appellant was improperly adjudicated guilty of both attempted first degree murder and attempted felony murder. See Jackson v. State, 868 So.2d 1290 (Fla. 4th DCA 2004). We reverse the judgment and remand to the circuit court to vacate one of the convictions. See Deangelo v. State, 863 So.2d 374 (Fla. 1st DCA 2003).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Imran HUSSAIN, Appellee.
    No. 4D05-3395.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005).

STONE, SHAHOOD and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    Carlee MURPHY, Appellant, v. SOUTHERN MUTUAL MANAGEMENT CORP., d/b/a Ocean Grille, Appellee.
    No. 4D05-4029.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Kenneth D. Cooper, Fort Lauderdale, for appellant.
    Doreen E. Lasch of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schaefer, P.A., Hollywood, for appellee.
   KLEIN, J.

We withdraw our previous opinion filed on July 12, 2006 and replace it with this opinion.

Appellant plaintiff was injured by a drunk driver and sued the bar where he had consumed alcohol before causing the accident. The trial court granted the bar’s motion for summary judgment, but we reverse.

Around 1:00 p.m. on April 21, 2000, James Centlivre drove his car onto the sidewalk and injured plaintiff. Two blood samples showed blood alcohol levels of .31 and .30, more than three times the legal limit for intoxication. Plaintiff sued the bar where Centlivre had started drinking at 9:00 a.m. that morning, alleging a violation of section 768.125, Florida Statutes (2000), which provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury ..., except that a person who willfully ... sells or furnishes alcoholic beverages to a person ... habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such ... person.

Plaintiffs complaint alleged that the bar employees knew that Centlivre was an alcoholic and had served him drinks that morning despite having that knowledge.

Centlivre testified in his deposition that he drank alcoholic beverages at this bar once or twice a week for nine years prior to the accident, and the bartender testified that on the day of the accident he had served Centlivre an ice tea sized glass of scotch around 9:00 a.m. Centlivre also testified that he left the bar around two hours later, at 11:00 a.m., and drove to the Riverside Hotel, fifteen minutes away, where the hotel refused to sell him more alcoholic beverages because of his intoxicated state. The plaintiff argues that if the Riverside Hotel had refused to serve him fifteen minutes after he left the Ocean Grille, the employees at the Ocean Grille must have known Centlivre was intoxicated too.

In Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042 (Fla.1991), our supreme court stated that proof that a bar served an individual a substantial amount of alcohol on multiple occasions would be evidence from which a jury could determine that the vendor had sufficient knowledge to have violated section 768.125. See also Sabo v. Shamrock Commc’n, Inc., 566 So.2d 267 (Fla. 5th DCA 1990). Under these cases there were issues of fact as to the violation of the statute which precluded a summary judgment.

Reversed.

WARNER and GROSS, JJ., concur.


text:
    Billy Earl BANKS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4197.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Billy Earl Banks, Sr., timely appeals his convictions for ten (10) counts of rape of a female under ten (10) years of age, in violation of section 794.01, Florida Statutes (1965-1971). Appellant claims that the court abused its discretion in denying his seventh motion for continuance, made because his memory expert could not be at trial to testify. There is no record of what the expert’s testimony would be, other than he was to testify on the effect of time on memory in this ease. Nothing in the record shows that this testimony would have been admissible at trial in any event. Considering the factors this court adopted in D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003), to determine whether the trial court abused its discretion in denying a defense motion for continuance, we conclude that the court did not abuse its discretion.

Appellant also contends that some of his convictions violate double jeopardy protections. The state concedes that the manner in which appellant was charged in the information creates a double jeopardy violation as to counts seven, eight, and ten. We therefore reverse and remand to vacate his convictions and sentences with respect to those counts. In all other respects, appellant’s convictions and sentences are affirmed.

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Keith TRIBBLE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-2092.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Keith Tribble, San Diego, CA, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra Fried, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

We grant this petition for belated appeal for the following reasons. On January 13, 2006, the trial court denied petitioner’s pro se motions which had sought postconviction relief and additional jail credit. On February 6, 2006, petitioner sent a letter to the trial court which stated, “I appeal. But I don’t know who to appeal to because no-one has given me this information.” The letter went on to request additional time to appeal the court’s order. The trial court denied the motion finding it did not have jurisdiction to grant the relief requested.

The jurisdiction of this court to review final orders of the trial court is “invoked by filing 2 copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.” Fla. R.App. P. 9.110(b). Rule 9.110(d) requires that the notice of appeal be “substantially in the form proscribed by rule 9.900(a).” Defects in form of a notice of appeal or failure to file fees or additional copies of the notice, however, are not jurisdictional. See Fla. R.App. P. 9.040(d) & (h). The court is permitted to “disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.” Fla. R.App. P. 9.040(d). Further, “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Fla. R.App. P. 9.040(c).

Here, petitioner should have filed a notice of appeal with the clerk of the lower tribunal and did not need to ask for an “extension of time” from the trial court judge to do so. Pro se pleadings, however, should be given liberal construction. Willis v. State, 840 So.2d 1135, 1136 (Fla. 4th DCA 2003). The trial court should have treated petitioner’s February 6, 2006 letter, which clearly expressed his desire to appeal, as his notice of appeal from the January 13, 2006 order.

Petition Granted.

GUNTHER, SHAHOOD and MAY, JJ„ concur.


text:
    John Martin LA VALLATA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1396.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979). However, we strike the “addendum final judgment for fines, fees, costs & additional charges,” which was entered on March 27, 2006, after the trial court lost jurisdiction due to the appellant’s timely filing of the notice of appeal, without prejudice to reimposing said judgment after jurisdiction returns to the trial court upon issuance of this court’s mandate.

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


author: WARNER, J.

text:
    William John BRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2252.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s sentence for violation of probation and conclude that the trial court’s oral pronouncement was unambiguous that appellant’s sentence was forty-eight months additional prison time after considering credit for time served in prison prior to the violation of probation. Although there was a scrivener’s error in reducing this pronouncement to writing, the oral pronouncement controls over the written sentence. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003). We therefore affirm but remand to correct the written sentence to reflect the oral pronouncement. Before correcting the sentence, the court will need to determine the exact credit for time served.

KLEIN and GROSS, JJ., concur.