author: ORFINGER, J.

text:
    Bertram L. CAPRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4154.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Bertram L. Capron appeals his convictions of two counts of lewd and lascivious battery (section 800.04(4)(a), Florida Statutes (2004)), one count of lewd and lascivious conduct (section 800.04(6)(b)), one count of lewd and lascivious molestation (section 800.04(5)(c)(2)), and one count of lewd and lascivious exhibition (section 800.04(7)(c)), as a result of the State charging him with having sexual activity with M.W., a fifteen-year-old girl. On appeal, Mr. Capron contends that the State committed fundamental error during its closing argument to the jury, and that several of his convictions are barred by double jeopardy.

The charges against Mr. Capron arose after he spent a weekend in a motel with M.W. According to M.W., during the course of the weekend, Mr. Capron engaged in sexual activity with her and in her presence. The jury found Mr. Capron guilty on all charges and he was sentenced to concurrent terms of eighteen years in prison on each charge, except for a five-year term on lewd and lascivious exhibition.

Mr. Capron first argues that he is entitled to a new trial because the State’s improper and prejudicial comments in the closing arguments amounted to fundamental error. Mr. Capron asserts that the State’s closing arguments were riddled with improper comparisons to the O.J. Simpson case, and the prosecutor’s personal opinion regarding Mr. Capron’s guilt as well as improper statements that bolstered the victim’s testimony. The State responds that its closing arguments were fair comments on the evidence and made to rebut arguments put forth during Mr. Capron’s closing. The State contends that none of the statements were improper and certainly did not rise to the level of fundamental error.

All trial errors (except those constituting fundamental error), including improper comments during closing argument, must be preserved for appeal by making a contemporaneous objection. Pedroza v. State, 773 So.2d 639, 640-41 (Fla. 5th DCA 2000). If a party makes a contemporaneous objection to an improper comment that is sustained by the trial judge, the party must request a curative instruction or move for mistrial if he or she wishes to preserve the objection for appellate review. Id. at 641. In the present case, Mr. Capron admits that his counsel did not preserve the alleged errors for appeal. Consequently, in order to be afforded relief on appeal, the challenged comments must be so prejudicial as to constitute fundamental error. See Randolph v. State, 853 So.2d 1051, 1067 (Fla.2003); Street v. State, 636 So.2d 1297, 1303 (Fla.1994); Fuller v. State, 540 So.2d 182, 184 (Fla. 5th DCA 1989). This Court has held that fundamental error in closing argument occurs when the prejudicial conduct, in its collective import, is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury. See Caraballo v. State, 762 So.2d 542, 546-47 (Fla. 5th DCA 2000); Jones v. State, 666 So.2d 995, 997 (Fla. 5th DCA 1996).

Having considered the State’s arguments carefully, we do not conclude that fundamental error occurred. Indeed, the only comments that are close were the State’s two brief references to the O.J. Simpson case. These remarks, while ill-advised and unnecessary, did not characterize Mr. Capron as O.J. Simpson or “improperly appeal to juror sense of community by improperly appealing to their emotions, bias and fears in an attempt to improperly prejudice them against [Mr. Capron].” Cf. DeFreitas v. State, 701 So.2d 593, 601 (Fla. 4th DCA 1997) (comparison of case to O.J. Simpson case “coupled with reference to [defendant] as a stalker, possessive ex-boyfriend who disapproved of his ex-girlfriend’s friends” violated rule of inflammatory argument).

Next, Mr. Capron asserts that his convictions for lewd and lascivious battery, lewd and lascivious molestation, lewd and lascivious conduct, and lewd and lascivious exhibition should be reversed because they are all based on the same acts that occurred on Friday at the motel, violating the prohibition against double jeopardy. The State responds that the acts were separated by enough time for Mr. Capron to stop, reflect, and form a new criminal intent. If the State’s argument is correct, there was no double jeopardy violation.

Questions of law, such as whether separately convicting Mr. Capron for lewd and lascivious battery, lewd and lascivious conduct, lewd and lascivious molestation and lewd and lascivious exhibition violate double jeopardy principles, are reviewed de novo. See United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 (10th Cir.1996); State v. Florida, 894 So.2d 941, 945 (Fla.2005); Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). The defendant bears the burden of proving a claim of double jeopardy. Rodriguez-Aguirre, 73 F.3d at 1025 (citing United States v. Daniels, 857 F.2d 1392, 1394 (10th Cir.1988)); see also Koon v. State, 463 So.2d 201, 203 (Fla.1985) (stating that it was defendant’s burden to show a double jeopardy violation).

The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also State v. Wilson, 680 So.2d 411, 413 (Fla.1996). “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)).

Section 800.04 contains no clear statement of legislative intent. See State v. Paul, 934 So.2d 1167, 1172 (Fla.2006). Thus, we employ the two-part Blockburger test, codified at section 775.021(4)(a), Florida Statutes, to determine whether separate offenses exist. The first part of the Blockburger test sets forth the “same elements test,” which prohibits courts from imposing multiple convictions for an act or acts that occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses. The second part provides that even if each of the offenses has an element that the other does not, the court must determine if any of the exceptions set forth in section 775.021(4)(b) applies and precludes separate convictions and sentences. Gordon, 780 So.2d at 19-20; see § 775.021(4)(a), Fla. Stat. (2004). However, the Blockbur-ger test applies to crimes occurring in only “one criminal transaction or episode.” Thus, we must first determine whether there was one criminal episode or multiple episodes. “In order to determine whether offenses occurred during a single criminal episode, courts look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002)); see also Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense).

The facts adduced at trial revealed that on Friday evening, Mr. Capron made M.W. touch his penis (count IV — lewd and lascivious molestation) and then removed her clothing. He then took her to a sink located in the same room and washed her. After washing her, Mr. Capron walked her back across the room to a bed, kissed her vagina (count II — lewd and lascivious battery), kissed her anus (count III — lewd and lascivious conduct), and touched her genital area with his penis (count I — lewd and lascivious battery). The next evening, Mr. Capron masturbated in her presence as she showered (count V — lewd and lascivious exhibition). Based on the circumstances presented, we conclude that three criminal episodes occurred — the first on Friday evening in the motel room before Mr. Capron washed M.W., the second occurred later that same evening after Mr. Capron washed M.W. and walked her from the sink to the bed, and a third occurred on Saturday evening in the bathroom of the motel room while M.W. showered.

In the events that occurred on Friday evening, there was a sufficient temporal break between the act committed before Mr. Capron washed M.W. and the remaining acts that occurred later that evening to allow him to reflect and form a new criminal intent. See Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001). In the period that it took Mr. Capron to take M.W. to the sink and wash her and then walk her back to the bed, he “had time to pause, reflect, and form a new criminal intent....” Id.; see Mijarez v. State, 889 So.2d 827, 828 (Fla. 4th DCA 2004) (stating that “spatial and temporal aspects of the surrounding circumstances” must be analyzed to determine whether defendant had “time to pause, reflect, and form a new criminal intent between occurrences”); see also Paul (holding that conviction for lewd and lascivious offenses did not violate double jeopardy as there was a sufficient temporal break between activity in living room and activity in bedroom for defendant to reflect and form a new criminal intent); Omelien v. State, 939 So.2d 1174 (Fla. 4th DCA 2006) (holding that lewd and lascivious battery and lewd and lascivious molestation did not occur in a single criminal episode, and, hence, convictions for both offenses' did not violate double jeopardy; defendant’s acts of kissing minor victim, removing her shirt, and kissing her breasts and his acts of removing her pants and engaging in vaginal intercourse were separated by defendant’s acts of entering bathroom and removing his clothes, which provided a temporal break that allowed him to reflect and form a new criminal intent); Newell v. State, 935 So.2d 83 (Fla. 5th DCA 2006) (holding that convictions for two counts of sexual battery did not violate double jeopardy; conversation between defendant and victim constituted a sufficient temporal break between the acts to allow for reflection). But see Jenkins v. State, 813 So.2d 182 (Fla. 4th DCA 2002) (holding that defendant’s convictions for sexual battery and attempted sexual battery violated double jeopardy; his two convictions arose out of a single episode, where defendant sexually battered victim in her living room and then picked her up to carry her to a bedroom to continue attack, but before entering bedroom he dropped victim and discontinued attack).

However, the acts that occurred Friday night after Mr. Capron washed M.W. were part of the same criminal episode. See Cabanela v. State, 871 So.2d 279 (Fla. 3d DCA 2004) (holding that multiple convictions and sentences for lewd assault upon child violated double jeopardy, where all acts for which defendant was charged, convicted, and sentenced arose out of single criminal episode which victim agreed occurred in short period of time). For this second criminal episode, we must apply the Blockbwrger test to determine whether multiple punishments for lewd and lascivious battery and lewd and lascivious conduct are authorized. King v. State, 834 So.2d 311 (Fla. 5th DCA 2003) (holding that double jeopardy permitted defendant’s conviction of only one count of lewd or lascivious molestation for touching 11-year-old victim’s breasts and for placing his penis in contact with victim’s buttocks, although defendant did not engage in both acts at exactly the same time, where the same victim was involved, the attack occurred solely in one location, and there was no meaningful temporal break in the episode).

Mr. Capron was charged in count II with lewd and lascivious battery by kissing M.W.’s vagina in violation of section 800.04(4)(a), in count III with lewd and lascivious conduct by kissing her anus in violation of section 800.04(6)(a), and in count I with lewd and lascivious battery by touching her genital area with his penis in violation of section 800.04(4)(a). The facts demonstrate that the two lewd and lascivious battery acts were not sufficiently discrete for them to be deemed separate offenses within that episode. See Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005) (holding that multiple convictions for lewd and lascivious acts when incidents not discrete constituted double jeopardy violation); Mijarez (holding that multiple convictions stemming from a single sexual encounter were improper, and, thus, convictions on two counts of lewd and lascivious molestation required reversal, where it could not be said that defendant paused, reflected, and formed a new criminal intent each time he touched alleged victim during the sexual encounter).

Further, in order for multiple convictions to be permitted under subsections (4)(a) and (6)(a) of section 800.04, pursuant to section 775.021(4)(a), ie., the “same elements” test, each offense is considered separate “if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4)(a), Fla. Stat. (2004). Recently, in Paul, the supreme court applied the same elements test to lewd and lascivious molestation and lewd or lascivious conduct, and concluded that the offenses contained the same elements. The court reasoned:

[S]ection 800.04(6)(a)(l) defines “lewd or lascivious conduct” as any intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999). In other words, any violation of subsection (5)(a), which prohibits ' the lewd touching of particular body parts of a person under sixteen years of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true — that (6)(a)(l) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations.

934 So.2d at 1173-74; see also Cruz v. State, 941 So.2d 1245, 1246 (Fla. 5th DCA 2006) (holding that dual convictions for lewd and lascivious molestation by touching breast or clothing covering breast of victim, who was 15 years old, and for lewd or lascivious conduct by sucking or kissing victim’s neck violated defendant’s constitutional right against double jeopardy; defendant’s acts occurred during single episode in a single location and without any meaningful temporal breaks between acts, and it was not the case that each offense had an element that the other did not).

Similarly, it appears that lewd and lascivious battery includes the same elements as the offense of lewd and lascivious conduct. Specifically, lewd and lascivious battery requires proof that the defendant engaged in sexual activity “with a person 12 years of age or older but less than 16 years of age” or “[ejneourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity.” See § 800.04(4), Fla. Stat. (2004). The statute defines “sexual activity” as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 800.04(l)(a), Fla. Stat. (2004). As earlier discussed, lewd and lascivious conduct only requires a touching. Paul, 934 So.2d at 1173-74. It appears that any violation of subsection (4)(a), which prohibits the penetration or union of certain body parts of a person under sixteen years of age, would also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. In order to commit any kind of battery, there must be a touching. See generally D.C. v. State, 436 So.2d 203, 206 (Fla. 1st DCA 1983) (stating that “any intentional touching of another person against such person’s will is technically a criminal battery”). As a result of these facts, these two charges cannot be considered separate offenses. See generally Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005) (finding that conviction for sexual battery and lewd and lascivious molestation that arose out of single act constituted double jeopardy violation); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003) (determining that convictions for sexual battery and lewd and lascivious battery, based on same act, constituted double jeopardy violation). But see Darville v. State, 912 So.2d 63 (Fla. 4th DCA 2005) (upholding defendant’s convictions for sexual battery and lewd and lascivious molestation).

In summary, we conclude that three criminal episodes occurred. Mr. Capron cannot be convicted of both a violation of section 800.04(4)(a) and section 800.04(6)(a), for the acts which occurred as part of the same criminal episode on Friday evening. However, he can be convicted of lewd and lascivious molestation in violation of 800.04(5)(a) since this was part of a separate criminal episode on Friday evening. Likewise, the lewd and lascivious exhibition in violation of section 800.04(7) that occurred on Saturday evening was also entirely a separate event.

When multiple convictions violate double jeopardy, “[t]he proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.” Hardy v. State, 705 So.2d 979, 981 (Fla. 4th DCA 1998). We affirm Mr. Capron’s convictions for one count of lewd and lascivious battery, one count of lewd and lascivious molestation, and one count of lewd and lascivious exhibition, and remand this case to the trial court with directions to vacate one of the lewd and lascivious battery convictions and the lewd and lascivious conduct conviction and re-sentence Mr. Capron. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002); Johnson v. State, 744 So.2d 1221 (Fla. 4th DCA 1999).

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GRIFFIN and THOMPSON, JJ., concur.

      . Mr. Capron's failure to raise his double jeopardy challenge to his convictions and sentences at trial is not fatal to this Court's consideration of this issue because a double jeopardy violation constitutes fundamental error. See Romage v. State, 890 So.2d 550, 551 (Fla. 5th DCA 2005); see also Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003). However, it would have been helpful to the trial court if trial counsel had raised the issue below, as was his duty. Mr. Capron’s appellate counsel did not represent him at trial.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A.P.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1829.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant contends the trial court erred by imposing a $65 cost pursuant to section 939.185, Florida Statutes (2005). The State properly concedes error. S.V.S. v. State, 936 So.2d 769 (Fla. 5th DCA 2006). We vacate the $65 cost imposed.

REVERSED.

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


author: LAWSON, J.

text:
    John KALINOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1301.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    James P. Tarquín of James Patrick Tar-quin, P.A., Ocala, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

John Kalinowski appeals from an order denying his motion requesting the trial court to either: (1) clarify that his sentence did not include one of the conditions of sex offender probation with which he was ordered to comply; or (2) delete the condition. We find that the trial court correctly denied the motion, and affirm.

On December 8, 2005, Kalinowski plead guilty to two counts of possession of a computer image and/or photograph which included the sexual conduct of a child in violation of section 827.071(4), Florida Statutes (2005), and seven counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2005). Pursuant to a plea agreement between Kalinowski and the State, the trial court withheld adjudication and placed Kalinow-ski on concurrent fifteen-year terms of sex offender probation for the first two charges, with concurrent five-year terms of sex offender probation imposed for the remaining charges. Condition 26 of the court’s probation order prohibits Kalinow-ski from living within 1,000 feet of any school, day care center, park or playground, or any other place proscribed by the court where children regularly congregate. This is one of the standard conditions of sex offender probation mandated by section 948.30, Florida Statutes (2005).

Several days after sentencing, on December 12, 2005, Kalinowski filed a motion to clarify or modify his sentence. The motion states that Kalinowski has lived in the same house for over thirty years, but was instructed by his probation officer that he must now move based upon the prohibition in condition 26 of his probation order. The motion argues that this condition could not be enforced by the Department of Corrections because it is a special condition of probation not orally pronounced at sentencing. See Rothery v. State, 757 So.2d 1256, 1258 (Fla. 5th DCA 2000) (recognizing that “[b]efore a special condition of probation may be imposed, there must be an oral pronouncement of the condition at sentencing”). Alternatively, the motion asks that if the court finds that the condition “is deemed to be a standard condition,” the court modify Kalinowski’s sentence by removing the condition.

The trial court correctly found that the probationary condition from which Kalinowski seeks relief is a standard condition of sex offender probation that did not require oral pronouncement at sentencing. See § 948.30(l)(b), Fla. Stat. (2005); State v. Miller, 888 So.2d 76, 78 (Fla. 5th DCA 2004) (noting that the conditions of sex offender probation mandated by statute are not required to be orally pronounced at sentencing); Woodson v. State, 864 So.2d 512, 514 (Fla. 5th DCA 2004) (same); Taylor v. State, 821 So.2d 404, 405 (Fla. 2d DCA 2002) (same). Additionally, because section 948.30(1), Florida Statutes (2005), requires the court to impose this condition for any violation of section 827.071, Florida Statutes (2005), the trial court correctly denied Kalinow-ski’s request to delete the condition from his sentence.

AFFIRMED.

GRIFFIN and ORFINGER, JJ„ concur.

      . Section 948.30 formerly appeared as section 948.03(5), Florida Statutes (2004). The statute was relocated and renumbered effective July 1, 2004. See 2004-373, s. 18, Laws of Florida.

      . Kalinowski also claimed that the court failed to impose this condition in its written order. However, the condition is clearly included in the probation order signed by the trial judge (dated on the date of sentencing) and included on appeal as part of the sentencing record in Kalinowski's case. In his brief, Kalinowski alleges that this document was not provided to him until he reached the probation office. If it is true that no one informed Kalinowski of this mandatory condition of sex offender probation at any time at or before his sentencing, this might have served as the basis for a timely motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(1). However, facing a potential sentence totaling sixty-five years in state prison, Kalinowski apparently opted against seeking to set aside his plea.


text:
    Earic SMILEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1658.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    Earic Smiley, Bushnell, pro se.
    No Appearance for Appellee.
   LAWSON, J.

Earic Smiley appeals the denial of a petition for writ of mandamus in which he challenged the loss of gain time pursuant to a disciplinary action by the Department of Corrections, (“DOC”). We treat Smiley’s notice of appeal as a petition for writ of certiorari. Finding that Smiley was afforded due process and that the trial court applied the correct law, we deny the writ.

Earic Smiley is a prisoner currently incarcerated at the Sumter Correctional Institution in Bushnell, Florida. On November 19, 2005, while conducting a random locker and area search, a correctional officer found a “homemade weapon, approximately ten inches long,” beneath the mattress of Smiley’s bed, wrapped in his sheets. The institution followed its disciplinary procedure, which ultimately resulted in a finding that Smiley violated prison rules by possessing the weapon. As a result, Smiley suffered sixty days loss of gain time, and disciplinary confinement for sixty days. Smiley unsuccessfully exhausted his administrative remedies, then timely filed a petition for writ of mandamus with the circuit court in Sumter County.

Smiley’s only argument is that it was inappropriate to discipline him based solely upon evidence that the weapon was found in his bedding, since someone else could have placed it there to “set him up.” Citing primarily to cases regarding the quantum of proof necessary to establish possession beyond a reasonable doubt for a criminal conviction, Smiley argues that the trial court failed to apply the correct law in denying his petition for writ of mandamus. We disagree.

Although the loss of “basic” or “incentive” gain time credit (also referred to as “good time credit”) implicates due process, “[r]evocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such conviction, nor any other standard greater than some evidence applies in this context.” Dugger v. Grant, 610 So.2d 428, 432 n. 3 (Fla.1993) (emphasis in original) (quoting Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 456, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). As explained in Hill, requiring only “a modicum of evidence to support a decision to revoke good time credits will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens.” 472 U.S. at 455, 105 S.Ct. 2768.

The fact that a correctional officer found the weapon under Smiley’s mattress certainly provides a reasonable inference from which DOC officials could conclude that the weapon belonged to Smiley. As such, DOC’s disciplinary action was supported by “some evidence.” The evidence presented to DOC officials did not need to overcome Smiley’s hypothesis of innocence — that the weapon was a “plant”— beyond a reasonable doubt. Hill, 472 U.S. at 455-456, 105 S.Ct. 2768. The evidence did not need to be “clear and convincing.” Id. Nor did it even need to meet the lesser standard of proving possession by a preponderance of the evidence. Id. Because the evidence presented was clearly sufficient to meet the “some evidence” standard, we find that the trial court applied the correct law in reviewing DOC’s decision. Accordingly, we deny certiorari.

CERTIORARI DENIED.

GRIFFIN and ORFINGER, JJ., concur.

      . See Sheley v. Florida Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998) (finding that district court review of a prisoner disciplinary matter is properly by certiorari where the circuit court has already afforded the petitioner a review of the agency's administrative decision on the merits). “On the second level of review in the district court the issue is limited to a determination whether the circuit court afforded due process and whether the court observed the essential requirements of law.” Id. at 1206.

      . Mandamus is the accepted remedy for circuit court review of DOC disciplinary actions. Bush v. State, 945 So.2d 1207 (Fla.2006). However, “the circuit court in Leon County is the proper venue for such cases if the prisoner has exhausted administrative remedies and is not alleging entitlement to immediate release.” Id. at 1213. Although the case should have been transferred to the circuit court in Leon County, venue was waived below.


text:
    Phillip A. GOOLSBY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3462.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      Phillip A. Goolsby, DeFuniak, Pro Se.
    ' Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Mr. Goolsby’s motion for rehearing, and withdraw our earlier per cu-riam affirmance and the mandate. In place of our earlier opinion, we substitute the following:

In Goolsby v. State, 914 So.2d 494 (Fla. 5th DCA 2005), we directed the circuit court to reconsider de novo Goolsby’s motion for postconviction relief, as the eviden-tiary hearing had been conducted by a recused judge. On remand, the matter was assigned to a different judge who considered the court file, along with a transcript of the hearing conducted by the disqualified judge. Goolsby’s postconviction motion was then denied. On appeal, Goolsby contends that it was error for the court to consider those transcripts. We agree. When we ordered de novo review by a new judge, we contemplated that Goolsby’s postconviction motion would either be summarily denied with appropriate references to the record and attachments, or that a new hearing would be conducted. The procedure utilized by the trial court denied it the opportunity to view the witnesses and weigh their credibility.

Accordingly, we reverse the order denying postconviction relief and remand for reconsideration. On remand, the trial court shall either summarily deny the motion with appropriate attachments and references to the record, or conduct a new evidentiary hearing on Goolsby’s meritorious claims. If a hearing is conducted, the court shall not consider, except for impeachment or for any other lawful purpose, the earlier postconviction hearing transcripts.

REHEARING GRANTED; REVERSED AND REMANDED.

THOMPSON, ORFINGER and EVANDER, JJ., concur.

      . The mandate in this matter was issued during an earlier term of court although the time for moving for rehearing had not expired. While the general rule is that the mandate may be withdrawn only during the term of court in which it was issued, see State Farm Mut. Auto. Ins. Co. v. Judges of the Dist. Court of Appeal, Fifth Dist., 405 So.2d 980 (Fla.1981), this Court has recognized a narrow exception for circumstances like those in this case. For example, in Plucinik v. State, 885 So.2d 478 (Fla. 5th DCA 2004), we held that when a mandate was improvidently issued on the erroneous conclusion that no timely motion for rehearing had been filed, it could be withdrawn even though the term of court had already expired. See also Zielke v. State, 839 So.2d 911 (Fla. 5th DCA 2003).


text:
    Ronald F. SKINNER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3927.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    Ronald F. Skinner, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.800(a) motion in Case No. 48-1987-CF-6948 in the Circuit Court in and for Orange County. See Fla. R.App. P. 9.141(e)(5)(D).

ORFINGER, MONACO and EVANDER, JJ., concur.


text:
    Bobbie EDWARDS, Appellant, v. CITY OF DELAND, et al., Appellee.
    No. 5D06-2089.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    Bobbie Edwards, DeLand, pro se.
    Jeffrey E. Mandel, and Melissa A. Campbell, of Akerman Senterfitt, Orlando, for Appellee.
   PER CURIAM.

The appellant, Bobbie Edwards, takes this appeal from a final order of the State of Florida Commission on Human Relations, dismissing his petition for relief from an unlawful employment practice purportedly committed by the appellee, the City of DeLand. After a review of the record on appeal and the briefs filed by the parties, we conclude that the exercise by the Commission of its statutory authority is not clearly erroneous, and is supported by competent substantial evidence. Our duty, therefore, is to affirm. See Public Employees Relations Comm’n v. Dade Co. Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985).

AFFIRMED.

PALMER, ORFINGER, and MONACO, JJ., concur.


text:
    Jose GUTIERREZ, Appellant, v. Cheryl McDOWELL, Appellee.
    No. 5D06-2194.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    Alberto E. Lugo-Janer, Kissimmee, for Appellant.
    Frank T. Allen, of The Allen Firm, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991) (holding that healthcare provider’s failure to timely raise issue of patients’ failure to provide statutory pre-litigation notice of intent to file medical malpractice action constituted waiver of issue).

PALMER, ORFINGER and MONACO, JJ., concur.


text:
    Carl Eugene THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2091.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Edward G. Seitz, Esquire of Niederleh-ner & Seitz, P.L., Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Carl Eugene Thomas appeals his conviction and sentence following a nolo conten-dere plea conditioned on his right to appeal the denial of his motion to suppress. We dismiss for lack of jurisdiction. See Fla. R.App. P. 9.140(b)(2)(A)® (2006) (providing that a defendant “may not appeal from a guilty or nolo contendere plea except” where the defendant “expressly reserve[s] the right to appeal a prior disposi-tive order of the lower tribunal”). See also, e.g., Robinson v. State, 885 So.2d 951, 953 (Fla. 1st DCA 2004) (“A conditional plea of nolo contendere is permissible only if the legal issue to be appealed is disposi-tive of the case.”); Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986) (“An issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case.”).

The parties did not stipulate that the motion to suppress presented a dispositive issue and the trial court did not find that its ruling on appellant’s motion was dispos-itive. The prosecutor took no position when the court informed appellant that he could appeal the motion’s denial, and the court so informed appellant without addressing the question of whether the ruling was dispositive. See Morgan, 486 So.2d at 1359 n. 3 (“Fairness dictates that the defendant should be given the opportunity to withdraw his plea of nolo contende-re.”). Cf. Ashley v. State, 611 So.2d 617, 618 (Fla. 2d DCA 1993) (dismissing the appeal without prejudice so that appellant could raise a Florida Rule of Criminal Procedure 3.850 motion to withdraw his plea, where “[t]he attorneys and the court were mistaken in their assumptions that the ruling on the motion ... was disposi-tive”). Nor did the parties ever address the question of the suppression order’s dispositiveness in the trial court. Compare, e.g., State v. Carr, 438 So.2d 826, 827-28 (Fla.1983) (holding defendant was not entitled to withdraw nolo plea where the State had objected that the order was not dispositive and the trial court informed the defendant of the rights he would surrender before the plea was entered).

Dismissed.

DAVIS, BENTON, and ROBERTS, JJ., concur.


text:
    FIRST QUALITY EQUIPMENT RENTAL, INCORPORATED, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D06-0687.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Donna H. Stinson of Broad & Cassell, Tallahassee, for Appellant.
    Christa Calamas, General Counsel, and Garnett Chisenhall, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 1, 2006, the Court has concluded that the letter from the Agency for Health Care Administration declining to take action on the appellant’s petition for formal administrative hearing does not constitute an ap-pealable order. Simmons v. Agency for Health Care Administration, 1D06-4544, 950 So.2d 431, 2007 WL 162198 (Fla. 1st DCA January 24, 2007). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. All pending motions are denied as moot.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


text:
    Henry AUSTIN, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2000.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Henry Austin, pro se, Appellant.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of Appellee’s motion for rehearing, the motion is granted to the extent that the opinion dated December 19, 2006, is hereby withdrawn and the attached opinion is substituted therefor. In all other respects, the motion is denied.

Appellant, a prisoner, filed grievances after he was disciplined when he pled no contest to charges that he disrespected a prison employee. The grievances were denied. Appellant then appealed directly to the Secretary of the Department of Corrections (DOC). The appeals were returned without action because the DOC determined that the appeals were untimely. Appellant filed another round of appeals with the DOC, arguing therein that the original appeals were timely. The second round of appeals were also returned without action. Appellant then filed in the lower tribunal a petition for writ of mandamus which, in part, sought a declaratory judgment. For this filing, a lien was imposed against Appellant’s trust account pursuant to section 57.085, Florida Statutes.

The trial court denied the petition with prejudice on the basis that Appellant had failed to exhaust his administrative remedies because Appellant did not timely appeal the response to the grievances. Thereafter, Appellant filed a petition for writ of certiorari with this Court, which this Court converted to an appeal pursuant to Green v. Moore, 777 So.2d 425 (Fla. 1st DCA 2000).

Because competent, substantial evidence supports the trial court’s finding that Appellant did not place the administrative appeals into the hands of prison officials until after the time for appeal had expired, we affirm the trial court’s order denying mandamus. We also affirm the imposition of the liens issued on October 27, 2005, December 9, 2005, and May 3, 2006, because Appellant’s petition contained a civil claim piggy-backed onto a gain time claim. Schmidt v. McDonough, 32 Fla. L. Weekly S16, — So.2d -, 2006 WL 3740999 (Fla. Dec. 21, 2006).

AFFIRM.

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


text:
    Eric B. LANTERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2651.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Eric B. Lanterman, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Eric B. Lanterman appeals the summary denial of his motion for postconviction relief. We affirm the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, except insofar as it summarily denies his claim of scoresheet errors. We reverse and remand as to that claim only.

The sworn motion makes detailed, unre-futed allegations that scoresheets relied on in sentencing the movant after he was convicted at trial and his probation imposed for an earlier offense was revoked, contained multiple errors, which resulted in a guidelines sentencing floor of 55.5 months, instead of 26.25 months, in state prison. See generally Fla. R. Crim P. 3.704 (2004); Fla. R.Crim. P. 3.704 (1999). Nothing in the record contradicts this claim, and the order under review does not address the claim.

We cannot determine from the record whether the trial court would have imposed the same sentence without the scoresheet errors, or, indeed, whether the asserted errors, in fact, exist. See State v. Anderson, 905 So.2d 111, 112 (Fla.2005) (“[T]he would-have-been-imposed test should apply to scoresheet error [claims] raised either on direct appeal or by motion filed under Florida Rule of Criminal Procedure 3.850.”). We therefore reverse the order on review insofar as it summarily denies Mr. Lanterman’s claim of score-sheet errors (but not otherwise), and remand for the court either to attach records that conclusively refute the claim or to conduct an evidentiary hearing. See Fla. R.Crim. P. 3.850(d) (2006); Fla. R.App. P. 9.141(b)(2)(D) (2006).

Affirmed in part, reversed in part, and remanded.

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


text:
    Alessandro GOLINO, M.D., Appellant, v. SARASOTA COUNTY PUBLIC HOSPITAL BOARD d/b/a Sarasota Memorial Hospital, Appellee.
    No. 2D06-14.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.
    Richard Benjamin Wilkes and Richard W. Candelora of Richard Benjamin Wilkes, P.A., Tampa, for Appellant.
    David A. Wallace, Carol Ann Kalish, and Stacy J. Borisov of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Appel-lee.
   PER CURIAM.

Affirmed.

CANADY and VILLANTI, JJ., Concur.

LaROSE, J., Dissents.


text:
    YEMA HOME HEALTH CARE, INCORPORATED, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D05-3376.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Donna H. Stinson of Broad & Cassell, Tallahassee, for Appellant.
    Christa Calamas, General Counsel, and Garnett Chisenhall, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 22, 2005, as well as the appellee’s response to the Court’s order of November 8, 2005, the Court has concluded that the letter from the Agency for Health Care Administration declining to take action on the appellant’s petition for formal administrative hearing does not constitute an appealable order. Simmons v. Agency for Health Care Administration, 1D06-4544, 950 So.2d 431, 2007 WL 162198 (Fla. 1st DCA January 24, 2007). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. All pending motions are denied as moot.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


text:
    PEDI-CARE PLUS, INCORPORATED, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D06-0574.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Donna H. Stinson of Broad & Cassell, Tallahassee, for Appellant.
    Christa Calamas, General Counsel, and Garnett Chisenhall, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 1, 2006, the Court has concluded that the letter from the Agency for Health Care Administration declining to take action on the appellant’s petition for formal administrative hearing does not constitute an ap-pealable order. Simmons v. Agency for Health Care Administration, 1D06-4544, 950 So.2d 431, 2007 WL 162198 (Fla. 1st DCA January 24, 2007). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. All pending motions are denied as moot.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. V. F., mother of K.M. F., a minor child, Respondent.
    No. 1D06-5759.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.
    Maryellen McDonald, Chief Legal Counsel, District 2, Department of Children & Families, Tallahassee, for Petitioner.
    Richard D. Ogburn, Panama City, for Respondent.
   PER CURIAM.

The Department of Children and Families filed a petition for writ of certiorari asking this court to quash two orders entered by the circuit court below in a termination of parental rights proceeding. However, the petition for termination of parental rights has now been dismissed. Because the issues in this case are now moot, we dismiss the petition for writ of certiorari. See L.W.T. v. A.W., 770 So.2d 241 (Fla. 1st DCA 2000).

DISMISSED.

BARFIELD, BENTON, and POLSTON, JJ., concur.


author: PER CURIAM. BROWNING, C.J.,

text:
    B.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4643.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Felicia A. Wilcox and Betty Cheramie, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.- See, e.g., Padmore v. State, 743 So.2d 1203 (Fla. 4th DCA 1999); Brookins v. State, 704 So.2d 576 (Fla. 1st DCA 1997).

WEBSTER and PADOVANO, JJ., concur.

BROWNING, C.J., concurs with written opinion.

BROWNING, C.J.,

concurring opinion.

I concur with the majority opinion, because I am bound by the precedents it cites. However, I conclude that these precedents were incorrectly decided.


text:
    Louis F. HYSMITH, Jr., Appellant, v. Elizabeth HYSMITH-GRAHAM, Plenary Guardian of Edwin Robert Hysmith, Appellee.
    No. 1D06-1210.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.

      Koko Head of Koko Head, P.A., Fruit Cove, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The appellant challenges an order by which attorney’s fees were awarded, arguing that the trial court erred by reducing the amount requested. Although a reduction in attorney’s fees might ultimately be appropriate in this case, we must reverse the present order because the trial court failed to set forth specific findings regarding the attorney’s hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Accord Messana v. Seaside Cmty. Dev. Corp., 908 So.2d 551 (Fla. 1st DCA 2005); T.G.G. v. P.M.L., 661 So.2d 351 (Fla. 1st DCA 1995); Jones v. Assocs. Fin. Inc., 565 So.2d 394 (Fla. 1st DCA 1990). The order under review is accordingly REVERSED and this case is REMANDED.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


author: THOMAS, J.

text:
    William MADISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5188.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

We are constrained to reverse Appellant’s conviction and remand this case for a new trial because the trial court designated Appellant as co-counsel without conducting an inquiry under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and without advising Appellant of the dangers of self-representation. See Brooks v. State, 703 So.2d 504 (Fla. 1st DCA 1997).

After designating Appellant co-counsel, the trial court allowed him to argue a pretrial motion and present lengthy arguments at his sentencing that essentially constituted requests for post-trial relief. While we understand the trial court’s attempt to accommodate Appellant’s request and promote judicial economy, we established a bright-line rule in Brooks that a trial court cannot designate a criminal defendant as co-counsel and permit the defendant to perform any of the “core functions” of an attorney unless the trial court first conducts a Faretta inquiry. Id. at 506. Because presenting a pretrial motion is a core function of an attorney, we must reverse.

As we noted in Brooks, a trial court certainly possesses the discretion to deny a defendant’s request to serve as co-counsel when the defendant has not made an unequivocal request to represent himself. Id. Due to the inherent dangers associated with hybrid representation, however, the trial court does not possess the discretion to allow such representation without first conducting a Faretta inquiry. Id. Here, the fact that Appellant argued only pretrial and post-trial motions does not alter the requirements of our precedent. See id. (acknowledging that the situation in Payne v. State, 642 So.2d 111 (Fla. 1st DCA 1994), was superficially distinguishable, but stating that this difference did not alter the bright-line rule).

REVERSED.

BARFIELD and VAN NORTWICK, JJ., concur.


author: KAHN, J.

text:
    Christopher BRADY and Georgina Brady, Appellants, v. SCI FUNERAL SERVICES OF FLORIDA, INC., d/b/a Eastern Gate Memorial Gardens, Appellee.
    No. 1D06-2103.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.

      Bradley S. Odom of Kievit, Odom & Barlow, Pensacola, for Appellants.
    William H. Stafford, III, of Clark, Part-ington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellee.
   KAHN, J.

Christopher and Georgina Brady appeal a directed verdict that barred them, pursuant to Florida’s impact rule, from seeking non-economic damages under a negligence count. Because the pleadings and the evidence sufficiently created a jury issue as to such damages, we reverse and remand.

BACKGROUND

The Bradys’ newborn son, Nicholas, died from the chromosomal birth defect Triso-my 13 on July 19, 2000. The Bradys had Nicholas buried in appellee SCI’s cemetery. In November 2001, approximately sixteen months after Nicholas’ death, Mrs. Brady made one of many visits to her son’s grave. She wanted to place a pinwheel into the ground over the burial site. When the pinwheel hit what Mrs. Brady assumed was a rock, she pulled a few weeds in an attempt to remove the obstruction. Mrs. Brady saw a white object under the dirt and discovered that the impediment was, in fact, the lid of Nicholas’ casket. The Bradys sued SCI for negligently and intentionally misrepresenting its burial services; intentional infliction of emotional distress/outrage; negligence; and fraud. At trial, the parties stipulated that Florida Administrative Code Rule 69K-6.008 requires at least twelve inches of ground cover over graves. The Bradys offered evidence that SCI placed only 1.75 inches of soil over the coffin. Mr. Wild-man, the general manager of SCI’s facility, Eastern Gate Memorial Cemetery, acknowledged the unlawfully shallow grave. The Bradys presented substantial evidence concerning Mrs. Brady’s claimed economic and emotional damages.

At the conclusion of the Bradys’ case-in-chief, the trial judge entered a directed verdict in favor of SCI on the issue of non-economic damages under the Bradys’ negligence count. The trial judge stated that “by definition negligence is not willful, that negligence is not wanton, in the sense that gross negligence may be wanton, gross negligence may be willful and wanton.” As the Bradys did not suffer a physical injury by impact, the trial judge found Florida’s impact rule precluded an award of non-economic damages under a negligence count. The Bradys argue the trial court erred because they properly amended their negligence count to allege SCI “acted willfully and intentionally and in reckless disregard” of their rights. The Bradys also included a prayer for non-economic damages in the amended negligence count.

ANALYSIS

When determining the propriety of a directed verdict, a court views the evidence and all inferences drawn therefrom in a light most favorable to the non-moving party. See Gant v. Lucy Ho’s Bamboo Garden, Inc., 460 So.2d 499, 501 (Fla. 1st DCA 1984). A directed verdict will be affirmed only when no proper view of the evidence could warrant a verdict in favor of the nonmoving party. Id.

Florida’s impact rule does not apply to cases where the tortfeasor’s negligence may be characterized as willful and wanton. See Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); see also Gonzalez v. Metro. Dade County Public Health Trust, 651 So.2d 673, 676 (Fla.1995) (“An action for mental anguish based on negligent handling of a dead body requires proof of either physical injury or willful and wanton misconduct.”). Here, the Bra-dys amended the negligence count in their complaint to allege that SCI “acted willfully and intentionally and in reckless disregard” of their rights. The Bradys also sought both pain and suffering damages as well as punitive damages under the amended negligence count. Apparently, the trial judge concluded that the Bradys had to plead a separate count of “gross negligence,” or “tortious interference with a dead body,” to shed the constraints of the impact rule and send the issue of non-economic damages to the jury. With respect, we see no such requirement in the case law.

Florida law does not require a plaintiff to allege tortious interference with a dead body in order to recover non-economic damages for the negligent mishandling of a dead body. See Gonzalez, 651 So.2d at 673. In Gonzalez, plaintiffs sued a hospital and funeral home for failure to deliver and bury their deceased infant. Id. at 673-74. Although the parents alleged tortious interference with a dead body and negligent infliction of emotional distress, the Florida Supreme Court’s opinion refers to the action as one for the “negligent handling of a dead body.” Id. at 674-76. The supreme court explained that the impact rule applies to such negligence claims unless the alleged misconduct is willful and wanton. Id. Under our reading of Gonzalez, the specific tort alleged did not affect the supreme court’s analysis; instead, the allegations in the complaint guided the court’s decision. See id. at 674 (explaining the Gonzalezes conceded the defendants’ acts were not willful and wanton).

We decline to impose a requirement that the Bradys fashion a count for gross negligence or tortious interference with a dead body, separate and apart from the negligence count. See Fla. R. Civ. P. 1.110(b) (“A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross claim or third-party claim, must state a cause of action and shall contain ... (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to demand general relief.”); see also Innovative Material Sys., Inc. v. Santa Rosa Utils., Inc., 721 So.2d 1233, 1233 (Fla. 1st DCA 1998) (“Pursuant to our rules of civil procedure, a party may assert inconsistent claims or defenses in a single pleading.” (citing Fla. R. Civ. P. 1.110(g))); Arcade Steam Laundry v. Bass, 159 So.2d 915, 917 (Fla. 2d DCA 1964) (“[A] pleader may set up in the same action as many claims or causes of action in the same right as he may have. One may plead two or more statements of a claim alternatively in one count or in separate counts.”). See generally Philip J. Padovano, Florida Civil Practice § 7.5 n. 1 (2000 ed.) (“To comply with rule 1.110(b)(2), a pleader need only allege ultimate facts.”). The Bradys’ negligence count, after the amendment, sufficiently advised the defendant and the court of the alleged wrongful actions. Given this, we see no reason to require the Bradys to label the count “gross negligence” or “tor-tious interference with a dead body” instead of “negligence,” where the allegations are the same.

Further, a party is not required to seek non-economic damages under a separate count in its complaint. The rules of civil procedure allow a party to simply amend its initial complaint to include a prayer for such damages. See Fla. R. Civ. P. 1.190 (applying very liberal standard regarding the amendment of pleadings); see also Newberry Square Dev. Corp. v. S. Landmark, Inc., 578 So.2d 750, 754 (Fla. 1st DCA 1991) (“Special damages should be pleaded with particularity sufficient to apprise the opposing party of the nature of the special damages claimed.”). In addition to alleging willful and wanton misconduct in their amended negligence count, the Bradys also announced their intention to seek non-economic damages. Accordingly, if a jury finds SCI’s acts met the heightened standard of willful and wanton misconduct, the negligence action would fall outside of the impact rule, for purposes of non-economic damages.

CONCLUSION

As the Bradys properly alleged willful and wanton conduct and sought non-economic damages, we REVERSE. On REMAND, the two issues for the trier of fact are whether SCI’s actions were willful and wanton as alleged in the amended complaint and, if so, the amount of non-economic damages, if any, supported by the evidence.

BROWNING, C.J. and WOLF, J„ concur.


text:
    HANGER PROSTHETICS AND ORTHOTICS, INC., and Hugh J. Panton, Appellants, v. DEPARTMENT OF HEALTH, BOARD OF ORTHOTISTS AND PROSTHETISTS, Appellee.
    No. 1D06-1703.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.
    Glenda L. Thornton of Foley & Lardner, LLP, Tallahassee, for Appellants.
    Bill McCollum, Attorney General, and Lee Ann Gustafson, Senior Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Hanger Prosthetics and Orthotics, Inc., and Hugh J. Panton challenge a summary final order finding proposed rule 64B14-3.001(12) a valid exercise of delegated legislative authority. We affirm.

The Legislature created the Board of Orthotists and Prosthetists (“Board”) and charged it with “implementing] the provisions of [the Orthotics, Prosthetics, and Pedorthics Act], including rules relating to standards of practice for orthotists, prosth-etists, and pedorthists.” § 468.802, Fla. Stat. (2005). In the September 2, 2005, edition of Florida Administrative Weekly, the Board published proposed rule 64B14-3.001(12), which defines the term “direct supervision” in the act:

(12) Direct Supervision means: sa-pervision while the qualified supervisor is on the premises.
(a) The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient’s orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner’s licen-sure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the' device;
(b) For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair.

31 Fla. Admin. W. 3081-82 (Sept. 2, 2005). The Legislature employed the term “direct supervision” in section 468.808, Florida Statutes (2005):

Support personnel. — A person must be licensed to practice orthotics, prosthet-ics, or pedorthics in this state. However, a licensed orthotist, prosthetist, or pedorthist may delegate duties to nonli-censed supportive personnel if those duties are performed under the direct supervision of a licensed orthotist, prosthetist, or pedorthist. In such instances the supervising licensee is responsible for all acts performed by such persons.

(emphasis added). Appellants argue the Board’s proposed rule is an invalid exercise of delegated legislative authority under section 120.52(8)(b) and (c), Florida Statutes.

A proposed rule becomes an “invalid exercise of delegated legislative authority” if the agency “has exceeded its grant of rulemaking authority,” or the proposed rule “enlarges, modifies, or contravenes the specific provisions of law implemented.” § 120.52(8)(b)-(c), Fla. Stat. (2005); Smith v. Fla. Dep’t of Corrs., 920 So.2d 638, 640-41 (Fla. 1st DCA 2005). Here, the Legislature has authorized the Board to implement rules governing the standards of practice for orthotists, prosthe-tists, and pedorthists under section 468.802. A licensed professional’s “direct supervision” of unlicensed support personnel qualifies as a standard of practice. Consequently, the Board acted within its grant of rulemaking authority.

The Board’s proposed rule also does not enlarge, modify, or contravene the Legislature’s requirement that unlicensed professionals be given direct supervision. The Legislature has mandated that licensed professionals directly supervise the work they delegate to unlicensed support staff. See § 468.808, Fla. Stat. (2005). The proposed rule merely specifies what direct supervision entails in the particular setting addressed by the statute.

As the Board acted properly within its legislative grant of rulemaking authority, and because the proposed rule gives effect to the Legislature’s requirement that licensed professionals provide direct supervision to support personnel, the order is AFFIRMED.

BROWNING, C.J. and WOLF, J., concur.


text:
    Everett W. IRVINE, IV, Appellant, v. T. SOUTHWOOD 1295, INC., a Florida Corporation, Appellee.
    No. 1D06-5299.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.

      W. Bradley Munroe of W. Bradley Mun-roe, P.A., Tallahassee, for Appellant.
    Kelly Overstreet Johnson of Broad and Cassel, Tallahassee, and Stephen A. Pitre of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order to show cause, the Court has determined that the instant appeal is premature. The order on appeal is neither a final order nor an appealable partial final order as argued by the appellant. Accordingly, the appeal is hereby DISMISSED for lack of jurisdiction. All pending motions are hereby denied as moot.

The appellant filed this appeal seeking review of an order labeled a “Final Judgment,” which entered judgment on a counterclaim to quiet title and determined that the counterclaim of slander of title was thereby rendered moot. However, the partition action that had initiated this case has not been resolved. Therefore, this order is not a final order. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming the traditional test for finality requiring that “no further action by the court will be necessary”). Further, the order is not appealable as a partial final judgment pursuant to Florida Rule of Appellate Procedure 9.110(k) because the remaining claim is related to the claims disposed of by the instant order. See Massachusetts Life Ins. Co. v. Crapo, 918 So.2d 393 (Fla. 1st DCA 2006). The overlap between the pending partition action and the quiet title and slander of title actions includes the factual determinations as to the validity of certain deeds and the respective interests of the parties in the real property at issue. Although the appellant argued that these issues are not unresolved, and therefore should not prevent the Court from finding jurisdiction, the test is whether the claims arise out of a common set of facts and not whether the factual issues themselves have been resolved in the nonfinal order on appeal.

DISMISSED.

ALLEN, PADOYANO, and LEWIS, JJ., concur.


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Francisco GALICIA, Appellee.
    No. 2D06-1408.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State appeals the order granting Galicia’s motion to suppress his identification card in its prosecution of him for possession of a fraudulent identification card. We reverse.

Galicia was the passenger in a van lawfully stopped by Deputy Cronin for not having its headlights on. Deputy Cronin was dressed in his uniform and was wearing a gun. He approached the driver’s door and asked the driver for his license and registration. Upon noticing that Gali-cia was not wearing his seatbelt, Deputy Cronin asked Galicia for his identification, which Galicia produced without hesitation. The deputy made this request of Galicia while still standing at the driver’s door of the vehicle. Galicia produced a resident alien identification card that Deputy Cronin immediately recognized was fraudulent. He arrested Galicia.

Galicia moved to suppress the identification card alleging it was obtained as the result of an unlawful detention. Galicia’s claim that he was unlawfully seized was based on his testimony at the suppression hearing that he felt he had no choice but to give the deputy his identification card because he believed that whenever a law enforcement officer requests something, one has to comply. The trial court, citing Morrow v. State, 848 So.2d 1290 (Fla. 2d DCA 2003), granted the motion stating that Galicia could reasonably understand that he was not free to leave when asked for his identification by a deputy in uniform who had no legal justification for the request. The State challenges the trial court’s ruling arguing that Deputy Cronin’s encounter with Galicia was consensual and therefore he did not need any justification to ask Galicia for identification.

The trial court’s ruling was erroneous because the encounter between Deputy Cronin and Galicia was consensual. A reasonable suspicion of criminal activity is not necessary if the contact between a law enforcement officer and a citizen is merely a consensual encounter rather than a seizure. Popple v. State, 626 So.2d 185, 186 (Fla.1993). The test for determining if someone has been seized is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). See also Popple, 626 So.2d at 188.

Deputy Cronin’s encounter with Galicia bore none of the indicia of a seizure. Unlike the officer in Morrow, Deputy Cronin remained on the driver’s side of the vehicle while requesting Galicia’s identification, and he made no attempt to restrict Gali-cia’s ability to leave. See Morrow, 848 So.2d 1290 (holding that officer’s encounter with defendant, a front-seat passenger in a car stopped for speeding, evolved into investigatory stop without reasonable suspicion of criminal activity when defendant refused to give officer his name and officer walked around to passenger’s door, positioned himself there, and called for backup when he did not know whether defendant had been wearing his seat belt while the car was in motion; any reasonable person would believe they were not free to leave when officer positioned himself outside their car door and called for back-up). While Galicia may have believed he had to comply with Deputy Cronin’s request, there are no objective facts that support the trial court’s conclusion that his belief was reasonable. Deputy Cronin merely asked Galicia for his identification, and Galicia complied with the request. See State v. Gonzalez, 919 So.2d 702, 704 (Fla. 5th DCA 2006) (holding that request of passenger in vehicle lawfully stopped for traffic infraction for her identification was consensual encounter where there was no evidence that defendant was intimidated or forced to comply with request).

Accordingly, we reverse the order granting Galicia’s motion to suppress and remand for further proceedings.

Reversed and remanded.

CASANUEVA and KELLY, JJ., Concur.

      . Deputy Cronin testified on cross-examination that he could not see whether Galicia was wearing his seatbelt while the van was in motion.


text:
    CHESSMASTERS, INC., a Florida corporation, d/b/a Bikes and Bargains, d/b/a Pawn World, d/b/a Storage for Chessmasters, Inc., Appellants, v. Jean CHAMOUN and Mona Chamoun, Appellees.
    No. 4D06-3362.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Robert C. Gindel, Jr. of Robert C. Gin-del, Jr., P.A., West Palm Beach, for appellant Chessmasters, Inc., for appellant.
    No brief filed for appellees.
   PER CURIAM.

Appellant, Chessmasters, Inc., appeals from a final judgment granting the plaintiffs’ request for declaratory judgment and declaring an automatic lease renewal provision to be void as an unreasonable restraint on alienation. Because the lease renewal provisions do not contain unambiguous and explicit language providing for renewals in perpetuity, we conclude that the trial court erred in holding that the renewal provisions in the leases are void as unreasonable restraints on alienation due to perpetuity. We find that Chessmasters should be entitled to one renewal because the lease agreements do not contain clear and unequivocal language stating that Chessmasters had a perpetual right to renew.

On January 1, 2004, Chessmasters entered into several leases with the prior owners, Heinrich Kandel and Gerhard Wolfsjaeger, of a building located in Lake Worth, Florida. The term of the lease was for five years, commencing January 1, 2004, for a monthly rental of $1600. The lease provided that “time is of the essence” and contained the following renewal provision:

Unless lessee shall notify lessor in writing on or before the expiration of the original term or any additional extended Five-Year period that lessee does not elect to extend to this lease agreement, this lease agreement including all of its terms, provisions and covenants shall be automatically extended for an additional period of Five (5) Years. For each extended Five-Year period Lessor is entitled to an increase in rental price of not more than 10% current rental price.

The lease agreement further provided that the lessee could terminate the lease at will so long as the lessor is provided written notice 120 days prior to termination of the lease; the lessor may not terminate the lease except for cause, i.e., breach of the agreement.

On June 4, 2004, the current landlords, Jean and Mona Chamoun, purchased the property from Heinrich Kandel and Ger-hard Wolfsjaeger. Approximately seven months after purchasing the property, on January 28, 2005, the landlords filed suit seeking declaratory judgment to void the leases because the leases “purport to encumber the property forever.” Following a non-jury trial, the trial court entered its final judgment granting the landlords’ request for declaratory judgment, finding that the five-year renewal option extended automatically at the option of the lessee for an unlimited period and that the lease was forever. As such, the court declared the automatic renewal provision contained in the lease void as an unreasonable restraint on alienation.

On appeal, Chessmasters argues that the trial court erred in holding that the renewal provisions are void as unreasonable restraints on alienation due to perpetuity. We agree.

The interpretation or construction of a contract is a matter of law and an appellate court is not restricted from reaching a construction contrary to that of the trial court. Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001).

Leases in perpetuity are universally disfavored, thus the courts are loath to construe a right to renewal as perpetual, and will not do so unless the language of the agreement clearly and unambiguously compels them to do so. Nat’l Home Cmtys., L.L.C. v. Friends of Sunshine Key, Inc., 874 So.2d 631, 632 (Fla. 3d DCA 2004) (citing Sisco v. Rotenberg, 104 So.2d 365 (Fla.1958)). Generally, the courts have construed such covenants as providing for one renewal only. Id. In National Home Communities, the Third District held that the lease agreement did not provide for perpetual renewal because there was no provision in the subject agreements evidencing “a clear and explicit right to perpetual renewals.” Id. at 634.

Similarly, in Sheradsky v. Basadre, 452 So.2d 599 (Fla. 3d DCA 1984), the court held that “in the absence of clear intent of the parties to create a lease in perpetuity, a covenant to renew is satisfied by one renewal.” Id. at 600. In Sheradsky, the lease agreement, dated November 26, 1969, provided for an initial term of five years, and further provided:

This lease shall automatically renew under the same terms and conditions as listed above, unless either party, by written notice within 60 days of the expiration date, declines to renew said lease.

Id. at 601. The lessees took the position that the five-year lease automatically renewed itself in 1974 and again in 1979 and brought suit against the purchaser for wrongful eviction under the agreement. Id. The trial court found that a second automatic renewal in 1979 was contemplated by the terms of the lease. Id. at 603. The Third District reversed, finding that the contested lease provision did not “clearly exhibit an intent to provide for more than one renewal.” Id.

We find further support for our holding in Schroeder v. Johnson, 696 So.2d 498 (Fla. 5th DCA 1997), in which the tenant filed a complaint seeking a declaratory judgment that the lease between herself and the landlord provided for perpetual renewals. Id. at 498. The specific lease provision stated:

Landlord does hereby grant to Tenant the right to extend this lease for successive five (5) year periods. Such right shall be executed by Tenant giving written notice of intent to exercise right of extension which written notice shall be delivered to Landlord by certified mail return receipt requested not less than ninety (90) days prior to the termination of the then existing rental.

Id. The trial court concluded that the parties intended that the tenant should have the right to renew the lease in five-year intervals during her lifetime. Id. at 499. However, the Fifth District reversed, finding that “since there is no unambiguous and explicit language in the lease evincing the intent to grant perpetual renewals, or even renewals for the tenant’s life, we hold that the lease provides for only two successive five-year renewals — ■ i.e., a maximum potential lease term of fifteen (15) years.” Id.

Likewise, the renewal provision in the instant case does not expressly limit the number of renewals and does not expressly state that the leases are renewable in perpetuity. Therefore, since the lease does not have any language that expressly grants perpetual renewal in unequivocal terms, the lease is not in perpetuity. Consequently, the trial court erred in holding that the renewal provisions in the leases are void as unreasonable restraints on alienation.

Furthermore, Chessmasters argues in the alternative that it is entitled to two new renewal periods because the renewal provision in the lease contains plural language. Chessmasters relies on Schroeder to support its argument. The lease agreement in Schroeder provided the tenant “the right to extend this lease for five year periods,” and the court found the lessee entitled to two successive five-year renewals. However, we conclude that Chess-masters should be entitled to one renewal only. The agreement in Schroeder clearly referred to the renewal period in the plural as “successive five-year periods.” In this case, “period” is referred to in the singular. Also, in Schroeder, the court stated:

Thus, in the absence of unambiguous terminology indicating the intention of the parties to provide for plural renewals, it is generally held that the covenant to renew is satisfied by one renewal, and does not require the insertion of one renewal clause in the instrument under which the lessee in holding subsequently to the expiration of the original lease.

696 So.2d at 499 (citing Hutson v. Knabb, 212 So.2d 362 (Fla. 1st DCA 1968)).

Here, the language of the lease agreement is ambiguous as to whether the parties intended to provide for plural renewals. Because the agreement does not “clearly exhibit an intent to provide for more than one renewal,” the covenant to renew should be satisfied by one renewal only. Sheradsky, 452 So.2d at 603.

Therefore, the trial court’s final judgment declaring the renewal provisions in the lease agreements void as unreasonable restraints on alienation due to perpetuity is reversed. Chessmasters is entitled to one renewal because the lease agreement does not contain clear and unequivocal language stating that the tenant has a perpetual right to renew the lease.

Reversed.

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: MAY, J. FARMER, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. Marvin LEONS, et al., Appellees.
    Nos. 4D06-4773 to 4D06-4775, 4D06-4990, 4D06-4991, 4D06-5079 to 4D06-5082.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

      Jacob C. Jackson, Chief Legal Counsel, District 10, Fort Lauderdale and Leslie Hinds St-Surin, Assistant District Legal Counsel, Miami, for appellant.
    Howard Finkelstein, Public Defender and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for ap-pellees.
   MAY, J.

Crisis driven, the Department of Children and Families (DCF) petitions this court for an emergency writ of prohibition or certiorari to vacate a trial court order that requires the DCF to provide mental health treatment to persons found to be incompetent while in jail awaiting placement in a forensic facility. The DCF argues that the trial court’s order departed from the essential requirements of law and violated the separation of powers doctrine. We previously denied the consolidated petitions. This opinion follows the issuance of our order.

All respondents are criminal defendants who have been declared incompetent, have been committed to the DCF, and are incarcerated in county jail awaiting placement in a forensic facility. The Public Defender’s Office filed motions or ore ten-us moved for immediate placement, immediate release, and for the DCF to provide mental health treatment pending the defendant’s placement in a forensic facility. The trial court consistently ordered the DCF to immediately place the defendant in a forensic facility and provide treatment in the jail pending that placement. This is the section of the order that serves as the focus of these proceedings.

The DCF argues that part of the trial court’s order effectively amends section 916.107(l)(a), Florida Statutes (2006), by directing the DCF to provide mental health services to forensic clients while in county jail. It suggests that the order requires the DCF to enter into contractual obligations for these services thereby encroaching on the executive branch’s discretion on how to spend funds and on the legislature’s power of appropriation. We disagree.

For decades the criminal justice system has been substituted for the lack of sufficient mental health treatment services. “The so-called de-institutionalization of the mentally ill has resulted in massive homelessness and the re-institutionalization of the mentally ill”"in county jails and state correctional institutions “poorly equipped to handle this population.” See Substance Abuse and Mental Health Corporation, 2006 Annual Report 2 (2007) [hereinafter Annual Report]. Indeed, the Department of Corrections reports that up to 17% or 14,345 of Florida’s state prison inmates have a serious mental illness. Id. at 15.

Despite a call to action by advocates and consumers over the years, Florida continues to rank forty-eighth in the nation in per capita mental health funding. Id. As early as 1981, the courts were called upon to address the issue of inadequate mental health services whenever mental health treatment needs reached crisis levels. See Miller v. Carson, 524 F.Supp. 1174 (M.D.Fla.1981). More recently, the First, Third, Fourth, and Fifth District Courts of Appeal have been called upon to address a myriad of issues arising out of the lack of funding to support the legislative mandate of placement of these individuals within fifteen days of their commitment. See, e.g., Dep’t of Children & Families v. Soliman, 947 So.2d 568 (Fla. 1st DCA 2006) (court did not have authority to order release of defendant to personal custody of the Secretary of DCF); Hadi v. L.B., 946 So.2d 1132 (Fla. 1st DCA 2006) (trial court departed from essential requirements of law by directing DCF to subpoena Secretary of agency); Hadi v. Cordero, 31 Fla. L. Weekly D3051, — So.2d -, 2006 WL 3499149 (Fla. 3d DCA Dec. 6, 2006) (order requiring DCF to comply with statutory duty to place committed incompetent offenders in forensic facility did not depart from essential requirements of law); Dep’t of Children & Families v. Davis, 923 So.2d 1290 (Fla. 3d DCA 2006) (court cannot designate placement of defendant in specific facility); Dep’t of Children & Families v. Harter, 861 So.2d 1274 (Fla. 5th DCA 2003) (trial court cannot direct DCF to provide sexual offender treatment as part of defendant’s commitment due to insanity); Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th DCA 2002) (DCF should make arrangements for temporary care and treatment while defendant is in jail awaiting placement in forensic facility). Yet, the crisis lingers.

This year, the DCF has requested “funding to expand secure forensic treatment bed capacity, forensic step-down bed capacity at state treatment facilities, funding for community residential treatment, and community outpatient mental health and substance abuse treatment for people living independently in the community while under conditional release.” See Annual Report at 12. It has also requested funding for “comprehensive community service teams to provide outpatient mental health and substance abuse services, including mediation, housing support, and employment services, for county jail inmates and persons with serious mental illnesses and co-occurring disorders who are at risk of incarceration.” Id. Hopefully, this request will be heeded, but it does not resolve the present controversy.

To obtain relief from the non-final orders through these petitions for writ of certiorari, the DCF must establish that the trial court departed from the essential requirements of law and caused irreparable injury that cannot be remedied on appeal. Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000). The DCF’s argument is two-fold. First, it argues the trial court’s order departed from the essential requirements of the law by effectively and impermissibly amending section 916.107. Second, the DCF argues that the order violates the separation of powers doctrine. We are unpersuaded by either argument.

In each of these cases, the trial court granted the defense motion for mental health treatment and ordered:

The Florida Department of Children and Family Services is hereby DIRECTED to arrange for the provision of mental health treatment to the defendant in the Broward County Jail pending hisITher] transport to a forensic hospital facility forthwith.

We find this order in complete compliance with existing law.

In 2006, the legislature amended section 916.106(7) of the Florida Statutes. That section now provides:

“Department” means the Department of Children and Family Services. The department is responsible for the treatment of forensic clients who have been determined incompetent to proceed due to mental illness or who have been acquitted of a felony by reason of insanity.

§ 916.106(7), Fla. Stat. (2006) (emphasis added). It is this section upon which the trial court relied in rendering its decision. We concur in the trial court’s analysis. This section clearly states that the DCF “is responsible for the treatment of forensic clients who have been determined incompetent.” Each of these defendants has been determined incompetent; therefore, the Department of Children and Family Services is responsible for their treatment.

Nevertheless, the DCF argues that section 916.107(l)(a) eliminated any mandate to provide treatment to these clients by employing the word “may.” That section now provides:

Clients with mental illness, retardation, or autism and who are charged with committing felonies shall receive appropriate treatment or training. In a criminal case involving a client who has been adjudicated incompetent to proceed or not guilty by reason of insanity, a jail may be used as an emergency facility for up to 15 days following the date the department or agency receives a completed copy of the court commitment order.... For a forensic client who is held in a jail awaiting admission to a facility of the department or agency, evaluation and treatment or training may be provided in the jail by the local community mental health provider for mental health services, by the developmental program for persons with retardation or autism, the client’s physician or psychologist, or any other appropriate program until the client is transferred to a civil or forensic facility.

§ 916.107(l)(a), Fla. Stat. (2006) (emphasis added). Prior to 2006, this section did not include the permissive word “may” at the end of the paragraph, it employed the mandatory word “shall”. The DCF thus argues it is not “required” to provide treatment to forensic inmates committed to its care. As did the trial court, we reject this explanation of statutory change.

Once these defendants are declared incompetent and are committed to the DCF, they are wards of the State. The stark reality that the State through the DCF does not take physical possession of them does not relieve the DCF of its statutorily-imposed duty to provide treatment. See § 916.106(7), Fla. Stat. (2006).

The DCF argues that the court’s order imposes on the DCF the duty to provide treatment “comparable to that received at the Florida State Hospital.” Those words cannot be found in the trial court’s order, which merely reiterates DCF’s statutory obligation to provide treatment. It does not direct the DCF as to what treatment shall be delivered or how it is to be delivered. Neither does the order constitute a demand for the DCF to enter into contractual obligations for these services. The order therefore avoids any violation of the separation of powers doctrine. See Dep’t of Children & Families v. Morrison, 727 So.2d 404, 405-06 (Fla. 3d DCA 1999).

The DCF next suggests that section 916.107(l)(a) should supercede the responsibility imposed by section 916.106(7). We are required to read statutes in pari materia to give meaning to all provisions. Young v. Progressive Se. Ins. Co., 753 So.2d 80, 84 (Fla.2000) (“Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.”). We agree with the trial court’s finding that the amendment to section 916.107(l)(a) merely provided options as to who can provide treatment; it did not eliminate the DCF’s responsibility for providing it.

We are well aware that courts cannot interfere with legislative and executive branch discretion in the appropriation and expenditure of funds. The justice system is however tasked with upholding the rule of law. That rule imposes a statutory obligation on the DCF to provide treatment for the defendants in these cases.

The DCF further argues that the trial court erred in failing to conduct an evidentiary hearing to determine whether it can afford to provide the statutorily-mandated treatment. We disagree. If the DCF cannot comply with the trial court’s orders due to fiscal shortfalls, then it can provide that proof, as it has so many times before, if called upon to show cause why it has failed to comply with a court order. See, e.g., Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th DCA 2002). We further agree with the trial court that Fa-cyson suggested the very relief that the legislature has now authorized by its amendment of section 916.106(7).

As noted by the third district, we are not unsympathetic to the dilemma faced by the DCF. See Cordero, 31 Fla. L. Weekly at D3052, — So.2d at --. It is truly between the rock and the hard spot. It is required to do that which it is underfunded to do. That dilemma however does not excuse the DCF from its statutory obligation; only the legislature can do that.

For the reasons expressed above, we deny the petitions for writ of certiorari.

Petitions Denied.

TAYLOR, J., concurs.

FARMER, J., concurs specially with opinion.

FARMER, J.,

concurring specially.

I agree with the majority that the trial court’s order is in harmony with the applicable statutory text and for that reason concur in the denial.

      . The DCF filed ten identical petitions. This court has previously consolidated all but one of the cases and ordered that they be treated as petitions for certiorari. On February 16, 2007, the DCF filed a notice of voluntary dismissal, updating this court on the current status of the petitioners and funding that has been secured to address the problem. We nevertheless publish this opinion due to the importance of the issue.

      . Respondent Leon was transported to a forensic hospital on November 20, 2006, but his claim is capable of repetition, yet evading review. See Dep't of Children & Families v. Mitchell, 844 So.2d 694 (Fla. 5th DCA 2003).

      .Some motions requested immediate release, placement, and mental health treatment while others sought only one or more forms of relief. In case nos. 4D06-5079, 4D06-5080, 4D06-5081, and 4D06-5082, the court deferred ruling on the motion for immediate placement, but granted the motion for treatment in jail pending transportation to a forensic facility. In case no. 4D06-4991, the court reserved ruling on the motion for immediate placement, denied the motion for immediate release, and granted the motion for mental health treatment in jail. In case no. 4D06-4990, the court granted the motion for mental health treatment. In case nos. 4D06-4773, 4D06-4774, and 4D06-4775, the court denied the motion for immediate release, granted the motion for immediate placement, and ordered the DCF to treat the defendant in jail pending transportation to a forensic facility.

      . On January 11, 2007, the Palm Beach Post reported the Legislative Budget Commission voted unanimously to spend $19 million to provide 373 more forensic beds.

      . Our holding does not eliminate the prospect of a trial court relying on The Baker Act, chapter 394, Florida Statutes, to provide needed services when the court determines the defendant satisfies the criteria of that statute. See Jerkins v. Jenne, Case Nos. 4D06-3204 and 4D06-3284 (unpublished order Sept. 1, 2006).

      . We do not comment on the trial court's finding that the DCF failed to request sufficient funds as it is unnecessary to our holding.


text:
    A.M., a Child, Petitioner, v. Kevin HOUSEL, Superintendent of the St. Lucie Regional Juvenile Detention Center, Respondent.
    No. 4D07-84.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Diamond R. Litty, Public Defender, Fort Pierce, and Usha Maharajh, Assistant Public Defender, Stuart, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petitioner sought habeas corpus relief claiming continued custody in secure detention past his 19th birthday was illegal. We agreed and issued an order granting the petition and commanding the respondent to release the child. This opinion explains why the child was entitled to release.

The lower court, on October 5, 2006, entered a disposition order after the child admitted to violating community control or probation. The disposition order committed the child to the Department of Juvenile Justice for placement in a high risk residential program until child’s 19th birthday. It appears the Department could not place the child in a level 8 program. On January 1, 2007, the child was to turn 19 years old, so the Department filed a notice that jurisdiction over the child would end on that date and recommended release. The notice was dated December 29, 2006.

On December 29, 2006, the lower court refused to act on the notice, instructing the clerk to strike the hearing from the docket. On January 2, 2007, the lower court again refused to act, instead noting the child had not received the treatment that was expected in the disposition order. In an effort to prevent the child from becoming a defendant in the adult criminal justice system, the judge concluded by stating: “over the objection of the defense, I’m not going to do anything at this point in time.” This petition for habeas corpus relief followed.

Section 985.201(4)(a), Florida Statutes (2005), grants jurisdiction to the circuit court, in child delinquency cases, “until the child reaches 19 years of age” or until the court relinquishes jurisdiction prior to the 19th birthday. There are exceptions, as described in sections 985.31 and 985.313, Florida Statutes, but neither apply in this case as the lower court did not make the findings necessary for extending jurisdiction beyond the child’s 19th birthday. As such, jurisdiction of the lower court ended on January 1, 2007, and the child was entitled to be released.

Despite notice by the Department, presumptively given on December 28, 2006, the judge decided to “do nothing.” In accordance with section 985.231(l)(d), Florida Statutes, the lower court’s refusal to “accept or reject the [Department’s] request” for release, “within 10 days after receipt of the notice” acts as a granting of the request. Because the court’s refusal to act within 10 days after receiving notice “shall be deemed” as granting the request for relief, the Department was authorized to release the child without further court order. § 985.231(l)(d), Fla. Stat.

Petition G'ranted.

POLEN, HAZOURI and MAY, JJ., concur.

      . Sections 985.31 and 985.313, Florida Statutes, were renumbered, effective January 1, 2007, to sections 985.47 and 985.465, respectively, without any substantive changes.


text:
    Reggie Bernard MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2927.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this Anders appeal, 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 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), Greene v. State, 919 So.2d 684 (Fla. 2d DCA 2006). We note that the judge specified those conditions on the record, but a written order is required to incorporate those findings.

Affirmed and Remanded.

GUNTHER, STONE and FARMER, JJ., concur.

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