author: FULMER, Chief Judge.

text:
    Ben A. HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-516.
    District Court of Appeal of Florida, Second District.
    April 18, 2007.
    James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General; and Ha Thu Dao, Assistant Attorney General, Tampa, (substituted for counsel of record) for Appellee.
   FULMER, Chief Judge.

Ben Hawthorne appeals from an order revoking his probation. We affirm the revocation of Hawthorne’s probation, remand for the trial court to enter corrected revocation and cost orders, and certify a question to the supreme court.

Hawthorne was on probation for acts that occurred in 1992 and were charged in two separate cases. In August 2004, while still on probation, he was charged with possessing cocaine. The charge was tried by a jury and, along with an alleged failure to pay costs, served as the basis of an affidavit of violation of probation. The parties stipulated that the evidence heard by the jury would be used by the court to resolve the allegation of violation of probation. The jury found Hawthorne not guilty. Subsequently, however, the court found that Hawthorne did possess cocaine and therefore revoked his probation.

We conclude that Hawthorne’s first argument on appeal, concerning the sufficiency of the evidence considered by the court in revoking his probation, is without merit and therefore comment no further. Hawthorne’s second argument is that his rights under the Confrontation Clause, as construed by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), were violated when the trial court, for the purposes of revocation, relied on the trial testimony of the supervisor of the technician who had conducted the analysis of the cocaine in question at a Florida Department of Law Enforcement (FDLE) laboratory. At Hawthorne’s jury trial, the lab technician’s written report was admitted as a business record and testified to by the supervisor rather than the technician himself, who the prosecutor claimed was too ill to appear in court. Aligning ourselves with our sister courts that have considered the issue, we hold that Crawford does not apply in community supervision revocation proceedings. See Wilcher v. State, 946 So.2d 114 (Fla. 5th DCA 2007); Jackson v. State, 931 So.2d 1062 (Fla. 4th DCA 2006); Peters v. State, 919 So.2d 624 (Fla. 1st DCA), review granted, 924 So.2d 809 (Fla.2006). Along with the First, Fourth, and Fifth districts, however, we certify the following question to the supreme court:

DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), APPLY IN PROBATION AND COMMUNITY CONTROL REVOCATION PROCEEDINGS?

Hawthorne raises two sentencing errors that require us to remand for the trial court to make the necessary corrections. The first concerns an error on the order revoking Hawthorne’s probation. The original affidavit of violation of probation alleged that Hawthorne violated condition 2 (requiring him to pay costs) and condition 5 (requiring him to obey the law). At his revocation and sentencing hearing, the court found that Hawthorne illegally possessed cocaine, but the court did not explicitly refer to “condition 5.” The court also found that Hawthorne had violated condition 11 (prohibiting Hawthorne from possessing illegal drugs), which was not alleged in the affidavit. The written revocation order likewise lists condition 11 but not condition 5. In response to a motion filed by Hawthorne under Florida Rule of Criminal Procedure 3.800(b)(2), the trial court attempted to correct the revocation order by using two “Memo of Sentence” forms (one for each underlying 1992 offense) stating “cond 11 was listed in error — it should be cond 5 that is listed.” The Memo of Sentence forms are unsigned.

We note first that the original revocation order was invalid because it listed as the sole basis for revocation a condition of probation not alleged in the affidavit. See McNeil v. State, 908 So.2d 556 (Fla. 2d DCA 2005) (remanding for the trial court to correct condition numbers on written order to conform to oral pronouncement). However, the court’s attempt to correct the order failed because the Memo of Sentence is inadequate to serve as a revocation order, see Monroe v. State, 760 So.2d 289, 289-90 (Fla. 2d DCA 2000), especially when unsigned, see Akridge v. Crow, 903 So.2d 346, 350 (Fla. 2d DCA 2005). On remand, the trial court shall enter a formal written order revoking Hawthorne’s probation, listing condition 5 and omitting condition 11.

Hawthorne’s second sentencing error concerns costs imposed for his underlying 1992 offenses and reimposed as liens at his revocation and sentencing hearing. In his rule 3.800(b)(2) motion, filed April 12, 2006, Hawthorne raised the cost errors he asserts on appeal, and the court purported to correct one of the errors in the unsigned Memo of Sentence described above. The court then attempted to correct the deficient Memo of Sentence with a signed order. However, the latter order was rendered July 11, 2006, beyond the sixty-day time limit specified in rule 3.800(b). As such, the July 11 order is a nullity and Hawthorne’s motion as to costs is deemed denied. See Moore v. State, 933 So.2d 42, 43 (Fla. 2d DCA 2006). On remand, the trial court shall issue a new order, with respect to case number CF92-2022A1, that corrects the Crimes Compensation Trust Fund cost from $50 to $20, as the court attempted to do in the 3.800(b) proceeding. Additionally, the court shall strike the $20 cost that was originally imposed as the last cost item on the September 3, 1992, written sentence and reimposed upon revocation of probation without statutory authority. See Washington v. State, 685 So.2d 858, 859 (Fla. 2d DCA 1996).

Affirmed in part; reversed in part and remanded with directions; question certified.

NORTHCUTT and SALCINES, JJ., Concur.

      . On appeal, Hawthorne also seems to be arguing that the court's oral findings at the revocation hearing were problematic because the court never explicitly said the words “condition 5.” However, he cites no authority standing for the proposition that even when, as here, the court recites facts that support a finding that a condition alleged on the affidavit was in fact violated, the court must also state the condition number in order for the finding to be valid. Furthermore, in his rule 3.800(b)(2) motion, Hawthorne essentially concedes the validity of the oral pronouncement: "The testimony only went to condition 5.... Thus, only condition 5 should have been on the violation of probation order." We conclude that the court’s oral findings sufficiently support a finding that Hawthorne violated condition 5 of his probation.

      . On appeal, Hawthorne withdraws his argument with respect to case number CF92-2063A1. Our discussion here therefore concerns only the costs associated with case number CF92-2022A1.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony MIGLIORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3809.
    District Court of Appeal of Florida, Second District.
    April 18, 2007.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

In this appeal, Anthony Migliore challenges the public defender fee he was assessed after he pleaded to numerous felony counts. During the pendency of this appeal, Migliore filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court, in its order granting the motion in part and denying it in part, recognized that it had failed to inform Migliore of his right to a hearing to contest the amount of fees but denied him relief on this point because of the “time constraints inherent in a 3.800(b)(2) motion.” The trial court also rejected Migliore’s contention that the trial court had failed to determine the value of the public defender’s services. Concluding that the trial court erroneously denied relief on Migliore’s challenge to the public defender fee in both respects, we affirm the convictions and sentences except in the imposition of the public defender’s fee.

At the sentencing hearing, the trial court had told Migliore that court costs and attorney’s fees would be through the court’s financial recovery procedure but failed to state the amount of the fee or to advise Migliore of his right to a hearing to contest that amount, as required by section 938.29(5), Florida Statutes (2004) and Florida Rule of Criminal Procedure 3.720(d)(1). See Gilchrist v. State, 674 So.2d 847 (Fla. 2d DCA 1996); Kirby v. State, 658 So.2d 1232 (Fla. 1st DCA 1995). We therefore reverse the imposition of the public defender fee and remand for reconsideration of the fee in accordance with the statutory and rule requirements. The judgment and sentence are affirmed in all other respects.

Affirmed in part, reversed in part and remanded with directions.

FULMER, C.J., and NORTHCUTT and CASANUEVA, JJ„ Concur.


author: HAZOURI, J.

text:
    Carla R. MORRISON, Appellant, v. William E. WEST, Jr., Appellee.
    No. 4D06-2345.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Joseph L. Thillman of Gerstin & Associates, Boca Raton, for appellant.
    Gerald F. Richman and Jill G. Weiss of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., West Palm Beach, for appellee.
   HAZOURI, J.

The trial court granted a motion brought by Appellee, William E. West, Jr. (West), to modify the final judgment in a probate case to which Appellant, Carla R. Morrison (Morrison), was a party. Morrison appeals the trial court’s denial of her motion to vacate the trial court’s order modifying that final judgment. We affirm.

On December 12, 2002, Morrison’s husband died testate leaving a significant mul-ti-million dollar estate. Several disputes arose between the executor of the estate and Morrison. Originally, Morrison was represented by Gary Woodfield, Esq. (Woodfield) of Edwards <& Angelí, LLP. She ceased that representation in August 2004. Morrison then entered into two contracts for legal representation with West, a North Carolina attorney.

West entered into settlement discussions in the probate action on Morrison’s behalf. On January 19, 2005, a settlement was reached in the probate action. Pursuant to the settlement, Morrison was to receive $1 million outright, inter alia. On January 20, 2005, Morrison called Woodfield to advise him that she fired West and wanted to retain Woodfield again. At a hearing to approve the settlement agreement later that same day, Woodfield advised the court that an issue had arisen between West and

Morrison concerning the $1 million. Woodfield explained to the court:

Apparently, without going into any detail — and I am not fully familiar with the details at this point — but there is an issue as to a possible potential fee dispute there, or at least a misunderstanding at this point in time.
And my understanding is that this million dollars that was to go outright to Carla [Morrison] represented an aspect of the fee.
And so I have filed a notice of appearance today and have reached an agreement with Mr. West whereby this one million dollars that this settlement agreement provides for is to go directly to Carla, instead we have agreed that that will be deposited into my firm’s trust bearing account and will remain in an interest-bearing trust account — bank account until we have resolved this fee issue.
So it has no substantive or really any impact on this settlement that is being presented to you. It’s just in an exercise of caution and to fully advise you that Mr. Pressly [the executor’s lawyer] has indicated that the settlement agreement reflects that this million dollars gets paid outright to Carla, and instead that is going to go into our firm’s trust account.

Then, the following exchange occurred:

COURT: [Morrison] agrees that it goes to your trust account until the fee arrangements are resolved?
WOODFIELD: She does. I have discussed that with her. She is in agreement with that, Mr. West is in agreement with that, and Mr. Pressly is in agreement with that.
And hopefully we will be able to amicably resolve the matter and that will be the end of it.

The trial court approved the settlement and executed the final judgment on January 20, 2005. Neither the final judgment nor the settlement agreement referred to the disbursement of the $1 million to West.

In February 2005, West learned that Woodfield released the $1 million in the Edwards & Angelí trust account to Morrison. On June 30, 2005, West filed a motion to modify the final judgment and requested that Morrison be ordered to redeposit the $1 million into the court registry pending further proceedings. On February 21, 2006, the trial court held a hearing on West’s motion to modify the final judgment. West, Woodfield, and Morrison testified at the hearing. The trial court ruled:

And having observed the witness testimony today I find that Carla Morrison did in fact authorize Mr. Woodfield to withhold that $1 million and place it in a trust account, bank account, interest bearing until the fee issue has been resolved. I find that that portion of her testimony regarding it be for a short time only is not credible. And I find the testimony of Mr. West regarding these fee disputes to be credible.
So I am directing that this money be placed back in the Edwards and Angelí trust account, interest bearing, not to be released under any circumstances without a further Court order until the fee issues are resolved.

The trial court directed that the money be returned to the Edwards & Angelí account within 30 days. Morrison never complied.

On April 27, 2006, Morrison filed a motion to vacate the order requiring her to redeposit the funds in the Edwards & Angelí account, pursuant to Florida Rules of Civil Procedure 1.540(b)(4) and 1.540(b)(5). Specifically, Morrison claimed that “the modification of the Final Judgment by this Court is equivalent to a prejudgment attachment of property without due process of law since the amount of money being claimed by [West] is allegedly for attorney’s fees.” The trial court denied Morrison’s motion to vacate.

Morrison argues that the trial court erred in not setting aside its order modifying the final judgment. We disagree. In Kroner v. Singer Asset Finance Company, L.L.C., 814 So.2d 454 (Fla. 4th DCA 2001), this court explained: “A trial court has broad discretion in determining whether to grant relief from a judgment. Likewise, we review orders of the trial court on such motions for abuse of discretion.” Id. at 456 (citations omitted).

As West correctly argues, the trial court had the authority to enforce Woodfield’s stipulation in open court that the $1 million would remain in the Edwards & Angelí trust account pending the resolution of the fee dispute. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608-09 (Fla.1994) (recognizing that “a trial judge has the inherent power to do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice”). Moreover, the trial court chose to accept West’s testimony, and discredit Morrison’s testimony, a determination within its exclusive province. See Nical of Palm Beach, Inc. v. Lewis, 815 So.2d 647, 651 (Fla. 4th DCA 2002) (citing Romano v. Goodlette Office Park, Ltd., 700 So.2d 62 (Fla. 2d DCA 1997)) (acknowledging that “[t]he weighing of evidence and issues of credibility are clearly vested with the trial court”).

Accordingly, we find that the trial court did not abuse its discretion.

Affirmed.

GUNTHER and POLEN, JJ., concur.


text:
    Thomas STEGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2275.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.
    Patrick Barbary of Morgan & Barbary, P.A., Melbourne, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Yunker, 402 So.2d 591 (Fla. 5th DCA 1981) (holding that in considering the legality of an arrest for trespass, the question is whether the officer had substantial reason to believe a trespass was being committed, not whether one was actually being committed).

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    R.R.K., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1437.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is on remand from the Florida Supreme Court for reconsideration in light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006). Regarding the imposition of statutory surcharges pursuant to sections 938.08 and 938.085, Florida Statutes, and in light of V.K.E., we strike those portions of the disposition orders that impose a $201 “domestic violence” surcharge and a $151 “rape crisis center” surcharge.

In all other respects, the disposition order is affirmed.

AFFIRMED, COSTS STRICKEN.

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


author: ORFINGER, J.

text:
    Alvin A. CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1978.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Alvin A. Clayton appeals his convictions and sentences for numerous offenses, arguing that the trial court erred by (1) failing to conduct a Nelson hearing; (2) failing to hold a hearing on his motion to withdraw his plea filed before sentencing; and (3) sentencing him as a habitual felony offender. We find no error and affirm.

As to his first point, we conclude that a Nelson hearing was unnecessary because Mr. Clayton expressed only general dissatisfaction with his counsel, and did not raise specific allegations of attorney incompetence sufficient to warrant such an inquiry. See Wilson v. State, 889 So.2d 114 (Fla. 4th DCA 2004). As to his second point, we conclude that the court did not err in failing to conduct a meaningful hearing on Mr. Clayton’s pro se motion to withdraw his plea because the motion lacked merit. Mr. Clayton premised his motion on his belief that he was entitled to be discharged on speedy trial grounds. In his discharge motion (which he filed as a petition for writ of habeas corpus), he alleged that he was continuously available for trial during the requisite time period. See Fla. R.Crim. P. 3.191. However, the record belies that allegation, and, instead, demonstrates that Mr. Clayton waived speedy trial at least twice, once on September 14, 2000, when he failed to appear at trial, and again on November 6, 2002, when his attorney filed a written motion for continuance.

Finally, Mr. Clayton’s contention that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), mandated that he had a right to a jury determination as to his qualification to be sentenced as a habitual offender was resolved contrary to his contention by this Court in Frumenti v. State, 885 So.2d 924 (Fla. 5th DCA 2004).

For these reasons, we affirm Mr. Clayton’s convictions and sentences.

AFFIRMED.

GRIFFIN and LAWSON, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    OFFICE OF THE STATE ATTORNEY FOR the THIRTEENTH JUDICIAL CIRCUIT OF FLORIDA, Appellant, v. Wesley GONZALEZ, Appellee.
    No. 2D06-1576.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      Arthur I. Jacobs of Jacobs & Associates P.A., Fernandina Beach, for Appellant.
    George F. Schaefer, San Diego, CA, for Appellee.
   PER CURIAM.

The Office of the State Attorney for the Thirteenth Judicial Circuit of Florida appeals a final judgment ordering it to pay Wesley Gonzalez attorney’s fees and costs pursuant to section 119.12, Florida Statutes (2002), which is part of Florida’s Public Records Law. We affirm.

I. Facts and Procedural History

According to an affidavit in our record, Wesley Gonzalez is currently under supervision for offenses to which he pleaded guilty in 1989. While on probation, he became concerned that the Florida Department of Law Enforcement had improperly calculated his gain time, which would affect the date on which his supervision should expire. In addition, the FDLE allegedly posted erroneous information on its website implying that Mr. Gonzalez had sex with a minor. Finally, the Florida Department of Corrections attempted to require Mr. Gonzalez to provide a blood sample for DNA analysis until this court ruled that he was not required to do so under Florida law. See Gonzalez v. State, 869 So.2d 1231 (Fla. 2d DCA 2004). Mr. Gonzalez therefore retained an attorney to make a public records request of the Office of the State Attorney for his entire closed litigation file in the hope that he would discover information about the gain time calculations, the sex offender website errors, and the events leading to the demand for a blood sample for DNA analysis.

Our record demonstrates that Mr. Gonzalez’s attorney, George Schaefer, made a formal request to the Office of the State Attorney for public records related to Mr. Gonzalez’s cases. His letter, addressed to the office records custodian, was dated September 25, 2002, and was sent via certified mail. The mail receipt demonstrates that the letter was received by the Office of the State Attorney on September 30, 2002.

Approximately ninety days passed and neither Mr. Gonzalez nor his attorney received the requested records, so Mr. Schaefer filed suit to demand that they be turned over on January 10, 2003. Count one alleged unlawful refusal to disclose public documents and demanded that the Office of the State Attorney make the records available within forty-eight hours pursuant to section 119.11(2), Florida Statutes (2002). In count two, Mr. Gonzalez sought an order declaring that the State Attorney’s Office’s failure to disclose the public records within a reasonable period from the date of the request constituted an unlawful and unexcused delay as defined by the Florida Public Records Law. Mr. Gonzalez sought attorney’s fees and costs for both counts pursuant to section 119.12. On January 21, 2003, the State Attorney’s Office mailed the requested records to Mr. Schaefer, who received them on January 24, 2003.

At the trial of this case, the parties presented the judge with a stipulation of the facts concerning the pertinent dates described above. Mr. Gonzalez then testified that he had given his attorney a deposit to cover expenses for photocopying that he assumed would be charged by the State Attorney’s Office. As a result of the public records lawsuit, Mr. Gonzalez had incurred fees.

Assistant State Attorney Pamela Bondi testified in defense that the office records custodian placed Mr. Gonzalez’s request in interoffice mail to the sex offenders unit, which received it and ordered the file for copying and redaction in anticipation of payment by the requesting party. Although the file was apparently sent back to the sex offenders unit, the records request was apparently misplaced; and because no one was sure who had requested the file, the sex offenders unit ultimately sent the file back to storage.

Ms. Bondi also testified concerning the payment procedures for public records documents. The records custodian calculates her time in copying the documents, and the office charges for her time as well as photocopying expenses. Ms. Bondi did not know, however, whether the State Attorney’s Office customarily issued a written invoice before expecting payment from the requesting party. In any event, in this case, no one from the State Attorney’s Office ever calculated the costs for copying the records because the request had been lost.

In closing arguments, counsel for the State Attorney’s Office contended that Mr. Schaefer never submitted payment for the costs of the records or even inquired about payment, and that fact excused the delay in providing the records. Mr. Gonzalez’s counsel objected to this line of argument, however, because the defense was never pleaded. Furthermore, as a practical matter, he contended that it would be impossible for his client to pay for the documents that had not yet been prepared or photocopied, since the charges had not been set. Counsel for the State Attorney’s Office replied that the Public Records Law does not require the agency to send an invoice or notify the citizen of the amount of payment due.

At the conclusion of the trial, the trial court rejected the State Attorney’s Office’s lack-of-payment defense, finding that there can be no payment until there has been a demand. Furthermore, the court found that the State Attorney’s Office inordinately delayed responding to the request for the documents: “Clearly the State Attorney’s Office is not entitled to an unlimited time period in which to review and respond to these lawful requests. The response [took] certainly over 90 days.” Thus, based upon the case law presented by both parties, the court decided that there was an “unlawful delay” constituting a violation of chapter 119, found that Mr. Gonzalez was entitled to reasonable costs and attorney’s fees under count two of his complaint, reserved jurisdiction to determine the amount, and entered a final judgment in favor of Mr. Gonzalez.

The Office of the State Attorney then appealed the final judgment to this court, which issued an order to show cause why the appeal should not be dismissed as a nonfinal, nonappealable order and cited cases holding that orders determining entitlement to attorney’s fees without setting the amount are not appealable. The Office of the State Attorney never responded to this court’s order, and the appeal was dismissed. After the dismissal, this court granted Mr. Gonzalez’s motion for appellate attorney’s fees.

After the appellate dismissal, the circuit court held a hearing to assess the appellate fees. Although the State Attorney’s Office argued that it would be appropriate for the court to reconsider its decision, the court declined to do so and reentered the final judgment along with an award of attorney’s fees. On this appeal, the State Attorney’s Office contends that the circuit court should not have found that it unlawfully refused to comply with the public records request, nor should it have awarded fees for the first appeal. We reject those arguments and affirm.

II. Public Records Law Violations— Delay and Unlawful Refusal

Under certain conditions, section 119.12(1) permits the award of attorney’s fees to a prevailing litigant who has filed a civil action against an agency to enforce the provisions of Florida’s public records law. In relevant part, the statute provides that “if the court determines that such agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.” The statutory purpose is to encourage voluntary compliance with Florida’s public records law, which gives effect to the state’s policy “that all state, county, and municipal records shall be open for personal inspection by any person.” § 119.01(1); see N.Y. Times Co. v. PHH Mental Health Servs., Inc., 616 So.2d 27, 29 (Fla.1993) (“If public agencies are required to pay attorney’s fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper requests for documents.”). The statute also implements the imperative of article I, section 24(a), of the Florida Constitution, which provides as follows:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.

Much of the case law in this area concerns the status of the entity from which the records are sought or potential exemptions from the statute. For instance, as this court observed in PHH Mental Health Services, Inc. v. New York Times Co., 582 So.2d 1191, 1192-93 (Fla. 2d DCA 1991), the issue was whether the agency is susceptible to chapter 119. “PHH was confronted with the problem of simply not knowing whether the law was applicable to it because PHH was not denominated a public agency by law and its status — i.e., whether it was acting on behalf of a public agency — was in doubt requiring judicial clarification.” In News & Sun-Sentinel Co. v. Palm Beach County, 517 So.2d 743, 743 (Fla. 4th DCA 1987), the Palm Beach County Fire-Rescue Department claimed a statutory exemption from the public records act pursuant to section 442.118(5), Florida Statues (1985), but the court held that the statute “was not intended to be an exemption from the disclosure requirements of chapter 119.” The Fourth District overturned the circuit court’s decision not to award attorney’s fees to the newspaper, holding that the agency’s good faith in refusing to turn over the records should not be engrafted onto the statute:

The attorney’s fees provision may be viewed by the records keeper as a penalty for noncompliance. In one sense this is accurate and thus it may have a tendency to motivate the records holder to be more responsive and careful when a request for disclosure is made. It is at the same time a means of compensating members of the public where a request for disclosure is frustrated when no specific exemption is involved.

Id. at 744.

In a somewhat similar vein, in Wisner v. City of Tampa Police Department, 601 So.2d 296, 298 (Fla. 2d DCA 1992), this court held that an award of attorney’s fees under section 119.12 was appropriate when the agency failed to provide some of the records sought under the public records act, including a polygraph chart. The City justified its refusal on the fact that it no longer had the records in its physical possession, but we held that the City could not circumvent the law by allowing a private entity to maintain custody of public records. Because the City unlawfully refused to permit the public records to be copied, Wisner was entitled to reasonable costs even though the City subsequently provided him with the records he sought, as he was forced to file a civil action to enforce his rights under chapter 119.

Wisner falls within a line of cases concerned with whether attorney’s fees are justified under the statute when the plaintiff has received the requested records after having filed suit. In Barfield v. Town of Eatonville, 675 So.2d 223, 224 (Fla. 5th DCA 1996), the Fifth District observed that the “evidence clearly establishes that it was only after the appellant filed a lawsuit that the documents he had previously sought by written request to the Town were finally turned over to him.” Although the evidence was not described in the opinion, the court specifically held that an “unjustified delay in complying with a public records request amounts to an unlawful refusal” and cited Brunson v. Dade County School Board, 525 So.2d 933 (Fla. 3d DCA 1988).

In Brunson, the plaintiffs made numerous requests for public records over a period of fifty-eight days, but the Dade County School Board failed to make the records available. The plaintiffs filed suit to obtain an order requiring compliance with chapter 119. The School Board provided the records only after being ordered to do so. Nevertheless, the circuit court denied the plaintiffs’ entitlement to attorney’s fees and costs on the ground that even though the School Board delayed in producing the records, it did not unreasonably refuse to provide them as that term is used in chapter 119. Reversing the denial of attorney’s fees and costs under section 119.12(1), the Third District reasoned:

When considered in the light of the intent of chapter 119, which has as its purpose the prevention of government agencies from restricting access to public records, the Board’s unjustified delay in complying with the requests until after a suit was brought amounted to an “unlawful refusal” under section 119.12, for which attorney’s fees and costs are to be awarded.

Id. at 934.

The Fifth District relied upon Wisner and Brunson for its holding in Mazer v. Orange County, 811 So.2d 857 (Fla. 5th DCA 2002), that production of the records after a lawsuit is filed does not render moot the public records law violations, particularly for determination of entitlement to attorney’s fees. The Mazer court found it necessary to remand for a hearing on “whether ... there was an unlawful refusal of access to the records....” Id. at 860.

This brief survey of the case law suggests that attorney’s fees are awardable for unlawful refusal to provide public records under two circumstances: first, when a court determines that the reason proffered as a basis to deny a public records request is improper, and second, when the agency unjustifiably fails to respond to a public records request by delaying until after the enforcement action has been commenced. This second ground is at issue here.

III. The Final Judgment

Count two of Mr. Gonzalez’s complaint alleged that the Office of the State Attorney’s extensive delay in providing the records he requested amounted to an unlawful refusal. At the time suit was filed, he had not received any records. After considering all of the facts, the trial court found that by “the time the defendant mailed the requested public records after the plaintiff filed suit, there was an unlawful delay in providing public records in excess of ninety days,” thus entitling the plaintiff to attorney’s fees and costs.

Although the wording of the final judgment suggests that the circuit court’s theory was that a delay in excess of ninety days constituted a per se violation of the statute, it is apparent from the record that the court appropriately considered all the factors and did not abuse its discretion in finding an unlawful refusal to provide the records. Delay cannot in itself create liability under section 119.12. If delay were the sole consideration, a party could make a proper request, rest on its laurels, let the required period of time pass, and then file suit to obtain the records and a fee award. Such conduct would run counter to the state’s public policy of encouraging a prompt disclosure of the public records.

The Office of the State Attorney’s only real defense in the circuit court was that its delay in turning over the records was justified because the plaintiff had not paid a fee for the photocopying costs. The circuit court appropriately rejected this defense (which was not properly pleaded). Section 119.07(1) addresses photocopying charges but as the court observed, the statute does not specify nor do any cases interpret whether there must be an invoice before payment or an offer to pay before invoice. Thus, the court relied upon its common sense to conclude that requiring payment before an invoice cannot excuse the delay in providing the records. We cannot find that the trial court abused its discretion in this regard.

In contrast to its stance in the circuit court proceedings, on appeal the Office of the State Attorney has argued that its failure to turn over the records was not a refusal at all but simply a mistake that could have been remedied had Mr. Gonzalez or his attorney called the office to request the records again. We would observe, in a similar vein, that the State Attorney’s Office, which admittedly had prepared the records but had lost the letter requesting them, should have been able to discern from the records that they related to Mr. Gonzalez and could just have easily contacted him or his probation officer to resolve the confusion. The record fails to reflect any action undertaken by the State Attorney’s Office to cure or mitigate its mistake. In any event, we decline to engraft upon the statute an additional obligation for a plaintiff to make repeated requests before filing suit to enforce his public records rights. “Should we engraft onto the term ‘unlawfully refused’ either a good faith or an honest mistake exception, the salutary effect of the 1984 amendment [providing for attorney’s fees] would be seriously diluted.” News & Sun-Sentinel, 517 So.2d at 744. Even if the delay in providing the records can be attributed only to ineptitude of the personnel in the Office of the State Attorney, the delay in this case amounts to an unlawful refusal. See Barfield, 675 So.2d at 225 (“The Town’s defense, that the delay in production of the records was caused by either the intentional wrongdoing or ineptitude of its Town clerk, amounts to an unlawful refusal and is not a valid basis for denying recovery of attorney’s fees and costs.... ”).

In conclusion, we must also point out that in resolving this case, this court is limited to those issues that were properly preserved for appellate review.

IY. Appellate Attorney’s Fees

After dismissal of the first appeal, this court ordered that Mr. Gonzalez was entitled to attorney’s fees in an amount to be set by the trial court, and the trial court entered an award of attorney’s fees pursuant to this court’s order. The Office of the State Attorney now challenges this order. We affirm.

Where, as here, successive appeals are taken in the same case, the law of the case doctrine applies. Under this doctrine, “questions of law that have actually been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings.” Specialty Restaurants Corp. v. Elliott, 924 So.2d 834, 837 (Fla. 2d DCA 2005) (citing Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)); see also Chicago Title Ins. Co. v. Alday-Donalson Title Co. of Fla., Inc., 832 So.2d 810, 813 (Fla. 2d DCA 2002). Because this court granted Mr. Gonzalez’s motion seeking appellate attorney’s fees and remanded only for calculation of the amount of those fees, the circuit court was required to follow this court’s mandate without further consideration. See Specialty Restaurants, 924 So.2d at 838. The trial court properly followed the mandate of this court and did not err in setting appellate fees.

Furthermore, we grant the appellant’s motion for attorney’s fees for this appeal and remand for the trial court to determine the amount in accordance with this opinion. In doing so, however, the court should consider the fact that the appellate briefs in this case and the dismissed appeal — with the exception of the appellate attorney’s fees issue — -are virtually identical and shall not award duplicate fees for appellate work.

The final judgment is affirmed in all respects.

CASANUEVA, SALCINES, and DAVIS, JJ., Concur.

      . The judge found in favor of the Office of the State Attorney on count one, which was based on the failure of the defendant to turn over the documents. By the time of the final hearing, the State Attorney's Office had provided Mr. Gonzalez with the documents, but the plaintiff argued that the disclosure was not complete due to problems with the redaction method. In rejecting the plaintiff’s argument, the court found that Mr. Gonzalez should have amended his complaint to include this theory.

      . Section 119.12(2) provides that "[wjhenever an agency appeals a court order requiring it to permit inspection of records pursuant to this chapter and such order is affirmed, the court shall assess a reasonable attorney’s fee for the appeal against such agency.” This court dismissed the first appeal for jurisdictional reasons, and the Office of the State Attorney chose not to challenge that dismissal either through response to the order to show cause or by moving for rehearing. Because a dismissal for lack of jurisdiction is not an affirmance, in retrospect we might not have granted Mr. Gonzalez’s motion for appellate fees at that juncture, but the Office of the State Attorney did not challenge the order in this court at that time. At any rate, that issue is moot because our decision requires that the trial court assess appellate attorney's fees against the Office of the State Attorney.

      . In PHH Mental Health Services, the supreme court held that attorney’s fees were properly awarded in Brunson but disapproved Brunson and IVevus & Sun-Sentinel, 517 So.2d 743, to the extent that either case "would permit the award of attorney’s fees under section 119.12(1) without a determination that the refusal was unlawful.” 616 So.2d at 30.

      . The final judgment used the terminology "unlawful delay.” More precisely, the delay must be unjustifiable and thus amount to an "unlawful refusal.”


author: NORTHCUTT, Judge.

text:
    James I. PASCO and Betty Pasco, Appellants, v. CITY OF OLDSMAR, Florida, a Municipality, Appellee.
    Nos. 2D05-5954, 2D06-696.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      Patrick B. Calcutt of Calcutt & Calcutt, P.A., St. Petersburg, for Appellants.
    James C. Yacavone, III of Frazer, Hubbard, Brandt, Trask & Yacavone, L.L.P., Dunedin, for Appellee.
   NORTHCUTT, Judge.

James and Betty Pasco sued the City of Oldsmar, alleging that the City had built a road across their property. The Paseos sought a declaratory judgment confirming their title to the portion of their property lying beneath and near the road, and alternatively they claimed damages for inverse condemnation. The City obtained a summary judgment on the basis of its affirmative defense that the implicated land was presumptively dedicated. The Paseos filed two appeals, which have been consolidated. We dismiss case no. 2D05-5954 without further comment because the orders appealed merely granted the City’s motion for summary judgment. See Better Gov’t Ass’n of Sarasota County, Inc. v. State, 802 So.2d 414 (Fla. 2d DCA 2001). In case no. 2D06-696, we reverse the final summary judgment because the record does not conclusively demonstrate that there was a presumptive dedication as alleged by the City.

Except where noted, the following facts are taken from Mr. Pasco’s deposition and from affidavits by him and his wife. The Paseos have lived on Douglas Road in Oldsmar for over twenty-five years. Over the years, Mr. Pasco worked for the City in different capacities, including as a laborer in the street department and later as an officer, training instructor, and inspector in the fire department.

When the Paseos bought their house, Douglas Road was a narrow, one-lane, shell road that ran along the southern boundary of their property. Around 1983 or 1984, the City decided to pave the road. However, the proposed path of the paved road did not follow the existing shell road. Instead, the proposed paving cut diagonally across the front of the Paseos’ property, at one point intruding almost thirty feet onto their property and leaving a small triangle of their property across the road. Mr. Pasco objected to the proposed path, but the director of public works at the time claimed that the City had a thirty-foot easement allowing such use. Mr. Pasco was unaware of any easement. When he continued his objections and asked to see documentation of the City’s alleged interest in his land, Mr. Pasco’s job was threatened. He was also told that the City would force him to move his house because it was allegedly located within the setback. In the face of these threats, and lacking the means to move his house or support his family without his job, Mr. Pasco ceased his objections. The road was paved as proposed, with the exception that, contrary to the original plan, the road as built comes to a dead end somewhere just west of the Paseos’ property.

About twenty years later, Mr. Pasco became interested in putting a front porch on his house. With the road so close, however, he was told that he would have to apply for a variance, which was not guaranteed. During this period he also joined with a neighboring family member to complain about drainage problems on the street. There were drains in the center of the road, but they had become clogged with dirt and debris due to a lack of maintenance.

According to Mr. Pasco, the mayor at the time and a city employee came to inspect the problem, and at this meeting the mayor admitted that the road was on Mr. Pasco’s property. Around this same time, Mr. Pasco heard that the City was forced to admit that it owned only a utility easement where the road runs. This apparently occurred in conjunction with the commercial development of a nearby property. The City responded to the drainage complaints by cleaning the drains once, in 2003. Mr. Pasco did not pursue a variance request for his porch. He did, however, obtain a survey showing that the road was located on his property. He complained to the City Council about the presence of the road on his property, but he received no meaningful response.

In December 2004, the Paseos filed the instant suit against the City. In its answer, the City claimed the statutory dedication as one of several affirmative defenses, along with adverse possession, easement by prescription, statute of limitations, and laches. Only the statutory dedication is at issue here, and we express no opinion on the merits of the other defenses.

After suit was filed, the parties conducted discovery. In its response to a request to produce, the City acknowledged that it had no documents — including no instruments of dedication or conveyance — supporting the City’s right to construct the road on the Paseos’ property. The City in turn served a request for admissions calling upon the Paseos to admit that the City had “maintained the portion of Douglas Road that abuts your property for more than four years prior to the date you filed the complaint in this action.” In response, the Paseos admitted only that the City “maintained the road since it was constructed.”

The City then moved for summary judgment, asking the court to rule that the roadway was presumed to be dedicated to the City under section 95.361(1), Florida Statutes (2004). That statute provides in pertinent part as follows:

(1) When a road, constructed by a county, a municipality, or the Department of Transportation, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or the Department of Transportation, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether or not the road has been formally established as a public highway. The dedication shall vest all right, title, easement, and appurtenances in and to the road in:
(a) The county, if it is a county road;
(b) The municipality, if it is a municipal street or road; or
(c) The state, if it is a road in the State Highway System or State Park Road System,
whether or not there is a record of a conveyance, dedication, or appropriation to the public use.

In support of its motion for summary judgment, the City filed the affidavit of its assistant public works director, who stated that the City had maintained a sign on Douglas Road since 1991. The affidavit further stated that the City had entered into a 1999 contract for the bimonthly sweeping of all City streets and that the assistant public works director had “personal knowledge that the City has performed periodic street sweeping on all City streets, including Douglas Road West,” for at least ten years. The City also relied on the Paseos’ above-mentioned response to the request for admissions.

In opposition to the motion for summary judgment, the Paseos filed affidavits by James and Betty Pasco, by three of their adult children, and by a neighboring property owner. All of the affidavits averred that the City had never repaired, patched, striped, or edged the road since it was constructed. Mr. Pasco recounted that the City had swept the street only once, in 1999, and had cleaned out the drain in 2003. He further asserted that the only sign on the road was a “Dead End” sign located approximately 200 feet from his property.

After a hearing, the circuit court granted summary judgment for the City because the Paseos had not asked to be relieved from their admission that the City had maintained Douglas Road. The court entered a summary final judgment in the City’s favor on the Paseos’ claims. The judgment also declared that the portion of the road traversing the Paseos’ property was deemed to be dedicated to the public. This was done apparently by stipulation or without objection, for the City had not pleaded a claim for affirmative relief.

“The movant for summary judgment bears the burden of demonstrating conclusively that the nonmoving party cannot prevail. If the record raises even the slightest doubt that an issue might exist, summary judgment is precluded.” Fatherly v. Cal. Fed. Bank, FSB, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997). On appeal from a summary judgment, all facts and inferences are viewed in the light most favorable to the nonmoving party. Valk v. J.E.M. Distribs. of Tampa Bay, Inc., 700 So.2d 416, 419 (Fla. 2d DCA 1997).

Section 95.361 creates a presumption that a road is dedicated to the public when it was both constructed by a governmental entity and “maintained or repaired continuously and uninterruptedly for 4 years” by the governmental entity. § 95.361(1) (emphasis added). The statute is strictly construed, Balbier v. City of Deerfield Beach, 408 So.2d 764 (Fla. 4th DCA 1982), and failure to meet all of the statutory elements defeats a dedication under the statute, Hancock v. Tipton, 732 So.2d 369, 372 (Fla. 2d DCA 1999).

The roadway must, in the first instance, have been constructed, in the sense of built or made, by the public entity so that at a definite point in time it can be said that construction of a road has occurred. The road must be continuously and uninterruptedly maintained or repaired for four years. The statutory requirements are designed to put the legal title holder on notice both as to the commencement of the four-year period (construction) and as to the continued assertion of the adverse claim for four years (repair and maintenance).

St. Joe Paper Co. v. St. Johns County, 383 So.2d 915, 917 (Fla. 5th DCA 1980).

There was no dispute that the City constructed the road. To establish the absence of disputed facts for the remainder of its case, the City relied heavily on the Paseos’ admission that the City maintained the road since its construction. But this fell far shy of establishing the statutory requirements for a presumption of dedication. Section 95.361(1) requires more than occasional, or even periodic, maintenance or repair; it requires continuous and uninterrupted maintenance or repair. See Cont’l Ins. Co. v. Belflower, 355 So.2d 840, 840 (Fla. 1st DCA 1978) (reversing conclusion that road was dedicated to county under section 95.361 when “there was an entire absence of evidence that even these desultory activities [of cutting the road and twice causing shell to be placed on portions] occurred within four years, or that the county performed any inspection or repair ‘continuously and uninterruptedly for four years’ on what otherwise must be regarded as a private road”).

In their response to the request for admissions, the Paseos acknowledged that the City had maintained the road since its construction. But they did not admit— indeed, the City’s own request for admissions did not assert — that the road had been maintained continuously and uninterruptedly. In fact, the Paseos and their neighbors specifically denied that this had been done. They described with particularity the City’s very few acts of maintenance or repair over the years. Thus, there are genuine issues of disputed fact regarding whether the City had maintained the road “continuously and uninterruptedly.” Therefore, the City was not entitled to judgment as a matter of law. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly, we reverse.

Final summary judgment reversed and remanded for further proceedings.

WHATLEY and SILBERMAN, JJ., Concur.


author: FARNELL, DEE ANNA, Associate Judge.

text:
    Laura SOSTRE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5909.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   FARNELL, DEE ANNA, Associate Judge.

Laura Sostre challenges the revocation of her community control. Because two of the four alleged violations were not supported by competent, substantial evidence, we reverse and remand for further consideration.

On November 8, 2004, Ms. Sostre pleaded guilty to purchasing cocaine and obstructing or opposing an officer with violence. On March 3, 2005, the trial court sentenced her to fifteen years’ imprisonment on the first count and five years’ imprisonment on the second count, concurrent. The sentence was suspended, and she was placed on two years’ community control to be followed by three years’ probation.

On September 15, 2005, Ms. Sostre’s community control officer (CCO) filed an affidavit alleging one violation of condition twelve and three violations of condition nine of her community control. The relevant provisions state:

9. You will promptly and truthfully answer all inquiries directed to you by the court or your officer, and allow the officer to visit you in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.
⅜: ⅜; ⅜ ⅜
12. You will remain confined to your approved residence except for one-half hour before and after your approved employment, public service work or any other special activities approved by your community control officer.

In count one of the affidavit of violation, the CCO alleged that Ms. Sostre had violated condition twelve by failing to remain confined to her approved residence. This allegation was based on the CCO’s personal observation of Ms. Sostre away from her approved residence at an unauthorized time and an interview with Ms. Sostre’s brother, who stated that he did not know where his sister was. Counts two through four of the affidavit alleged three violations of condition nine based on failing to comply with all lawful instructions of the community control officer by not being at home without permission, lying about her whereabouts by stating, “I was at home sleeping” when the CCO had personally seen her outside on a public street at that time, and lying about her whereabouts by telling her CCO that she had been sleeping at a neighbor’s house. The pertinent date of these violations was September 7, 2005.

With respect to count three of the affidavit, the record contains no evidence supporting the allegation that Ms. Sostre made the statement, “I was at home sleeping.” The CCO’s affidavit explains that Ms. Sostre’s brother called and left a message on the CCO’s office phone stating that Ms. Sostre was at home asleep. The CCO’s testimony at the violation hearing was the same: “He left a message at the office saying that she was sleeping in the back ... I knew he was lying because I had just seen her walking up the street.” Nowhere in the CCO’s testimony does she say that Ms. Sostre told her she was asleep in her own house; this conclusion appears to be based entirely on the statement of Ms. Sostre’s brother. Therefore, the trial court’s finding that Ms. Sostre violated condition nine by claiming she was home sleeping was not supported by competent, substantial evidence.

With respect to count four of the affidavit, the CCO testified that Ms. Sostre called her on September 8, 2005, and told her she had been sleeping at a neighbor’s. At the hearing, the CCO stated, “She was just trying to explain to me where she was. She said she was sleeping at a neighbor’s .... So then I—when she called me I just told her I didn’t want to talk to her.... ”

Ms. Sostre testified that after she left the CCO’s office on September 7, 2005, she went home, but her brother wouldn’t let her in the house so she went to a neighbor’s house. She had left the neighbor’s house and was enroute to her home when the CCO observed her on the street. When she arrived home, her brother informed her that the CCO had just been there.

The CCO testified only that she had spoken with Ms. Sostre’s brother and determined that Ms. Sostre was not at home and later saw Ms. Sostre on the street. This observation does not refute Ms. Sos-tre’s claim that she had slept at a neighbor’s residence. In fact, based on the record, the statement was more likely true than not. As such, the trial court’s finding that Ms. Sostre violated condition nine by claiming she was sleeping at a neighbor’s residence was not supported by competent, substantial evidence.

In order to revoke a defendant’s community control, a violation must be willful and substantial and must be supported by the greater weight of the evidence. Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003). We conclude that counts three and four of the CCO’s affidavit alleging violations of condition nine by lying to the CCO are not supported by the evidence in this record.

The trial court’s order states only that it found Ms. Sostre in violation of conditions nine and twelve but fails to delineate upon which of the four counts in the violation affidavit the trial court relied in reaching its decision. However, the trial court stated during the hearing that it found Ms. Sostre in willful violation of all the conditions alleged in the affidavit. Because it is unclear from the record whether the trial court would have revoked Ms. Sostre’s community control based solely upon the violations of counts one and two of the affidavit, the order must be reversed. Davis v. State, 862 So.2d 931, 934-35 (Fla. 2d DCA 2004). On remand, the trial court may reconsider whether to revoke Ms. Sostre’s community control based upon the remaining two violations and, if so, the sentence to be imposed.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CANADY, JJ., Concur.

      . We also express concern regarding the CCO's apparent willingness to attribute to Ms. Sostre, in quotes, a statement that Ms. Sostre, according to the record, never made.


text:
    The PLACE AT VERO BEACH, INC., a Florida corporation, Appellant, v. Patricia HANSON, as Personal Representative of the Estate of Albert Williams, deceased, Appellee.
    No. 4D06-21.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.

      Michael T. Tomlin of DeMahy, Labrador, Drake & Payne, P.A., Coral Gables, for appellant.
    David M. Carter of Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., Vero Beach, and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   BATEMAN, THOMAS H., Ill, Associate Judge.

Appellant, The Place at Vero Beach, (“the Place”) appeals an order denying its motion to compel arbitration and stay litigation. The Place was sued by Appellee, Patricia Hanson, individually and as personal representative of the estate of the deceased, Albert Williams. Williams was a patient at the Place, an assisted living facility, at the time of his death. The parties attempted mediation to resolve the case, and after the mediation failed, the Place filed a motion to compel arbitration and to stay the litigation. When Williams became a resident at the Place, the parties signed a Resident Admission Agreement (the Agreement) as part of the admissions process. The Agreement had a dispute resolution clause and arbitration was listed as one of the methods of resolution. The Agreement designated the American Health Lawyers Association (“AHLA”) as the arbitration administrators. Following a hearing on the motion, the trial judge determined the burden of proof required by the AHLA impermissibly conflicted with the Florida Nursing Home Residents Act (“FNHRA”). The AHLA rules required that intentional or reckless misconduct by the Place be proven by clear and convincing evidence, while the FNHRA’s required burden of proof is preponderance of the evidence. The trial court found the clause designating the AHLA as the administrators of the arbitration was not sev-erable from the Agreement and denied the motion for arbitration. We agree with the trial court’s ruling and affirm.

An order denying a motion to compel arbitration is reviewed de novo. King Motor Co. of Ft. Lauderdale v. Jones, 901 So.2d 1017 (Fla. 4th DCA 2005). “In determining whether a dispute is subject to arbitration, courts must consider three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Id.

In this case, the Agreement’s arbitration provision provides:

Any disputes not settled by mediation within 60 days after a mediator is appointed shall be resolved by binding arbitration administered by the Alternative Dispute Resolution Service of the American Health Lawyers Association, and judgment may be entered in any court having jurisdiction thereof ... This agreement shall be governed by and interpreted in accordance with the laws of the State of Florida ... The arbitrator(s) may award compensatory and punitive damages, and with respect to punitive damages arising under Chapter 400, Florida Statutes, [Nursing Home Resident’s Act] or abuse of the elderly, such punitive damages shall comply with the provisions of Florida Statutes 400.023(7) and (8) and Florida Statutes 768.735.

This court’s recent decision in Blankfeld v. Richmond Health Care, Inc., sheds light on the issue before us. 902 So.2d 296 (Fla. 4th DCA 2005). The arbitration provision in Blankfeld stated: “[A]ny action, dispute, claim or controversy of any kind ... now existing or hereafter arising between the parties ... shall be resolved by binding arbitration administered by the [AHLA].” Id. at 297-98. This court determined that AHLA Section 606 rendered the provision unenforceable. Id. at 298. Section 606 provides:

[T]he arbitrator may not award consequential, exemplary, incidental, punitive or special damages against a party unless the arbitrator determines, based on the record, that there is clear and convincing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual or presumed.

Id. However, the Nursing Home Resident’s Act, found in section 400.028(2), Florida Statutes, calls for a preponderance of the evidence standard. Based on this difference, this court determined that the arbitration provision was unenforceable.

Unlike the provision in Blankfeld, the provision in the Agreement in this case stated it was governed by Florida law, addressed compensatory or punitive damages or attorney’s fees, and referenced Chapter 400. The Place argues that the language in the provision stating, “[t]his agreement shall be governed by and interpreted in accordance with the laws of the State of Florida,” means the parties have entered into a written agreement to vary the AHLA rules. The Place also argues that the language stating that an award which is tied to a violation of Chapter 400 should be in accord with Chapter 400, incorporates Florida law into the agreement. We disagree.

The arbitration provision in the Agreement does not constitute a written agreement to vary the AHLA rules. The language regarding Florida law is standard and is meant to guide an arbitrator in interpreting the rest of the agreement. Moreover, contrary to the Place’s assertion, the provision does not read “arbitration ‘shall be governed by and interpreted in accordance with the laws of the state of Florida.’ ” We find the trial judge was correct in finding that the arbitration' provision is in conflict with the NHRA and is unenforceable.

The Place argues further that the trial court, using the severability clause in the agreement, should have severed the portion of the arbitration agreement which detailed that the AHLA and its rules should be used in arbitrating any disagreement. “As a general rule, contractual provisions are severable, where the illegal portion of the contract does not go to its essence, and, with the illegal portion eliminated, there remain valid legal obligations.” Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1024 (Fla.2005).

The trial judge determined, unlike the agreement addressed in Fonte, he would have to rewrite the terms of the Agreement to give it effect. We find the trial court correctly refused to sever portions of the arbitration clause. While the Agreement did contain a severability clause, the clause allows provisions, not portions of provisions, of the Agreement to be severed. See Voicestream Wireless Corp. v. U.S. Comm,., Inc., 912 So.2d 34 (Fla. 4th DCA 2005) (limitation of liability clause and exclusion of right to appeal arbitrator’s decision were separate from the arbitration agreement and severable from the agreement). While in some cases offending sentences can be severed from a provision, these are instances in which there is no “interdependence between the arbitration clause and the remaining clauses of the agreement which would [require] the trial court to rewrite or ‘blue pencil’ the agreement.” Healthcomp Evaluation Serv. Corp. v. O’Donnell, 817 So.2d 1095, 1097 (Fla. 2d DCA 2002). In this case, the arbitration clause is built around the Place’s intent that the AHLA and its rules would control the arbitration. The trial judge correctly determined that he would be unable to simply sever a sentence from the provision, but would be forced to add the requirements that Chapter 400 and the Florida rules of arbitration would apply.

Based on the foregoing, we affirm the trial court’s denial of the motion to compel arbitration and to stay litigation.

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


author: MAY, J.

text:
    Michael WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4848.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction for first degree murder and life sentence without parole. He raises two issues. The first issue concerns the admission of a statement that the victim possessed $10,000 in cash; the second issue concerns the trial court’s refusal to allow the defendant to try on a black leather cap found at the crime scene. We find no merit in either issue and affirm.

The murder occurred when the defendant and others attempted to rob the victim. The victim was uncooperative and, when he tried to hold on to the leg of one of the assailants, he was shot and killed. The defendant argues that a statement made by a relative of the victim to a co-defendant, who in turn told the defendant, who conveyed the statement to the witness, constituted triple hearsay and should have been excluded. The State responds that the statement did not constitute hearsay because it was used to show the defendant’s motive in robbing the victim and not the truth of the statement.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2006). Out-of-court statements used to prove a material fact are admissible, however, when the probative value outweighs any prejudicial effect. Foster v. State, 778 So.2d 906, 915 (Fla.2000) (citing State v. Baird, 572 So.2d 904, 907 (Fla.1990)); § 90.403, Fla. Stat. (2006).

Here, whether the victim possessed $10,000 in cash when the crime was committed was not material. However, the defendant’s motive to commit the crime was both material and relevant. Because the statement was introduced to prove the defendant’s motive, it was not hearsay. See, e.g., Koon v. State, 513 So.2d 1253, 1255 (Fla.1987) (using out-of-court statement to show formation of motive). The trial court did not err in admitting the testimony concerning the victim’s possession of $10,000 in cash.

The second issue concerns the trial court’s refusal to allow the defendant to try on a black leather cap found at the crime scene. The defendant argues that his defense of mistaken identity would have been supported by showing that the cap did not fit. However, because the defendant’s hair was substantially longer at the time of trial, the State claimed the demonstration would not have been probative of whether the cap fit at the time of the crime.

A trial court’s ruling on a reenactment or experiment is reviewed for an abuse of discretion. Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962, 964-65 (Fla. 3d DCA 1976); accord Shennett v. State, 937 So.2d 287, 292 (Fla. 4th DCA 2006). The defendant bears the burden of laying “a proper foundation for its admission by showing a similarity of the circumstances and conditions.” State v. Arroyo, 422 So.2d 50, 52 (Fla. 3d DCA 1982) (citing Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981)).

The trial court carefully explored this issue by deferring its ruling, allowing both sides to brief the issue, and by conducting a mock reenactment outside the presence of the jury. Ultimately, the trial court found that the length of the defendant’s hair at the time of trial severely impaired his ability to pull the cap down onto his head. Thus, the demonstration was not similar to the circumstances and conditions at the time of the crime. The court further found that the demonstration would cause jury confusion. We agree and find no error in the court’s ruling on this issue.

Affirmed.

STONE and FARMER, JJ., concur.

      . Because there was competent, substantial evidence that DNA retrieved from the inner band of the cap matched the defendant’s DNA profile, we further conclude that any error would have been harmless. State v. DiGuilio, 491 So.2d 1129, 1136 (Fla.1986).


author: STONE, J.

text:
    Joel MILES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-80.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, As-

      sistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse Miles’ conviction for possession of cocaine. The record fails to support the trial court order denying his motion to suppress.

Miles was a passenger in a car stopped for a traffic violation. A check of Miles’ identification revealed the existence of an outstanding warrant for his arrest, which Miles now claims was resolved, in open court, prior to the date of the stop. Miles was arrested, taken into custody, and a search revealed he possessed cocaine.

The trial court found that the officer had confirmed there was an active warrant and acted in good faith. The testimony reflects that after the initial records check disclosed that Miles had an active warrant for his arrest, the officer waited until the warrant was “confirmed” before taking him into custody.

Miles testified that in 2003, he was issued a ticket for driving on a suspended license, but claims it was subsequently dismissed in open court. As to this issue, the only documentary evidence submitted to the court is illegible.

The initial burden on a motion to suppress an illegal search is on the defendant to make an initial showing that the search was invalid. When that prima facie showing is made, however, the burden shifts to the state to prove that the search is valid. Black v. State, 383 So.2d 295, 297 (Fla. 1st DCA 1980). See also Andress v. State, 351 So.2d 350 (Fla. 4th DCA 1977); Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000); State v. Setzler, 667 So.2d 343 (Fla. 1st DCA 1995).

In Arizona v. Evans, 514 U.S. 1, 3, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), the court recognized that the exclusionary rule does not require suppression of evidence if an officer acts in reliance on police records which indicate the existence of an outstanding arrest warrant, even if that warrant is later determined to be invalid and the error is attributable to court personnel. The court determined that there is no reason to apply the exclusionary rule to prevent clerical mistakes by court personnel. Id. at 15-16, 115 S.Ct. 1185. The court declined to address whether suppression would be required if police personnel were responsible for the error. Id. at 16 n. 5,115 S.Ct. 1185.

In State v. White, 660 So.2d 664, 665 (Fla.1995), the defendant was stopped for a traffic offense; a police officer discovered there was an outstanding arrest warrant for the defendant. The officer confirmed the existence of the warrant, arrested the defendant, and discovered contraband. Id. After the officer transferred the defendant to the sheriffs office, a review of the hard copy of the warrant showed it had been served four days prior to the defendant’s arrest. Id. The error resulted from an incorrect showing in the computer in the sheriffs office. Id. at 666. The court concluded that the good faith exception was not applicable where “it was within the collective knowledge of the sheriffs office that the warrant was void.” Id. at 668. The court reasoned that “[sjuppression of evidence seized pursuant to police computer error will encourage law enforcement agencies to diligently maintain accurate and current computer records.” Id. at 667 (footnote omitted).

In Frierson v. State, 851 So.2d 293 (Fla. 4th DCA 2003), quashed on other grounds, 926 So.2d 1139 (Fla.2006), we recognized that White did not preclude application of the good faith exception where the mistake in the validity of a warrant was not attributable to the police. The state asserts that such appears to be the case here, as the officer “confirmed” that the warrant was outstanding. The state introduced no evidence to refute Miles’ claim that the warrant was dismissed, but argued that the error, by inference, must be that of the clerk of court. The state reasons that since Miles says he turned himself in, bonded out, and appeared in open court, apparently incident to a related charge, the warrant was not served, and the clerk failed to notify law enforcement to delete the warrant.

We recognize that the order should be upheld if the mistake, if any, was attributable to the trial court clerk or judiciary. Here, it simply is not clear that this is the case. The burden, however, is on the state. We conclude that the state has failed to meet its burden, as the state has failed to show that the error was not attributable to law enforcement.

As to all other issues raised, we find no reversible error or abuse of discretion. We, therefore, reverse the conviction and remand for further proceedings.

FARMER and MAY, JJ., concur.


text:
    Sylvia JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2216.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR WRITTEN OPINION

PER CURIAM.

The defendant appeals an order revoking her probation. She argues the trial court erred in admitting a lab report concerning the results of her urinalysis exam in derogation of Crawford v. Washington. We disagree and affirm.

This court recently joined the First and Fifth District Courts of Appeal in holding that Crawford does not apply in community control and probation revocation proceedings. Jackson v. State, 931 So.2d 1062, 1063 (Fla. 4th DCA 2006) (certifying the issue to the Supreme Court of Florida). As we did in Jackson, we certify the question to the Supreme Court of Florida:

DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), APPLY IN COMMUNITY CONTROL AND PROBATION REVOCATION PROCEEDINGS?

Affirmed.

STONE, FARMER and MAY, JJ., concur.

      . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).


author: KLEIN, J.

text:
    Diego ESPIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2548.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Michael C. Minardi of Michael Minardi, P.A., Fort Lauderdale and Joseph Ciehow-ski of Joseph Cichowski, P.A., Ft. Lauder-dale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Detectives for the City of Hallandale, which is in Broward County, arrested defendant just over the border in Dade County, for a traffic violation they observed in Broward. They failed, however, to comply with a statute providing that a person arrested under such circumstances shall be immediately taken before a judge of the county in which the arrest is made. After finding narcotics, the detectives took the defendant back to Broward to be booked. We hold that the violation of the statute does not require suppression of the contraband produced by the search of appellant’s person or vehicle.

The detectives observed the defendant’s traffic infraction in Hallandale and followed him, but because of heavy traffic, they were unable to pull him over for a traffic stop until he had crossed over the county line into Dade County. Defendant consented to a search, narcotics were found, and defendant was arrested.

Section 901.25(3), Florida Statutes (2003) provides:

If an arrest is made in this state by an officer outside the county within which his or her jurisdiction lies, the officer shall immediately notify the officer in charge of the jurisdiction in which the arrest is made. Such officer in charge of the jurisdiction shall, along with the officer making the arrest, take the person so arrested before a trial court judge of the county in which the arrest was made without unnecessary delay.

Defendant filed a motion to suppress grounded on the fact that he had not been taken before a Dade County judge, as the statute requires, and the trial court denied the motion. Defendant appeals, but has cited no authority on point. The state relies on an opinion of the circuit court for Pinellas County sitting in its appellate capacity. State v. Yettaw, CRC 00-19056 CFANO (Fla. 6th Cir.Ct. Oct. 5, 2001). The three judge appellate panel in Yettaw concluded that the purpose of the statute is to ensure that defendants are not held for an unreasonable time after arrest, and found that the defendant in that case was not held for an unreasonable time. The court held that the violation of the statute did not affect the validity of the arrest.

In this case the defendant does not argue that the violation of the statute resulted in a delay or any other type of prejudice. Nor did it relate to the narcotics which were found. We agree with Yet-taw’s construction of the statute, and conclude the evidence should not be suppressed. We have considered the other issues raised by the defendant and find them to be without merit.

Affirmed.

SHAHOOD, J., and REYES, ISRAEL U., Associate Judge, concur.

      . The decision of the Sixth Circuit is available on the Internet at http://www/jud.6.org under the tabs "Legal Community” and "Opinions.”


text:
    George E. HUFF, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D06-4546.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    George E. Huff, Pompano Beach, pro se.
    No brief for appellee.
   PER CURIAM.

Appellant’s letter filed on March 15, 2007, is treated as the initial brief. Affirmed. See Fla. R.App. P. 9.315(a).

STONE, WARNER and FARMER, JJ„ concur.


author: GROSS, J.

text:
    Larry SCHEELE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-38.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Michael Salnick of Law Offices of Sal-nick & Fuchs, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON MOTION FOR REHEARING

GROSS, J.

We grant appellant’s motion for rehearing, withdraw our previous opinion of March 7, 2007 and substitute the following.

Larry Scheele appeals the denial of his motion for postconviction relief seeking to withdraw his plea after he was sentenced to fifteen years in prison. The basis of Scheele’s motion was that (1) before entering his plea, his lawyer promised him that he would receive no more than ten years in prison, and (2) the trial judge gave him insufficient time to fully consider his straight-up plea to the court. We affirm holding that the record conclusively refutes his claims.

An eight-count information charged Scheele with DUI manslaughter, driving under the influence causing serious bodily injury, three counts of driving under the influence causing injury to person or property, driving in violation of driver’s license restriction, possession of marijuana in excess of twenty grams, and manslaughter by culpable negligence. The charges arose from an incident where Scheele lost control of his vehicle and crashed into a tree, a cast-iron trash bin, and a concrete pole. One passenger died at the scene, another was seriously injured, and three suffered slight injuries.

On March 9, 2005, Scheele entered a guilty plea to all charges except for manslaughter by culpable negligence. The trial judge emphasized to Scheele that the maximum potential sentence for the six crimes to which he was pleading was incarceration for 28 years and 60 days. To make sure that Scheele was aware of this maximum sentence, the judge asked Scheele to repeat the maximum penalty; Scheele responded “28 [years], and 60 days.” In addition to the matters specified

in Florida Rule of Criminal Procedure 3.172(c), the judge asked Scheele whether any promises were made to him to induce his plea:

Court: Has anyone made any promises at all, in connection with this plea?
Defendant: No, ma’am.
Court: Has anyone made any promises at all, in connection with this plea, other than that a Presentence Investigation would be conducted?
Defendant: Yes, no, ma’am.
Court: Someone made other promises? Defendant: No. No, ma’am.
Court: Has anyone promised you anything in particular would happen as a result of your entering this plea?
Defendant: No ma’am.

Scheele told the judge that he was “completely satisfied with the advice and representation” of his attorney. The court warned Scheele that once he pleaded to the court, if he did not like his sentence, he could not take his plea back. After determining that the plea was “freely and voluntarily given,” the judge accepted the plea.

The court held a sentencing hearing almost three months after the plea conference. The judge sentenced Scheele to 15 years in prison with 5 years of probation to run consecutive to the incarceration.

After the sentencing hearing, Scheele timely moved to vacate his plea and sentence, requesting an evidentiary hearing. Scheele’s motion argued that if he had known he could have been sentenced to more than ten years in prison he would not have pled “straight up” in open court. He also contended that he did not have a reasonable time to consider the consequences of his plea. The trial judge denied the motion without an evidentiary hearing.

The issue/question before this court is whether the trial court erred in denying the motion to withdraw plea without a hearing. Misrepresentations by counsel as to the length of time a defendant will serve may be a basis for allowing a defendant to withdraw a guilty plea. See Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (citing State v. Leroux, 689 So.2d 235 (Fla.1996). However, rule 3.170(0 provides that relief may be denied without a hearing “if the record conclusively shows that the defendant is entitled to no relief.” Snodgrass, 837 So.2d at 509 (Fla. 4th DCA 2003) (quoting Simeton v. State, 734 So.2d 446 (Fla. 4th DCA 1999)) see also Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006).

A defendant’s general acknowledgment during a plea conference that no one promised him anything to plead guilty does not conclusively rebut a sworn allegation that the defendant was prompted to enter the plea by his lawyer’s mistaken advice about the length of a sentence or eligibility for gain time. See Leroux, 689 So.2d at 236-37. In Leroux, the defendant claimed that his lawyer misrepresented the amount of time he would actually serve because of gain time credits. The supreme court held that the defendant’s negative response to the trial court’s question of whether anything had been promised to induce his guilty plea did not conclusively refute his postconviction relief claim. Id. at 237.

In Leroux, the supreme court recognized that a plea conference was a significant moment in a case and that some forms of questioning would serve to block later claims of incorrect legal advice about a sentence. The supreme court wrote that “were it to be made clear to a defendant at the time the plea was entered that he could not rely on anyone’s estimated computation of the time the defendant would actually serve, then such a defendant would have no basis to complain later.” Id.

Leroux cited with approval language from Carmichael v. State, 631 So.2d 346, 347-48 (Fla. 2d DCA 1994), that suggests matters that, if included in a plea colloquy, would confront issues that often arise in postconviction relief motions:

We again reiterate that ‘a trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those discussed during the plea colloquy.’ [citation omitted]. It would be a simple matter during the plea dialogue to have the defendant affirm under oath that no one, especially the defendant’s counsel, has made any promises concerning eligibility for any form of early release authorized by law and the actual amount of time to be served under the sentence to be imposed. It would also be beneficial to have the defendant further acknowledge the absence of such promises in a written plea form, if one is routinely used by the judge.

Leroux, 689 So.2d at 237.

In Leroux, the supreme court observed that a “defendant who is informed by the court during the plea colloquy that he may have to serve every day of a ten-year sentence could hardly reasonably rely on counsel’s advice to the contrary.” Id. at 238. Similarly, in this case, the trial judge told Scheele, in no uncertain terms, that he faced a maximum sentence of 28 years and 60 days; Scheele could not reasonably rely on his lawyer’s supposed advice that he faced a maximum sentence of only ten years. A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences. See Iacono v. State, 930 So.2d 829, 831-32 (Fla. 4th DCA 2006) (recognizing that defendants “are bound by their sworn answers” during a plea colloquy).

On the remaining claim, the record conclusively refutes Scheele’s claim that he was not given enough time to consider his plea. The trial court conducted a detailed and thoughtful plea conference where Scheele had ample opportunity to ask questions or request additional time to weigh his decision to plead guilty.

WARNER and POLEN, JJ., concur.