author: ORFINGER, J.

text:
    Robert C. GLENNON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3739.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Rehearing Denied Sept. 27, 2006.
    Loren D. Rhoton, of Rhoton & Hayman, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Robert C. Glennon appeals an order granting in part, and denying in part, his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), based on the holdings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Mr. Glennon, convicted of sexual battery, contends that the inclusion of sexual penetration points, without the requisite finding by the jury, improperly enhanced his sentence.

Mr. Glennon was convicted of sexual battery in 2003 for an offense committed in September 1998. His conviction was affirmed by this Court and became final in February 2004. Glennon v. State, 866 So.2d 1228 (Fla. 5th DCA 2004) (Table). In his motion to correct sentence, Glennon argued that the inclusion of forty sentencing points for sexual penetration was improper. Glennon’s original sentence included both sexual contact and sexual penetration points. At resentencing, the trial court deleted the sexual contact points, but retained the sexual penetration points, and imposed a sentence of 93 months in prison based on the then existing sentencing guidelines.

Apprendi stands for the proposition that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Blakely clarified that the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04, 124 S.Ct. 2531. The State agrees that Appren-di decided in 2000, applies to Glennon’s conviction, which was not final until 2004. While the parties disagree regarding the applicability of Blakely, we need not decide that issue because the sentence imposed, 93 months, could have been imposed without any additional findings.

Mr. Glennon concedes that based on the nature of his offense, the ■ inclusion of 18 points for sexual contact is appropriate. Adopting the position advocated by Mr. Glennon, his scoresheet totals 109 points (91 points primary offense + 18 sexual contact points) resulting in a sentencing range of 60.75 months (109-28 x .75) at the low end, to 101.25 months (109-28 x 1.25) at the high end. Consequently, the 93-month sentence imposed did not require any additional findings by the jury. Thus, Apprendi and Blakely are not implicated, and we need not consider their application.

AFFIRMED.

PALMER and TORPY, JJ., concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Christopher CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2841.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2006.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Christopher Cunningham appeals the denial of his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(i) and the denial, in part, of his motion to correct a sentencing error filed pursuant to rule 3.800(b). Because Cunningham was entitled , to have counsel assist him at the hearing on the motion to withdraw plea, we reverse and remand for a new hearing on that motion. We affirm the trial court’s order on the motion to correct a sentencing error without prejudice to any right Cunningham may have to challenge the trial court’s imposition of a habitual offender enhancement in a timely filed rule 3.850 motion. See Williams v. State, 821 So.2d 1267, 1268-69 (Fla. 2d DCA 2002).

A motion to withdraw plea pursuant to rule 3.170(Z) is a critical stage of the proceedings at which a defendant is entitled to counsel. Smith v. State, 849 So.2d 485, 486 (Fla. 2d DCA 2003); Meeks v. State, 841 So.2d 648, 648 (Fla. 2d DCA 2003). Cunningham was not represented by counsel at the hearing on his motion to withdraw plea, and the State acknowledged that it had not provided the public defender’s office with notice of the hearing because it believed Cunningham was not represented.

Nothing in the record reflects that Cunningham’s counsel had sought to withdraw from representation or that counsel had been discharged from representation. Although two identical motions titled “DEFENDANT’S PRO SE MOTION TO WITHDRAW PLEAS” were filed on Cunningham’s behalf, the first paragraph of each motion states that the motion is being filed by “[t]he Defendant, CHRISTOPHER CUNNINGHAM, by and through his undersigned counsel.” Also, Cunningham’s counsel, an assistant public defender, signed both motions. Because Cunningham’s counsel filed a timely motion to withdraw pleas on Cunningham’s behalf, and because counsel had not been discharged from representation as of the time of the hearing on the motion, we reverse and remand with directions that the trial court appoint counsel to represent Cunningham and conduct a new hearing on the motion to withdraw pleas.

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

CASANUEVA and SALCINES, JJ„ Concur.

      . We note that Cunningham signed a handwritten document titled "Motion to Vacate Judgment and Sentence" that his counsel attached to the first motion to withdraw pleas. To the extent that document constitutes a pro se motion to withdraw plea, it would generally be treated as a nullity and stricken because it was filed when Cunningham was represented by counsel and did not contain an unequivocal request to discharge counsel. See Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA), review denied, 891 So.2d 552 (Fla.2004).


author: PER CURIAM.

text:
    Robert A. EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1039.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.

      Robert A. Edwards, Raiford, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Robert A. Edwards petitions for a writ of certiorari seeking review of an unap-pealed order entitled, “Order Denying Relief from a Final Collateral Judgment Based on Fraud upon the Court, Denying Motion To Reopen Judgments Denying Collateral Relief, Denying Motion To Disqualify State Attorney, and Denying Motion To Disqualify Judge Stancil and Judge Hallman.” Since Edwards has unsuccessfully contested the affidavits at issue on more than one occasion, the trial court concluded its order by warning: “Enough is enough.” We agree.

Because the trial court’s perception that Edwards was abusing the legal process appeared correct, this court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Edwards’ response confirmed the correctness of the trial court’s perception — Edwards is indeed attempting to re-argue claims previously raised and rejected. See, e.g., Edwards v. State, 884 So.2d 42 (Fla. 5th DCA 2004) (per curiam affirming denial of sixth rule 3.850 motion). Accordingly, we hold that Edwards is barred from further pro se filings in this court on the basis that his present petition raises a successive claim previously decided on the merits, constituting an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding that defendant’s pro se filings had become frivolous, an abuse of process, and a waste of the taxpayers’ money); Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants).

Thus, in order to conserve judicial resources, we prohibit Edwards from filing with this court any further pro se pleadings concerning Sumter County, Fifth Judicial Circuit Court case number 1985-376-CF. The Clerk of this court is directed not to accept any further pro se filings concerning this case from Robert A. Edwards. Additional pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member of the Florida Bar in good standing. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

PETITION DENIED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

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


text:
    Maurice E. HOLLOMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-652.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Maurice E. Holloman, Sneads, pro se.
    No Response for Appellee.
   PER CURIAM.

In this case, this court issued a show cause order stating: “Maurice Holloman has filed numerous pro se pleadings and appealed many unsuccessful post-conviction motions in his two intertwined cases. He has already been barred from further frivolous pro se pleadings in the trial court.” This court then ordered Holloman to show cause why he should not also be barred from filing further pro se pleadings in this court.

Holloman responded by filing several documents, including a response, an amended response, an amended brief, a Motion To Take Judicial Notice, a Notice of Filing, and two Notices of Supplemental Authority. This scattergun approach of filing as many different pleadings as possible, in as much volume as possible, in as many courts as possible, is typical of the entire procedural history of Holloman’s ten-year-old case and we conclude that it is time for these filings to stop.

First, Holloman argues that, because Count 4 of his final judgment was clerically amended, he is entitled to attack his convictions. This argument is meritless. A review of the record ably demonstrates that Holloman has fully litigated his case.

Second, Holloman asserts that the trial court did not bar him from filing further pro se pleadings “based on what this court has found, rather, it was the state that suggested in its Response that Appellant should be barred.” We conclude that whatever reasons were discussed in the trial court, that has nothing to do with the fact that Holloman has tried this court’s patience to its limits.

Accordingly, in order to conserve judicial resources, we prohibit Holloman from filing with this Court any further pro se pleadings concerning Orange County, Ninth Judicial Circuit Court Case No. 1996-CF-2527. The Clerk of this court is directed not to accept any further pro se filings concerning this case from Maurice E. Holloman, and any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

PLEUS, C.J., PALMER, and ORFINGER, JJ., concur.


author: COPE, C.J.

text:
    Louis MONTELLO, Appellant, v. Sonia Jucht MONTELLO, Appellee.
    Nos. 3D05-1615, 3D04-788, 3D04-1094.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Montello & Friedman and Daniella Friedman, Miami, for appellant.
    Burnstein & Associates and Bernardo Burnstein, for appellee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   COPE, C.J.

These are three consolidated appeals arising out of dissolution of marriage proceedings. We affirm in part and vacate in part.

The former wife, Sonia Jucht Montello appeals, and the former husband, Louis Montello, cross-appeals the final judgment of dissolution of marriage. On the former wife’s appeal, we conclude that the former wife has not shown any reversible error to exist with regard to the final judgment. We reach the same conclusion regarding the cross-appeal by the former husband of the visitation order.

The former husband filed a motion seeking to hold the former wife in indirect criminal contempt. None of the procedures outlined in Florida Rule of Criminal Procedure 3.840 was followed. The court entered a hybrid order which had some characteristics of a criminal contempt order and some characteristics of a civil contempt order, for it included a purge provision.

We have no quarrel with that part of the trial court’s order which admonishes both parties to cooperate with each other, finds that the former wife had violated the court’s most recent temporary visitation order, and admonishes her that she must comply. However, an indirect criminal contempt and a civil contempt serve two distinct functions. See Parisi v. Broward County, 769 So.2d 359, 364-65 (Fla.2000). The hybrid order now before us cannot stand. See id. at 365-67; Rylander v. Teschouva, 877 So.2d 7, 8 (Fla. 3d DCA 2004). Because the incidents leading up to the contempt order occurred several years ago, no useful purpose would be served by remanding for a new contempt hearing. Accordingly we vacate the contempt order.

The former husband appeals a final judgment awarding the former wife attorney’s fees for services rendered during the matrimonial proceedings. We address the former husband’s claim that the trial court did not have jurisdiction to entertain the motion on account of Florida Rule of Civil Procedure 1.525.

The final hearing was conducted by the general magistrate, who entered a report and recommendation on August 25, 2003. In paragraph twenty-three, the general magistrate’s report recommended that the court reserve jurisdiction to determine entitlement and amount of legal fees to be awarded, if any. On September 5, 2003, the former wife filed her motion for attorney’s fees and costs (“the former wife’s attorney’s fee motion”). On September 19, 2003, the former husband filed his motion for attorney’s fees. On March 1, 2004, the trial court approved the report of the general magistrate (which included the recommendation for reservation of jurisdiction) and entered a final judgment of dissolution of marriage.

Thereafter the former wife did not file an additional motion for attorney’s fees. Instead, the former wife requested a hearing on her already-pending motion on which there had been a reservation of jurisdiction.

In December 2004, the general magistrate conducted a hearing on the parties’ attorney’s fee motions. In February 2005, the general magistrate entered a report and recommendation awarding attorney’s fees to the former wife and also requiring the former husband to pay the fees of the expert accountant. The general magistrate rejected the former husband’s request for attorney’s fees.

In March 2005, the Florida Supreme Court issued its opinion in Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla.2005). The court adopted new Florida Family Law Rule of Procedure 12.525, effective immediately.. The new Rule states, “Florida Rule of Civil Procedure 1.525 shall not apply in proceedings governed by these rules.” 897 So.2d at 467.

In June 2005, the trial court approved the report and recommendation of the general magistrate and rejected the former husband’s exceptions to that report. The former husband has appealed.

We agree with the First District Court of Appeal that new Rule 12.525 is applicable to cases that were pending on the effective date of the new rule. See Smith v. Smith, 902 So.2d 859, 863 (Fla. 1st DCA 2005). Rule 12.525 became effective on March 3, 2005, see 897 So.2d at 467, which was after the date of the general magistrate’s report but before the date of the trial court’s order approving the general magistrate’s report. Since this case was pending on March 3, 2005 it follows Rule 12.525 applies here and Rule 1.525 does not apply.

We believe our interpretation is supported by the Florida Supreme Court’s decision in Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006). The Saia case involved an interpretation of Rule 1.525. The Saia opinion points out that Rule 1.525 took effect January 1, 2001. According to Saia, this means that Rule 1.525 “applies to all cases pending on or filed after January 1, 2001.” 930 So.2d at 600 (emphasis added).

The Saia opinion’s reasoning should be applicable to the amendment to Rule 12.525. As already stated, the Rule 12.525 amendment took effect on March 3, 2005. Under the logic of Saia, the Rule 12.525 amendment applies to all cases pending on, or filed after, March 3, 2005. We certify direct conflict with Ponce v. Minda, 923 So.2d 1250 (Fla. 2d DCA), review pending, No. SC06-803 (Fla. filed April 24, 2006), Italiano v. Italiano, 920 So.2d 694 (Fla. 2d DCA), review pending, No. SC06-419 (Fla. filed March 3, 2006), Nicoletti v. Nicoletti, 902 So.2d 215 (Fla. 2d DCA 2005), and Reddell v. Reddell, 900 So.2d 670, 672 n. 1 (Fla. 5th DCA 2005).

Turning to the merits, we affirm the attorney’s fee judgment.

Affirmed in part, vacated in part; direct conflict certified.

      . On March 24, 2004 the former husband filed a supplemental motion for attorney’s fees which again requested attorney's fees for all of the trial court proceedings.


author: ROTHENBERG, Judge.

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellants, v. A.Q., Appellee.
    No. 3D05-1746.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Calianne P. Lantz; Hillary S. Kambour, for appellants.
    Kevin Coyle Colbert, Miami, for appel-lee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

The Florida Department of Children and Family Services (“DCF”) appeals an order involuntarily dismissing its petition for termination of parental rights. As we agree with DCF that the trial court’s ruling, that it is not in the best interests of the children to terminate their father’s parental rights, is not based upon competent substantial evidence, we reverse.

A.Q. is the father of A.Q. and J.Q. (“the children”). The children were adjudicated dependent in 1995, based upon the trial court’s findings by clear and convincing evidence that: (1) the father committed domestic abuse against the mother, which was witnessed by the children, causing the mother to initiate three restraining orders against the father; (2) the father committed physical abuse against the children by beating them with a belt, hitting them, and biting them, and on one occasion when the defendant’s sister attempted to intervene, he told her that they were his kids and he could do anything he wanted with them; and (8) the father has serious emotional problems which significantly interfere with his ability to provide proper care for the children, as evidenced by his lack of an appropriate self-control mechanism, and his extremely hostile and aggressive personality; and his lack of insight regarding his problems.

After the children were adjudicated dependent, they were placed in the custody of the father’s mother and sister. After the children’s custodial placement, the father violated no-contact orders by going to the residence of the custodians on numerous occasions when he had been ordered not to do so, resulting in his incarceration. He was given a case plan, but failed to complete it. The father last appeared in court in Miami in 1996, after which he disappeared, and his whereabouts were unknown until he reappeared in 2004. During this period of time he has had no involvement with the children, has provided no financial support for the children, and did not contact the children’s.custodians or anyone else to inquire as to their well-being.

After the father’s return to Miami, DCF filed a petition for termination of parental rights as to both the mother and the father. The mother voluntarily surrendered her rights. The father appeared in court with the intention of voluntarily surrendering his rights. Although he told the trial court that he wished to terminate his parental rights, when the trial court asked him if he believed that the termination of his parental rights was in the best interests of the children, he replied “no.” Based upon this response, the trial court refused to accept his surrender and held a hearing to determine whether to terminate the father’s rights. At the hearing, the aunt, who is one of the children’s custodians, testified that she loves the children and is willing to adopt them. The guardian ad litem testified that the children were thriving in their placement, that they were bonded to their custodians, and she recommended termination of the father’s parental rights.

The trial court, dismissed the petition to terminate the father’s rights, finding that termination was not in the manifest best interests of the children, but ordered that the father have no contact with the children until further order of the court.

“An appellate court may reverse the trial court’s order denying a petition to terminate parental rights when the denial is not supported by competent substantial evidence and is not in the best interests of the children.” Dep’t of Children & Families v. K.F., 916 So.2d 948, 950 (Fla. 4th DCA 2005); see also State, Dep’t of Children & Family Servs. v. A.D., 904 So.2d 480, 482 (Fla. 1st DCA 2005); Dep’t of Children & Families v. C.F., 788 So.2d 988 (Fla. 3d DCA 1998). Based on the following factors, we conclude that the trial court’s order denying the petition to terminate is not supported by competent substantial evidence: (1) the father committed acts of domestic abuse against the mother of the children, in the presence of the children; (2) the father committed acts of child abuse against his children; (3) the father was found to have poor self-control, an explosive personality, and a lack of insight regarding his problems; (4) the father abandoned his children for many years while they were living with court-appointed custodians; (5) the father failed to complete his case plan; (6) the father still has not achieved the level of confidence from which the trial court will even allow him supervised visitation with his children; and (7) the children are in a stable and loving environment where they are thriving, and with a relative who wishes to adopt them.

Abandonment is clearly grounds for termination of parental rights. See § 39.806(l)(b), Fla. Stat. (2005). It is undisputed that the father disappeared for many years without providing any financial support for the children or contacting the children’s custodians or anyone else during his absence to inquire about the children. This was clearly a willful rejection of his parental responsibilities and constitutes abandonment under section 39.01, Florida Statutes (2005). In fact, on January 26, 2005, the trial court entered a Judicial Review Order finding that that father abandoned the children for a period of over five years-.

Termination of parental rights • is also appropriate where the children are adjudicated dependent, a case plan is filed with the court, and the parent fails to substantially comply with the case plan for a period of twelve months, thus evidencing continuing abuse, neglect, or abandonment. See § 39.806(l)(e), Fla. Stat. (2005). In the instant ease, it is undisputed the children were adjudicated dependent on August 28, 1995, and that a case plan was entered on January 29, 1996, which the father did not comply with within the twelve months provided.. . It was not until several years later that the father even began to comply with some ,of the tasks in his case plan, and had not completed the case plan nine years later on May 25, 2005, when the trial court dismissed the petition. Thus, the evidence overwhelmingly establishes that the father failed to substantially comply with his case plan within twelve months of its entry, and, in fact, has failed to complete it within nine years of .its entry.

As the trial court recognized, the children were adjudicated dependent based upon serious findings of physical abuse that the father inflicted upon the children and upon their mother' in the presence of the children. Instead of attempting to comply with his case plan in order to be reunited with his children, the father abandoned his children, left Miami, and during his absence did not provide them with any support and did not attempt to inquire about their well-being. The father’s mother and sister have taken care of the children as their custodians since 1995. The children have bonded with them, they are thriving under their care, and one of the custodians, the aunt, wishes to adopt the children. Despite these facts, instead of terminating the father’s parental rights, the trial court ordered the father to continue to have no contact with the children, and dismissed the petition for termination. The father is, however, the children’s father in name only, since he has provided and continues to provide them with nothing. Instead of achieving permanency for the children, by allowing them to be adopted by their aunt, the trial court’s ruling leaves the children in a state of limbo, with a father who cannot see them and the children living with loving family members, including the aunt, who is .unable to adopt them. We therefore conclude that the trial court’s findings, that termination of the father’s parental rights is not in the children’s best interest is unsupported by the record. Accordingly, we reverse and remand for further proceedings consistent with this opinion. See § 39.81,0, Fla. Stat. (2005); K.F., 916 So.2d at 950; C.F., 788 So.2d at 988.

Reversed and remanded.

      . These findings were based on the psychological evaluation performed as well as his demonstrated behavior.


text:
    John W. MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1873.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 12, 2006.
    John W. Miller, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   PER CURIAM.

A claim of vindictive sentencing cannot be raised by a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). See Morales v. State, 909 So.2d 478 (Fla. 3d DCA 2005); Taylor v. State, 897 So.2d 495 (Fla. 3d DCA 2005). Treating the motion as a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and assuming no procedural bar, the transcript excerpts cited by defendant-appellant Miller do not amount to vindictive sentencing within the meaning of Wilson v. State, 845 So.2d 142, 156 (Fla.2003).

Affirmed.


text:
    Michael SWAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2321.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 11, 2006.
    Michael Swain, in proper person.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and CORTINAS, JJ.
   PER CURIAM.

Michael Swain appeals the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

In his Rule 3.850 motion defendant-appellant Swain alleges a due process violation in the destruction of potentially exculpatory evidence under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

In 1976 defendant was convicted of burglary with an assault, armed sexual battery and robbery. Defendant claims that in the course of requesting DNA testing under Florida Rule of Criminal Procedure 3.853 he learned that certain evidence had been destroyed. In its response to the motion for DNA testing, the State produced documentation showing that the trial court entered a post-trial order in 1976 authorizing destruction of a robe containing a bloodstain. The State’s response also asserted that it was unable to locate vaginal swabs from at least one of the victims that had been submitted to the crime lab for testing. It is apparent from the record that such swabs existed at one point because the medical examiner testified to the existence of the swabs at trial.

Defendant claims that the alleged destruction of the evidence constitutes newly discovered evidence because he only learned of the destruction of the evidence in 2004. Defendant also claims entitlement to a hearing on his claim of bad faith destruction of the evidence. We agree with the trial court on denial of that claim. The fact that such evidence was destroyed after trial and prior to the advent of DNA testing does not constitute bad faith. No one at that time could have anticipated that such evidence would have any future evidentiary value. See King v. State, 808 So.2d 1237 (Fla.2002); Williams v. State, 891 So.2d 621 (Fla. 3d DCA 2005).

Affirmed.


author: STONE, J.

text:
    Frank C. BAKER, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 4D05-3922.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 17, 2006.

      Howard J. Hochman of the Law Offices of Howard J. Hochman, Miami, for appellant.
    David W. Young, Tallahassee, for appel-lee.
   STONE, J.

We affirm a final disciplinary order issued against Baker by the Department of Agriculture and Consumer Services (Department). Baker, a pest-control technician, is charged with applying a deficient concentration of a pesticide used for the prevention of subterranean termites in violation of sections 482.051(5) and 482.161(l)(e), Florida Statutes, and Florida Administrative Code Rule 5E-14.106(6).

Section 482.051(5) provides that “any pesticide used for preconstruction treatments for the prevention of subterranean termites be applied in the amount, concentration, and treatment area in accordance with the label.... ” Florida Administrative Code Rule 5E-14.106(6) also states that, “Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied in the specific amounts, concentration, and treatment areas designated by the label.”

Baker requested a formal hearing pursuant to section 120.57, Florida Statutes, and the case was referred to the Division of Administrative Hearings (DOAH). Baker challenged the investigative process and probable cause determination, alleging that Department failed to comply with section 286.011, Florida Statutes, the government in the “Sunshine” Law, that the investigation was not within Department protocols, that the rule was applied in an inconsistent fashion, contrary to the Fourteenth Amendment, and that Department’s unequal treatment of his case deprived him of administrative fairness. Baker makes the same claims in this appeal. We have considered and reject each claim.

The issues of inconsistency and unequal treatment arise because there is no specific rule detailing how Department staff, under these circumstances, should conduct its internal procedure in investigating, reviewing, and deciding to bring a complaint. Therefore, each case is processed on a case by case basis.

Here, there is no dispute that Department required compliance with the rule as to pesticide concentration, nor that Baker failed to comply with the requirement. Baker also does not contend he was without notice that his failure to apply the required concentration could result in an administrative penalty. The record reflects no deviation from any internal policy in the process followed in preparing and deciding to file the complaint. Further, in a previous challenge Baker made to Department’s practices and procedures, DOAH recognized that a person subjeet'to Department discipline has ho statutory right to have the case investigated and reviewed in a specific manner. Baker v. Dep’t of Agric. & Consumer Servs., DOAH Case Number 05-0947RU (2006).

Neither the administrative law judge’s order, nor the commission’s order address Baker’s “Sunshine” Law claim. In any ease, there is no basis1 in the record for a “Sunshine” Law violation. Baker objected to administrative discussions during the investigation and charging process. However, there was no meeting of a board, commission, or other public collegial body; the investigation was conducted by Department employees following Department practices, and the ultimate charging decision was- made by the assistant director of Department. Communication among administrative staff in fulfilling investigatory, advisory, or charging functions does not constitute a “Sunshine” Law violation. See generally Knox v. Dist. Sch. Bd. of Brevard 821 So.2d 311 (Fla. 5th DCA 2002).

With respect to the Fourteenth Amendment claim, we note that Baker stated he did not wish the administrative law judge to rule on constitutional issues, but only raised them to preserve the issues for the record. In any event, here, the disciplinary action was not applied unconstitutionally as to Baker; he had no statutorily protected right to have his case conducted in a certain manner, and there was no evidence supporting his contention that he was discriminated against in the inspection process because of a competitor’s concern about his company’s treatment procedure. There is' also nd evidence that Baker was inspected more than once. In any event, it appears that the same investigative procedures were used by Department in all cases.

Therefore, we affirm the final disciplinary order.

STEVENSON, C.J. and BATEMAN, THOMAS H., Ill, Associate Judge, concur.


text:
    Yowinkre KNOLL, Appellant, v. Ruben KNOLL, Appellee.
    No. 3D04-1471.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.

      Armando Montalvo, Miami, for appellant.
    Lauri Waldman Ross and Buckner, Shif-rin, Rice & Etter, Miami, for appellee.
    Before COPE, C.J., and GERSTEN and WELLS, JJ.
   COPE, C.J.

This is an appeal from an order denying exceptions in proceedings subsequent to a dissolution of marriage. We affirm in part and reverse in part.

The first issue in this appeal is whether the appellant former wife or the appellee former husband was responsible for payment of the 2002 real estate taxes on the marital residence. During the divorce proceedings, the parties entered into a Marital Settlement Agreement. As to the marital home, the agreement provided:

9.1 MARITAL HOME: The Husband and his father jointly own the marital residence located at 3265 Allamanda Street, Miami, Florida 33133. The Husband and his father shall execute a Quit Claim Deed transferring their entire interest in this home to the Wife. However, said transfer is conditioned upon the Wife’s agreement not to sell, transfer or otherwise dispose of the property for a period of seven and one-half (7⅜) years. The Wife may rent the property during this period so long as she obtains replacement housing for herself and the minor child in the South Florida area (Dade, Broward or Palm Beach County). In order to secure the provisions of this paragraph, the Quit Claim Deed will be recorded along with this Agreement and a Lis Pendens in order to put any buyer on notice of the prohibition against sale for the seven and one-half (7½) years from the date of this Agreement. The home is not encumbered by a mortgage. The Wife shall be responsible for taxes, insurance, repairs and any other expense necessary to maintaining ownership of the property.

(Emphasis added).

At the time the parties signed the Agreement in May 2003, the 2002 real estate taxes were unpaid and overdue. The Agreement is silent on the responsibility for the overdue real estate taxes, which amounted to approximately $8,000.

Under another provision of the parties’ agreement, the former husband was required to pay the former wife $100,000 as equitable distribution. These amounts were payable in quarterly installments of $25,000. The former husband paid the first installment in full on August 15, 2003. By the time the second installment was due on November 15, 2003, the former husband became aware that the 2002 taxes on the real estate remained unpaid, and another $7,000 in real estate taxes had become due for 2003. The former husband unilaterally withheld $15,000 from the quarterly payment so that he could pay the 2002 and 2003 real estate taxes. This left the former wife with $10,000 for that quarter’s payment instead of the full $25,000.

The former wife filed an emergency motion for contempt which was referred to the general master. The general master took testimony in which the former husband testified that he told the wife about the overdue 2002 taxes prior to entry into the Marital Settlement Agreement. The former wife denied being told. The tax obligation was not disclosed on the former husband’s financial affidavit.

The general master ruled that the plain language of the agreement made the former wife responsible for all tax obligations on the real estate, whether overdue or not. The master ruled that the former wife was obligated to pay the overdue 2002 real estate taxes as well as the 2003 real estate taxes.

The former wife filed exceptions to the ruling regarding the overdue 2002. taxes, maintaining that under the Marital Settlement Agreement, those were the responsibility of the former husband. The circuit court denied the former wife’s exceptions and the former wife has appealed.

It has been said that:

The trial court’s interpretation of marital settlement agreements is subject to de novo review. Settlement agreements are to be interpreted in accordance with laws governing contracts. Thus, absent evidence of the parties’ intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning. The court should also consider the object sought by the provision of the agreement.

Johnson v. Johnson, 848 So.2d 1272, 1273 (Fla. 2d DCA 2003) (citations omitted).

Under the facts of this case, title to the marital home was held by the former husband and his father jointly, and the former wife did not have an ownership interest in the real estate. The parties’ agreement called for a conveyance of the real estate to the former wife, where she had not previously been a record title owner, and made her “responsible for taxes, insurance, repairs and any other expense necessary to maintaining ownership of the property.”

As we view the matter, the parties’ agreement made the former wife responsible for obligations coming due during her period of ownership. The 2002 taxes, however, came due (and became overdue) during the former husband’s period of ownership and therefore were the obligation of the former' husband. We therefore reverse the order now before us regarding the overdue 2002 taxes and remand for entry of judgment for the former wife on that issue.

As to the former wife’s second issue on appeal, we affirm the order now before us on authority of Braswell v. Braswell, 881 So.2d 1193, 1198 (Fla. 3d DCA 2004).

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

       The parties and general master agreed on a procedure for payment of the disputed 2002 real estate taxes, pending final resolution of this litigation.


text:
    Valerie R. Manno SCHURR, Appellant, v. Jose R. SANCHEZ-GRONLIER, Candidate for Circuit Court Judge Group 78, and Lester Sola, Supervisor of Elections, Miami-Dade County, Florida, in his official capacity, and the Florida Department of State and Sue M. Cobb, in her official capacity as Florida Secretary of State, Appellees.
    No. 3D06-2125.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellant.
    Geller, Geller, Fisher & Garfinkel, Hollywood, and Joseph S. Geller and Peggy Fisher; Sale <& Kuehne and Benedict P. Kuehne, Miami; Murray A. Greénberg, Miami, and Oren Rosenthal; Holland & Knight and Richard Antonio Perez, Miami, for appellees.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The judgment below is affirmed on the authority of the comprehensive and eminently correct opinion of the trial court:

THIS MATTER is before the Court on Plaintiffs [Valerie R. Manno Schurr] Motion for Temporary Injunction and Complaint for Declaratory and. Injunc-tive Relief. Plaintiff has requested .that this Court declare that under the applicable statutes, Defendant Jose R. Sanchez-Gronlier is not a properly qualified candidate for election to the office of Circuit Court Judge, Eleventh Judicial Circuit, Group 78. After máking such a finding, Plaintiff asks that this Court issue an injunction directing that Defendant Lester Sola, the Miami-Dade County Supervisor of Elections, remove Defendant Sanchez-Gronlier’s name from the ballot for the Miami-Dade County primary election scheduled for September 5, 2006. Plaintiff additionally asks this Court to issue an injunction directing that Defendant Sue Cobb, in her official capacity as Secretary of State, de-certify Defendant Sanchez-Gronlier as a properly qualified candidate for this primary election. •
Plaintiff contends that Defendant failed to timely file the appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates, Form DS-DE 9 (Plaintiffs Exhibit 1) as required by Florida Statutes §§ 105.031(5)(a)(4) and 106.021(l)(a). Plaintiff also asserts that the check presented for payment of his filing fee as required by § 105.031(5)(a)(l) is not a properly executed check drawn upon his campaign account. She bases this assertion on the belief that Defendant Sanchez-Gronlier opened a campaign account, accepted contributions which were deposited into this account, and made expenditures from the account without having filed the required DS-DE 9, all in violation of § 106.021(l)(a). Plaintiff maintains that the proper remedy for these violations is the removal of Defendant Sanchez-Gronlier from the ballot.
This Court conducted an evi-dentiary hearing on August 21, 2006. At that hearing, the parties stipulated to the entry of a final judgment of the matters presented in Plaintiffs motion and complaint. The jurisdiction of the Court over the parties and subject matter of this action is not in dispute. Upon considering the evidence that was presented, the pleadings which were filed and the argument of counsel, the Court finds that:
1.Defendant Sanchez-Gronlier obtained information pertinent to filing for election to judicial office from the Department of State webpage. Included in this information was a memorandum from the Department of State, Division of Elections, regarding qualifying requirements for judicial candidates in the 2006 election (Plaintiffs Exhibit 2). The memo lists what must be filed by candidates who intend to qualify for election by paying a qualifying fee, including 1) an Appointment of Campaign Treasurer and Designation of Campaign Depository (Form DS-DE 9); 2) a Judicial Offices Loyalty Oath (Form DS-DE 26); 3) a Form 6, Full and Public Disclosure of Financial Interests for the year 2005; and 4) the qualifying fee paid by a check drawn on the candidate’s campaign account.
2. Defendant Sanchez-Gronlier opened a campaign account with money he loaned to his campaign. There were no contributions made by any other person to his campaign and deposited into his account prior to July 21, 2006.
3. Defendant Sanchez-Gronlier made no expenditures from his campaign account prior to presenting a check drawn on his account to pay his qualifying fee on July 21, 2006.
4. On July 21, 2006, the last day of the qualifying period, Defendant Sanchez-Gronlier presented in person each of the required items for qualifying at the Division of Elections in Tallahassee. The Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (Form DS-DE 9) was filed and date stamped at 8:17 a.m. The Form 6, Full and Public Disclosure of Financial Interest for the year 2005 was filed, and dated stamped at 8:17 a.m. A statement that Defendant Sanchez-Gronlier had read and understood the requirements of the Florida Judicial Code of Conduct was filed and date stamped at 8:17 a.m. Finally, the qualifying check, dated July 19, 2006, was presented, filed and date stamped at 8:19 a.m.
§ 106.021(l)(a) prohibits campaign contributions and expenditures until the candidate has appointed a treasurer and designated a primary campaign depository. § 105.031(5), while not explicitly including such a prohibition, does refer to § 106.021 in referencing the appointment and designation form.
When Defendant Sanchez-Gronlier opened his campaign account, he did so with money he loaned to the campaign. Such loans are campaign contributions. Since he had not designated a primary campaign depository when he opened the account, Defendant Sanehez-Gronlier was in violation of § 106.021(l)(a) for accepting a campaign contribution prior to the filing of the Form DS-DE 9.
The only expenditure made by Defendant Sanchez-Gronlier from the campaign account was the qualifying check. The check was presented for payment two minutes after the appointment of treasurer and designation of campaign depository were filed. As a result, there was no violation of § 106.021 for making an expenditure from the campaign account. The fact that the check was dated July 19, 2006 is of no moment. The expenditure was made at the time of presentment.
Does the fact that Defendant Sanchez-Gronlier opened an account with an improper campaign contribution mean that the check he presented to the Division of Elections was not properly executed? If so, § 105.031(5)(a)(l) provides that he should be disqualified. However, while the campaign contribution which established his campaign account was improper, prior to presenting the check for payment, Defendant Sanchez-Gronlier did file the Form DS-DE 9. Any harm created by his actions under these circumstances was rendered de minimis. This Court finds that Defendant Sanchez-Gronlier cured the defective contribution by his filing of the Form DS-DE 9. Thus, when the check was presented to the Division of Elections, it was drawn on a valid campaign account and was properly executed. Disqualification of Defendant Sanchez-Gronlier is not warranted on this basis.
Since this Court has found that Defendant Sanchez-Gronlier violated § 106.021, should Plaintiffs prayer that this Court issue an injunction directing the Secretary of State and the Supervisor of Elections for Miami-Dade County to de-certify the offender and remove Defendant Sanchez-Gronlier’s name from the ballot be granted? In answering this question, the Court recognizes binding precedent holding that § 106.021 does not provide for a private right of action. Goff v. Ehrlich, 776 So.2d 1011 (Fla. 5th DCA 2001). As properly argued by Defendant Sanchez-Gronlier, §§ 106.18 and 106.19 detail the removal of a candidate for violations of Chapter 106, with enforcement within the purview of the Florida Elections Commission. As a result, the requested injunctive relief is not warranted.
As indicated earlier, the violation of § 106.021 was de minimis and no harm to the public’s interest in fair elections resulted. Additionally, the Court’s conclusions here comport with the strong public interest of providing electoral choice. Indeed, in Republican State Executive Committee v. Graham, 388 So.2d 556, 558 (Fla.1980), the Supreme Court stated:
If two equally reasonable constructions might be found, this Court in the past has chosen the one which enhances the elective process by providing voters with the greater choice in exercising their democratic rights.
It is hereby DECLARED that Defendant Sanchez-Gronlier is in violation, of § 106.021 but that removal from the ballot is not warranted. It is further ORDERED AND ADJUDGED that Plaintiffs motion and action for injunctive relief is hereby DENIED and the Plaintiff shall go hence without day.

Affirmed.

        . § 105.031(5)(a) requires:
      (a) In order for a candidate for judicial office ... to be qualified, the following items must be received by the filing officer by the end of the qualifying period:
      1. [A] properly executed check drawn upon the candidate's campaign account....
      2. The candidate’s oath ....
      3. The loyalty oath required by § 876.05, signed by the candidate and duly acknowledged.
      4. The completed form for the appointment of campaign treasurer and designation of campaign depository as required by § 106.021. In addition, each candidate for judicial office ... shall file a statement with the qualifying officer, within 10 days after filing the appointment of campaign treasurer and designation of campaign depository, stating that the candidate has read and understands the requirements of the Florida Code of Judicial Conduct ....
      5. The full and public disclosure of financial interests ... or the statement of financial interest ... whichever is applicable.

      . § 106.021, Fla. Stat. (2005) prescribes the manner in which a person seeking to become a qualified candidate must designate a campaign depository and treasurer prior to quali-lying for office. Said section provides limitations on how and when contributions may be accepted or expended in furtherance of such sought candidacy.
      § 106.021(l)(a) provides in pertinent part: Each candidate for ... election to office ... shall appoint a campaign treasurer. Each person who seeks to qualify for ... election to ... office shall appoint a .campaign treasurer and designate a primary campaign depository prior to qualifying for office.... No person shall accept any contribution or make any expenditure with a view to bringing about his ... election ... or authorize another to accept such contributions or make such expenditure on the person's behalf unless such person has appointed a campaign treasurer and designated a primary campaign depository.
      (l)(b) Except as provided in paragraph (d), each candidate .., shall also designate one primary campaign depository for the purpose of depositing all contributions received, and disbursing all expenditures made, by the candidate.
      (l)(c) Any campaign treasurer or deputy treasurer appointed pursuant to this section shall be a registered voter in this state and shall, before such appointment may become effective, have accepted appointment to such position in writing and filed such acceptance with the officer before whom the candidate is required to qualify....

      . This was the first day of early balloting and some time after absentee ballots had been distributed by the Department of Elections. Defendant Sanchez-Gronlier argues that Plaintiff should not have waited until such a late point in the election process to file this action when she knew or should have known of any potential violation at a time much closer to the close of the qualifying period on July 21. As a result, Sanchez-Gronlier believes that Plaintiff has "unclean hands” and should not be entitled to equitable relief such as the injunction sought here.

      . This form, not listed in the Division of Elections memo referenced earlier, is also required by § 105.031(5)(a)(4).

      . The referenced provision reads at the referenced point "[N]o person shall accept any contribution or make any expenditure with a view to bringing about his or her nomination, election, or retention in public office, or authorize another to accept such contributions or make such expenditure on the person’s behalf, unless such person has appointed a campaign treasurer and designated a primary campaign depository.”

      . See The 2006 Candidate and Campaign Treasurer Handbook, which is produced by the Elections Division. Chapter 10, at page 23, states that:
      Loans are considered contributions and are not subject to contribution limitations; however, loans made by a candidate to his own campaign are not subject to contribution limitations.

      .The Court notes that the Department of State, Division of Elections memorandum (Plaintiff's Exhibit 2), contributed to the confusion of the defendant here. Read logically, the memo implies that all of the required documents for qualifying could be tiled at the same time. This is an issue which should be addressed by the Department of State in making it clear that form DS-DE 9 should be filed prior to the opening of a campaign account and prior to the payment of the filing fee as per the Statute. As currently worded, it is reasonable for any person reading the memo to understand it to say that all of the listed documents can be filed together.

      . It is a common occurrence for potential judicial candidates to hide their interest in seeking election until the latest possible moment, i.e., during the qualifying period, as can be attested by any casual observer in the Division of Elections office on the last day of the period. These stealth candidates, knowing that they must present a check from their campaign account to qualify, will open the account in the same manner as occurred here. This Court recommends that the legislature consider amending both § 105.031 and § 106.021 to more clearly state that loans to a campaign by a potential candidate are contributions within the scope of these sections in an effort to address and prevent violations such as that which occurred here. Appropriate remedies for such violations should also be considered. Additionally, language indicating that the Form DS-DE 9 should be filed prior the opening of the campaign account and prior to the qualifying period should be considered. Even if such an amendment is not made, the Division of Elections should highlight these issues on its memorandum to candidates and on the Form DS-DE 9.

      This decision shall take effect and the mandate shall issue immediately without regard to any motion for rehearing.


text:
    Warren STANG, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1556.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 17, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm the judgment imposed upon Stang’s violation of probation for multiple counts and attendant sentences totaling twenty-seven years in prison.

Stang contends that the trial court erred by sentencing him based upon a single scoresheet because his offenses occurred both before and after the sentencing guidelines were amended and should, therefore, be calculated on two score-sheets.

Stang initially pled guilty to twenty-four counts in a racketeering/loan broker fraud/money laundering case. Some of the predicate offenses took place between 1991 and 1994, while others transpired after January 1, 1994. He was sentenced to five years in prison for fifteen of the counts, to run concurrently and with credit for time served, followed by three years of probation for the remaining nine counts, also concurrent. It is undisputed that Stang agreed to be scored on one scoresheet utilizing pre-1994 (1983) guidelines. Nothing in the record indicates that this agreement would not remain applicable in a future sentencing if Stang violated his probation.

This court has previously recognized the rule that “when a court sentences a defendant for violation of probation, the court must use the original scoresheet.” Jefferson v. State, 830 So.2d 195, 198 (Fla. 4th DCA 2002). Here, there was one original scoresheet, notwithstanding that some of the crimes charged occurred prior to 1994 and some after.

Section 921.001(4)(b)l and 2, Florida Statutes, describe a bipartite sentencing scheme, dependent upon when a felony is committed. January 1, 1994 is the line of demarcation. Dillard v. State, 728 So.2d 725, 726 (Fla.1999). Subsection 4 mandates:

4. When a defendant is before the court for sentencing for more than one felony and the felonies were committed under more than one version or revision of the guidelines, each felony shall be sentenced under the guidelines in effect at the time the particular felony was committed....

This method is further adopted in Florida Rule of Criminal Procedure 3.703(d), which provides: “If an offender is before the court for sentencing for more than one felony and the felonies were committed under more than one version or revision of the guidelines, separate scoresheets must be prepared and used at sentencing. The sentencing court may impose such sentence concurrently or consecutively.” See also Daniels v. State, 929 So.2d 710 (Fla. 1st DCA 2006).

In this case, however, Stang waived the requirement for two scoresheets in the course of his original negotiated plea. There is no Florida law entirely on point. All of the state’s cited decisions in support of agreed-to sentences are inapposite because none of them deal with sentencing upon a violation of probation. See Mortimer v. State, 770 So.2d 743 (Fla. 4th DCA 2000); Quarterman v. State, 527 So.2d 1380 (Fla.1988); Ruff v. State, 840 So.2d 1145 (Fla. 5th DCA 2003); Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000); Perry v. State, 705 So.2d 615 (Fla. 5th DCA 1998).

We also recognize that in Daniels v. State, 870 So.2d 250, 254 (Fla. 2d DCA 2004), the court said: “The notion that a negotiated plea with respect to an initial disposition can act as an implicit waiver of the guidelines with respect to sentencing upon revocation of probation has been rejected.” However, we deem Daniels inap-posite. Daniels dealt with an upward departure sentence, agreed to in a plea agreement for a probationary split sentence. There, too, the agreement was silent as to future sentencing if probation was violated. The Daniels court recognized that

[Although a plea bargain may provide a valid reason for departure with respect to the initial disposition, it cannot be viewed as an implicit waiver of the guidelines with respect to sentencing subsequent to the initial disposition. Rather, an upward departure sentence upon revocation of probation is permitted only if the defendant in his original plea specifically recognizes and agrees that, upon violation of his probation, he can receive an above-guidelines sentence equal to the probation portion of the split sentence.

Id. at 253-54 (citations omitted).

However, in Adekunle v. State, 916 So.2d 950 (Fla. 4th DCA 2006), we reversed for improper use of a new score-sheet at sentencing subsequent to probation revocation. The rule requiring use of the original scoresheet “is consistent with the probation statute which provides that following a revocation of probation the court may impose any sentence which it might have originally imposed before placing the probationer on probation.” Id. at 952 (emphasis in original). We conclude that Adekunle is applicable here.

As to all other issues raised, we find no reversible error or abuse of discretion. The judgment and sentence are affirmed.

STEVENSON, C.J. and BATEMAN, THOMAS H., Ill, Associate Judge, concur.


text:
    David ELDER, Appellant, v. STATE of Florida, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 1D05-1734.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.

      Wilson Jerry Foster of Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and A. Miréille Fall, Assistant Attorney General, and Diane L. Guillemette, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

David Elder appeals the final order, issued by the Construction Industry Licensing Board of the Department of Business & Professional Regulation, denying his application for licensure in the State of Florida. He contends that the reason given by the Board constituted an improper basis for the denial. We agree and reverse for further consideration.

In 1995 and 1996, the Board initiated several administrative complaints against Elder regarding the use of his contractor’s license in Florida. In exchange for the Board’s agreement not to pursue further proceedings in those cases, Elder voluntarily relinquished his license as a certified general contractor and roofer and agreed not to apply for relicensure in the State of Florida for at least five years. A final order was issued on June 7, 1996, approving this agreement.

Six years later, Elder reapplied for li-censure with the Board and ultimately was granted an informal hearing, wherein he was required to prove his rehabilitation and eligibility to be relicensed. The Board declined to approve Elder’s request for licensure or recertification through examination and subsequently issued a final order denying Elder’s application on the basis that he faded to prove appropriate rehabilitation.

Elder timely appealed the final order to this court on the ground that he had been deprived of access to the administrative process. By agreement of the parties, this court relinquished jurisdiction, and on August 5, 2003, the Board entered an order vacating the final order and issued a Notice of Intent to Deny the application, informing Elder of his administrative rights. Elder sought review of the Notice of Intent to Deny, disputing the grounds for the denial. He also requested a formal hearing pursuant to section 120.57(1), Florida Statutes (2003).

On November 19, 2004, the Board voted to amend the Notice of Intent to Deny to reflect a new ground for denial: Elder’s prior disciplinary action, specifically the voluntary relinquishment and related cases. Elder filed a petition asserting that he lacked notice of the Board’s decision to consider a new ground for the denial and that the Board failed to timely consider his request for a formal hearing.

The Board agreed that there were no disputed factual issues to determine and afforded Elder an informal hearing on February 11, 2005. By final order entered on April 4, 2005, the Board denied Elder’s application on the basis that (1) no material facts were in dispute and (2) Elder had been disciplined in the past, pursuant to sections 455.227(l)(f) and (2), Florida Statutes. Elder filed a timely notice of appeal of this order.

Section 455.227 provides that an action against one’s license, including the acceptance of a relinquishment of licensure, shall constitute grounds for which the Board may refuse to certify an application for licensure. See § 455.227(l)(f) and (2), Fla. Stat. (2005). Under different circumstances, the fact that the Board had previously taken disciplinary action against Elder’s license would amply support denying his request for relicensure. However, this reason alone is insufficient in this case. By accepting Elder’s voluntary relinquishment and agreement not to reapply for a license in Florida for at least five years, the Board essentially forfeited the opportunity to later penalize him for the series of complaints then pending against him. Thus, the Board cannot now refuse to certify his licensure application for the same conduct that provided the basis for the voluntary relinquishment.

Perhaps the Board could have denied the application on the ground that Elder failed to demonstrate that he was appropriately rehabilitated, but it chose not to do so. Even then, he may have been entitled to a formal hearing to decide any disputed issues of material fact implicated in the notice of denial. See § 120.57(1), Fla. Stat. (2005) (describing additional procedures applicable to hearings involving disputed issues of material fact). Regardless, the reasons provided by the Board in the final order do not provide a proper basis for denying Elder’s application for a license. Accordingly, we reverse and remand the case for further consideration by the Board.

WOLF, PADOVANO, and POLSTON, JJ., concur.


text:
    K.J.S., Jr., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1846.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.
    Rehearing Denied Sept. 27, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the revocation of probation as amply supported by the record. The remaining issues raised by appellant, including those related to assessment of costs, fees and surcharges, were unpreserved by either a timely objection or a motion pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2) and do not implicate fundamental error. Accordingly, we may not consider them. See generally A.M.P. v. State, 927 So.2d 97 (Fla. 5th DCA 2006).

AFFIRMED.

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


text:
    Jack Watkins HUNTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3411.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2006.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cyrus v. State, 712 So.2d 811, 812 (Fla. 4th DCA 1998); Trox-ell v. State, 662 So.2d 1014, 1015-16 (Fla. 5th DCA 1995).

THOMPSON, PALMER and LAWSON, JJ., concur.


text:
    James Leslie KELLY, Appellant, v. DONNINI ENTERPRISES, INC. and Bill Fagan, Appellees.
    No. 4D05-4603.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    James Leslie Kelly, Crawfordville, pro se.
    Louis E. Lozeau, Jr. of Wright, Ponsoldt & Lozeau, Trial Attorneys, L.L.P., Stuart, for appellee Donnini Enterprises, Inc.
   PER CURIAM.

James Leslie Kelly, a former employee of a convenience store owned by Donnini Enterprises, Inc. (hereinafter “Donnini”), sued Donnini and Bill Fagan, one of its store managers, for negligence and defamation. The trial court entered final summary judgment in favor of defendant Donnini on both counts. “ ‘Summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.’ ” Sulkin v. All Fla. Pain Mgmt., Inc., 932 So.2d 485, 486 (Fla. 4th DCA 2006) (quoting Dade County Sch. Bd. v. Radio Station WQBA 731 So.2d 638, 643 (Fla.1999)). We affirm the summary judgment on the negligence claim, but find that issues of fact remain regarding the defamation action and Don-nini’s vicarious liability for Fagan’s statements, rendering summary judgment inappropriate at this juncture.

Affirmed in part and Reversed in part.

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


text:
    Willie PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-989.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Rehearing Denied Oct. 18, 2006.
    Willie Phillips, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order summarily denying his rule 3.850 motion for postconviction relief. We reverse and remand for further proceedings.

The defendant alleged that trial counsel was ineffective in failing to raise, as a basis for suppression of his statement, that the Miranda rights warning he received failed to advise him of the right to have an attorney present during interrogation. Roberts v. State, 874 So.2d 1225, 1229 (Fla. 4th DCA 2004), rev. denied sub nom. State v. West, 892 So.2d 1014 (Fla.2005). This claim is legally sufficient. Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Anthony v. State, 927 So.2d 1084 (Fla. 4th DCA 2006).

We have considered the language from the opinion in Phillips’ direct appeal where we stated that the error did not meet the stringent standard of fundamental error. Phillips v. State, 877 So.2d 912, 914 (Fla. 4th DCA 2004), rev. denied, 898 So.2d 81 (Fla.2005). In so finding, we stated that the argument was not preserved for appellate review and the “panel cannot properly reach the merits of his argument.” 877 So.2d at 914. Consequently, the case was affirmed without prejudice to Phillips’ filing a rule 8.850 motion.

Having filed such a motion, the merits of the defendant’s claim must be considered. Accordingly, we reverse and remand either for the attachment of portions of the record conclusively refuting the claim or for an evidentiary hearing. Martelus, 924 So.2d at 881.

GUNTHER, TAYLOR and MAY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: WELLS, J.

text:
    Luis Angel CHACON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-526.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.

      Milne & Smith and Sydney P. Smith, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and ROTHENBERG, JJ.
   WELLS, J.

Luis Angel Chacon appeals from his convictions for aggravated battery with a deadly weapon, attempted aggravated battery, and aggravated stalking, all- stemming from an incident in. which he. attempted to run over his former paramour and members of her family with a car. .He claims that the trial court improperly admitted hearsay testimony and character evidence and improperly sentenced him as a violent career criminal without the proper qualifying forcible felonies. We affirm.

We find meritless Chacon’s complaint that he is entitled to a reversal because the victim’s testimony that he telephoned her and wrote her letters threatening her, her son, and her grandson was inadmissible, prejudicial hearsay. First, admissions of a party are exceptions to the hearsay rule. See § 90.803(18)(a), Fla. Stat. (2005). Second, this testimony was not elicited to demonstrate Chacon’s bad character but to prove the crimes charged, that is, that he intended to harm the victim and her family, and that he violated section 784.048. Third, Chacon’s failure to object to this testimony permits review only to determine whether fundamental error exists. See Doorbal v. State, 837 So.2d 940, 954 (Fla.2003). As to this testimony, no such error is demonstrated. The victim’s testimony only supports the determination that Chacon committed the crimes with which he was charged; it therefore validated the trial rather than vitiating it. See id. at 954-55 (stating that fundamental error is error so serious that it reaches down into the validity of a trial itself and vitiates it).

The testimony that Chacon threatened to kill the victim’s son before attempting to run him over also is not inadmissible character evidence but evidence of intent to harm (batter) this individual. See Williams v. State, 110 So.2d 654, 662 (Fla.1959) (confirming that relevant evidence is that which “casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried”). There was no error in admitting this testimony. And, while the testimony of a police officer who recounted events which had been reported to her by others may have been improperly admitted hearsay, it was met with no objection, was at most cumulative to the testimony of a number of others who witnessed the events first hand, and was not so egregious as to vitiate the entire trial.

The trial court also properly sentenced Chacon as a violent career criminal as the primary offenses for which Chacon was being sentenced were aggravated stalking and burglary with assault and battery, both of which qualified him for enhancement under section 775.084(d)(1), Fla. Stat (2005). See § 775.084(d)(1), Fla. Stat. (2005) (listing aggravated stalking and the forcible felonies described in section 776.08 as qualifying offenses); § 776.08, Fla. Stat. (2005) (listing “burglary” as a forcible felony); Rodriguez v. State, 826 So.2d 464, 465 (Fla. 3d DCA 2002) (confirming that burglary of an unoccupied structure is a qualifying offense under section 775.084 because section 776.08 lists burglary generally as a qualifying offense); see also Delsol v. State, 837 So.2d 428, 429 (Fla. 3d DCA 2002) (same).

Chacon’s convictions and sentences are, therefore, affirmed.

Affirmed.

      . Section 784.048 includes harassment within the definition of stalking and defines harassment as "engage[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a), Fla. Stat. (2005); see also § 784.048(3), Fla. Stat. (2005) (defining aggravated stalking as willful, malicious, and repeated harassment of another with the intent to place that person in reasonable fear of death or bodily injury).


text:
    Said AWAD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-808.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Rehearing Denied Oct. 12, 2006.
    John H. Lipinski (Pembroke Pines), for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The order under review is affirmed pursuant to the emphasized portion of Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993)(“To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.”)(emphasis added).


text:
    Simon Vincent PORTEOUS, Appellant, v. Dana Maud PORTEOUS, Appellee.
    No. 3D03-2019.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.

      Deborah Marks, Miami, for appellant.
    Steven F. Samilow, Weston, for appel-lee.
    Before COPE, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   COPE, C.J.

Simon Vincent Porteous (“the former husband”) appeals a final judgment of dissolution of marriage. We affirm.

As the first point on appeal the former husband argues that the final judgment should be reversed and the cause remanded so that the trial court can make more detailed findings under the equitable distribution statute. See § 61.075(3), Fla. Stat. (2002). The trial court’s judgment identifies the assets that were the subject of dispute at the trial. The court accepted the position of the former wife regarding two of the assets and rejected the former wife’s position regarding the remaining assets. The court then divided the marital assets on a fifty-fifty basis.

We have said that “[a]s a general rule, we decline to consider claims which were not presented in the first instance in the trial court. In this ease there is no indication that the need for statutory findings was called to the attention of the trial court.” Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001) (citation omitted). In this case there is no indication that either party asked the trial court to make more, or different, statutory findings on the subject of equitable distribution. That being so, we decline to reverse for more findings.

As part of point one, the former husband appears to argue that some of the trial court’s factual findings are not supported by the record. The barrier to entertaining this argument is the fact that the former husband has only filed the transcripts of the first two trial days. The record on appeal does not contain a transcript of the third trial day, consisting of the cross examination of the former wife plus other trial witnesses. Similarly, we do not have the benefit of any closing arguments made by the parties or oral pronouncements, if any, by the trial judge. No record substitute has been filed for the third trial day. See Fla. R.App. P. 9.200(a)(4), (b)(4). As the Florida Supreme Court has explained:

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.

Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

In the absence of a proper record, our review is limited to any errors which appear on the face of the judgment. See Prymus v. Prymus, 753 So.2d 742 (Fla. 3d DCA 2000); Katowitz v. Katowitz, 684 So.2d 256, 257 n. 1 (Fla. 3d DCA 1996). We do not agree with the former husband’s claim that legal error appears on the face of the judgment.

The former husband challenges the trial court’s award of attorney’s fees to the appellee former wife. However, that award was made in a subsequent final judgment on attorney’s fees and is not contained in the final judgment which is now before us. We therefore do not reach in this proceeding any claim regarding the award of trial court attorney’s fees.

The former husband argues that the trial court erred by denying his claim for return of his personal effects. As the former wife points out, review of this claim is also precluded because of a lack of a complete record. There is no discussion of this claim in the portion of the trial transcript which has been filed. See Applegate.

For the stated reasons, the final judgment is affirmed.


author: MONACO, J.

text:
    K.I., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2807.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.

      Robert Wesley, Public Defender, and Olga M. Telleria-Khoudmi, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   MONACO, J.

The child, K.I., petitioned for a writ of habeas corpus seeking her release from secure detention. Because of the time sensitivity of this case, and because . we agreed that habeas corpus relief was appropriate, we have earlier issued the writ. We now write to explain our determination.

Reduced to their essence, the facts are that K.I. was arrested in 2005 for possession of a counterfeit license tag, a third degree felony, and for giving false identification to a law enforcement officer, a misdemeanor. When she failed to appear for a court proceeding, the trial court issued a pick-up order in May of 2006. She was taken into custody pursuant to the order on August 10, 2006.

The Department of Juvenile Justice prepared a risk assessment instrument prior to K.I.’s detention hearing. The assessment reflected a score of zero points, and the representative from the Department advised the trial court that while K.I. was eligible for 5 days of secure detention for contempt of court, she was ineligible for 21 days secure detention. Despite that advice, and despite the objection of counsel for K.I., the court sentenced her to 5 days in the juvenile detention center to be followed by 21 days of secure detention. The written reason given by the court in the detention order was that the “child admitted to giving false name and failed to appear at arraignment.” Because we conclude that the 21 days of secure detention contravenes the statute governing secure detention, we have issued the writ .

Habeas corpus is the proper remedy when a juvenile is being illegally detained in violation of the risk assessment requirements and the detention statute. See, e.g., A.S. v. Byrd, 777 So.2d 1171 (Fla. 4th DCA 2001). Secure detention is governed by section 985.215, Florida Statutes (2005). •

Section 985.213(1) describes the circumstances when a child may be placed in secure detention, including when there is a substantial risk of not appearing at a subsequent hearing, and when the child has committed a contempt of court. Subsection (2)(a) of the statute provides, however, that with certain exceptions not applicable to the present case, all determinations concerning the placement of a child in secure detention “shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child.”

A child, must score 12 or more points before being eligible for secure detention. If the trial court wishes to place the child in a more restrictive level than that indicated by the risk assessment instrument, the court must state in writing the clear and convincing reasons for the more restrictive “departure” placement. See § 985.215(2), Fla. Stat. (2005).

There are essentially three statutory provisions that govern the issue of whether K.I. should have been subjected to secure detention, all of which are contained within subsection 985.215(2). They read in pertinent part as follows:

(2) Subject to the provisions of subsection (1), a child taken into custody and placed into nonsecure or home detention care or detained in secure detention care prior to a detention hearing may continue to be detained by the court if:
(g) The child is charged with any second degree or third degree felony involving a violation of chapter 893 or any third degree felony that is not also a crime of violence, and the child:
1. Has a record of failure to appear at court hearings after being properly notified in accordance with the Rules of Juvenile Procedure;
(i) The child is detained on a judicial order for failure to appear and has previously willfully failed to appear, after proper notice, for an adjudicatory hearing on the same case regardless of the results of the risk assessment instrument.
(j) The child is detained on a judicial order for failure to appear and has previously failed to appear, after proper notice, at two or more court hearings of any nature on the same case regardless of the results of the risk assessment instrument. (Emphasis added)

The transcript reveals that the trial court concluded that it could place K.I. in secure detention under paragraph (g) because K.I. was charged with a non-violent third degree felony, and had a “record” of failing to appear. The problem in this case, however, is that there was no previous record of failing to appear. A “record” of failing to appear clearly implies at least one prior episode. There was, in fact, a notation of a purported failure of K.I. to appear in an earlier case, but the trial judge properly recognized that K.I. had been placed in a diversion program, and was, therefore, not required to make an additional court appearance. As the only failure to appear applicable to K.I. was the very one for which she was before the court, paragraph (g) did not apply.

Paragraphs (i) and (j) are similarly inapplicable. Each provision requires at least one prior failure to appear in varying circumstances before the trial court can depart from the requirements of the risk assessment instrument. Indeed, the State candidly acknowledges that K.I. could not properly be placed in secure detention on the basis of this single failure to appear. See A.M.W. v. Portesy, 714 So.2d 1170 (Fla. 2d DCA 1998).

The State argues, however, that because K.I. is charged with giving a false name to the police officer who arrested her, secure detention is warranted when the false statement is coupled with the failure to appear. There is no citation of authority provided to us by the State that would support this proposition, and we are not pointed to any statutory provision that would authorize secure detention in these circumstances. As the power to place a juvenile in secure detention is entirely statutory in basis, and as our review of the reasons given for departure is de novo, we conclude that the reasons given by the trial court are not founded in the statute, and fall far short of being clear and convincing. See J.J. v. Fryer, 765 So.2d 260, 265 (Fla. 4th DCA 2000); S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996).

Accordingly, we have issued the writ of habeas corpus.

WRIT ISSUED.

GRIFFIN and EVANDER, JJ., concur.

      . K.I. does not contest the contempt order.


author: EVANDER, J.

text:
    Stanley Louis TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2469.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant entered a no contest plea to the charge of failure to register as a sexual offender. § 943.0435, Fla. Stat. (2004). He reserved the right to appeal the court’s denial of his motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm.

In 1998, appellant was adjudicated guilty in Minnesota of an offense he admits was comparable to that defined in section 800.04(4)(a), Florida Statutes (2004). He was 17 years old at that time. Pursuant to Minnesota law, he was required to register in Minnesota as a sexual offender, notwithstanding the fact that he was sentenced as a juvenile offender. On April 3, 2005, he was arrested in Florida on two misdemeanor charges, as well as the subject failure to register as a sexual offender charge.

Appellant contends that he was not required to register in Florida as a sex offender and, therefore, his motion to dismiss should have been granted by the trial court. If appellant’s juvenile adjudication had occurred in Florida, his argument would have merit. State v. J.M., 824 So.2d 105 (Fla.2002). In J.M., our supreme court held that an adjudication of delinquency did not constitute a felony criminal conviction for purposes of adjudicating a person to be a sexual predator. However, an analysis of section 943.0435 leads us to find that appellant was, indeed, required to register as a sexual offender in Florida. In 2002, section 943.0435(l)(a), Florida Statutes, was amended to add subsections (3) and (4). These subsections provided alternative provisions by which an individual could be defined to be a sexual offender. Subsection (3) defined a sexual offender to include a person who:

[Ejstablishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction;....

Appellant falls squarely within this provision.

We further reject appellant’s equal protection argument. When a statute implicates fundamental rights or concerns a suspect class, the statute is to be analyzed under a strict scrutiny test. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). However, section 943.0435(l)(a) does neither and, accordingly, is to be analyzed under a rational basis test. Doe v. Moore, 410 F.3d 1337 (11th Cir.2005). Here, the Legislature had a rational basis to include in its definition of “sexual offender,” Florida residents who had been designated sexual offenders by another state.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

      . Lewd or lascivious battery on a person 12 years of age or older but less than 16 years of age.


author: LAWSON, J.

text:
    Billy Roy CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3731.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.

      James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Billy Carter appeals from an order determining that he qualifies as a “sexual offender” under section 943.0435, Florida Statutes (2005). We agree with the trial court’s determination, and affirm.

In relevant part, section 943.0435 directs that a person be treated as a sexual offender if he or she has (1) been convicted of one of the sexual offenses enumerated in that statute, or of a “similar offense” in another jurisdiction; and (2) was released from the sanction imposed for the conviction on or after October 1, 1997. “Convicted” is expressly defined to mean “that there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld.” § 943.0435(l)(b), Fla. Stat. (2005). A “sanction imposed” for a conviction is expressly defined to include probation. § 943.0435(l)(a)2, Fla. Stat. (2005).

The record in this case is ■ clear that Carter pled nolo contendere on November 19, 1997, to the offense of sexual assault of a child in the District Court of Hardin County, Texas. That offense is a violation of Texas Penal Code section 22.011(a)(2), the elements of which are virtually identical to the charge of sexual battery defined in section 794.011, Florida Statutes. Adjudication was withheld, and Carter was placed on probation for ten years. After two years, Carter applied for early termination of his probation. Carter’s motion was granted on November 24, 1999. Therefore, he was released from his sanction in Texas after October 1, 1997. By the express térms of section 943.0435, Florida Statutes, Carter therefore qualifies as a sexual offender based upon his 1997 Texas conviction.

AFFIRMED.

THOMPSON and PALMER, JJ., concur.

      . The only discernible difference between the two laws is that Florida’s statute provides differing offense levels based upon the age of the child. The Texas statute, by contrast, provides that the intentional or knowing penetration or union of the anus or sexual organ of any child younger than 17 years of age by any means (or the penetration of the mouth of the child by the sexual organ of the actor) constitutes a second degree felony. Sexual battery arising under section 794.011, Florida Statutes, is one of the offenses enumerated in section 943.0435, Florida Statutes.


text:
    James P. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2085.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    James P. Anderson, pro se, Appellant.
    Charlie Crist, Attorney General, and Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order dated July 28, 2006, the appeal is hereby DISMISSED. See Bennett’s Leasing, Inc. v. First Street Mortgage Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003); Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005). See also, Lopez v. McDonough, 935 So.2d 47 (Fla. 1st DCA 2006) (treating petition that sought review of an indigency order, which had been the subject of an interlocutory motion for reconsideration, as an appeal from the final order dismissing the petitioner’s mandamus petition).

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


text:
    Bobby L. MAGWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3729.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    Bobby L. Magwood, pro se, Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the order denying relief disposed of only seven of the ten claims, this appeal is dismissed for lack of jurisdiction. See Edler v. State, 673 So.2d 970, 971 (Fla. 1st DCA 1996) (holding that an order disposing of less than all of the postconviction claims is not a final appeal-able order). Therefore, we dismiss the appeal without prejudice to appellant’s filing an appeal of a final order disposing of all the issues raised in his motion.

DISMISSED.

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


text:
    Daniel DOTSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1618.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    Daniel Dotson, pro se, Appellant.
    Charles Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of July 13, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on March 20, 2006, appealing the order on the appellant’s postconviction motion, rendered on February 13, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the unauthorized motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. RApp. P. 9.110(b).

DISMISSED.

ALLEN, WEBSTER, and DAVIS, JJ„ concur.


text:
    Neftali CALDERON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4067.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2006.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See City of Orlando v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970).

THOMPSON, PALMER and LAWSON, JJ., concur.


text:
    Orlando HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2924.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2006.

      Orlando Henderson, Trenton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

GRIFFIN, THOMPSON, and EVANDER, JJ., concur.


text:
    Benito BENAVIDES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2105.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2006.
    Benito Benavides, Century, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Gethers v. State, 838 So.2d 504 (Fla.2003).

GRIFFIN, TORPY and EVANDER, JJ., concur.