author: THOMAS, J.

text:
    Dexter ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0098.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant, Dexter Robinson, appeals the trial court’s order revoking his probation. Because the trial court did not abuse its discretion when it found that Appellant willfully and substantially violated his probation, we affirm.

Under the terms of his probation, Appellant was expected to file a monthly report by the 5th of each month and comply with his probation officer’s instructions. At the violation of probation hearing, his probation officer testified that Appellant violated his probation when he failed to comply with these requirements. She explained that Appellant failed to report for his probation appointment on October 4, 2005, which was scheduled to enable Appellant to timely complete his monthly report. Appellant reported to the office the next day, approximately 20 minutes after the office closed. The probation officer testified that she spoke to Appellant through the locked door and specifically instructed him to report to the office at 10:00 am on October 6. Appellant failed to show, and instead turned himself in at the jail on October 19. Appellant testified that he could not make his appointment on October 4 because he worked late, and he came to the office on October 5 because he thought a late appointment was available. Appellant testified that he failed to show on October 6 because he “knew he would be violated” and because he had transportation problems. Appellant admitted that he never called his probation officer to explain his whereabouts on October 6.

Revocation of probation orders are reviewed under an abuse of discretion standard. Blackshear v. State, 838 So.2d 1228, 1229 (Fla. 1st DCA 2003). “[F]ailure to file a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence.” State v. Carter, 835 So.2d 259, 261 (Fla.2002) (citing Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988)). Although the supreme court has explained that there may be circumstances in which revoking an appellant’s probation based on failure to file a single report would be “patently unfair,” it would not be unfair based on the circumstances here. See id. at 262. Appellant failed to complete his report by the assigned date and did not attempt to file it shortly thereafter. In addition, he did not inform his probation officer of a transportation problem or attempt to explain the situation. Although Appellant testified that he turned himself in because he knew he would be violated, he waited two weeks before doing so; therefore, the trial court did not abuse its discretion in finding that Appellant willfully and substantially violated his probation when he failed to file the monthly report.

AFFIRMED.

WOLF and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: ERVIN, J.

license: Public Domain

text:
    Robert E. MIMS, Appellant, v. CONFEDERATED STAFFING, and Unisource Administrators, Inc., Appellees.
    No. 1D05-5175.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.

      Jonathan Israel and Anthony G. Papa of Harrell & Harrell, P.A., Jacksonville, for Appellant.
    David M. Havlicek of Kelley, Kronen-berg, Gilmartin, Fichtel & Wander, Orlando, for Appellees.
   ERVIN, J.

This is an appeal from a final workers’ compensation order denying appellant Robert E. Mims’ claims for compensability of his back condition and authorization of a neurologist. We affirm the order of denial as it relates to the authorization of a neurologist, but reverse the judge of compensation claims’ (JCC’s) denial of the com-pensability of the back condition because more than 120 days had expired from the initial provision of benefits by the carrier to the claimant, thereby waiving its right to deny compensability of the injury. See § 440.20(4), Fla. Stat. (2008).

On December 31, 2003, claimant injured his lower back while employed by the ap-pellee, Confederated Staffing. Shortly thereafter, the employer accepted the injury’s compensability and commenced the payments of both medical and indemnity benefits. Claimant’s authorized orthopedist, Dr. Michael Scharf, initially diagnosed a disc herniation at the L4-5 level, with chronic low back pain. On June 24, 2004, a laminectomy was performed, and Dr. Scharfs note of the same date stated that the surgery disclosed spinal stenosis with no evidence of disc herniation. On November 15, 2004, Dr. Scharf informed the E/C’s attorney that 100 percent of claimant’s need for medical treatment was caused by pre-existing degenerative changes due to claimant’s personal condition, spinal stenosis. On December 17, 2004, claimant filed a petition for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of claimant’s treating physician attributing the cause of claimant’s condition to the spinal stenosis.

Following the hearing, the JCC accepted the opinion of the physician that the claimant’s injury was wholly attributable to his preexisting condition, and therefore found that his “current condition is not compen-sable as it did not arise out of the course and scope of his employment and no further treatment is awarded.” The judge further concluded there was nothing in the record that would have reasonably placed the E/C on notice of claimant’s personal condition being the major contributing cause of the injury until the conference between its attorney and Dr. Scharf on November 15, 2004, and, because the E/C denied further medical treatment within 120 days from the notification it had then received, the compensability of the injury was deemed timely denied. Based on these findings, the JCC refused both the claims for compensability of the claimant’s back condition and authorization of a neurologist. We cannot agree with the judge’s denial in regard to the compensa-bility of the injury to claimant’s back.

If a carrier fails to contest com-pensability of an injury within 120 days from the initial provision of benefits or the payment of compensation, the burden of producing evidence is clearly placed on it by section 440.20(4) to “establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.” As in Boyett v. Wal-Mart, 906 So.2d 1216, 1219 (Fla. 1st DCA 2005), neither the judge’s order in the case at bar nor the record before us reveals the existence of material facts disclosing the carrier’s inability to commence a reasonable investigation within the statutory period. Although we acknowledge that nothing in the medical records prior to the laminectomy conducted on June 24, 2004, placed the E/C on notice that the back injury suffered by claimant during the course of his employment was not the major contributing cause of his condition, we are unable to uncover any support in the record for the judge’s finding that such notice was not received by the carrier until the conference of November 15, 2004.

Dr. Scharfs surgery notes of June 24, 2004, should have reasonably brought to the carrier’s attention the fact that claimant’s personal condition preexisted the industrial accident, thereby alerting it to the necessity of beginning an investigation, yet it failed to take any action within 120 days from such notice. The carrier presented no evidence that Dr. Scharf did not provide his office notes to it, that he misled it, or that his notes were lost or misplaced. The only evidence offered by the carrier as an excuse for its failure to deny within the 120-day period was that it only actually became aware as of November 15, 2004, that the industrial accident was not the major contributing cause of the injury. The statute does not, however, provide that the carrier have nothing less than actual notice, but rather that it have sufficient information to enable it to deny compensability within 120 days. See id.

In our judgment, the carrier had such information through the provision of Dr. Scharfs notes. In fact, this court’s case law interprets the statute’s language pertaining to the commencement of the running of the 120-day period from the initial provision of benefits to mean the date the employee first visits an authorized physician, which could “produce the first available information useful to the employer and carrier to determine whether the injury is compensable.... ” Osceola County Sck. Bd. v. Arace, 884 So.2d 1003, 1006 (Fla. 1st DCA 2004). In the present case, the record clearly establishes that claimant’s first visit to the office of Dr. Scharf, the authorized physician, occurred well before the performance of the laminectomy of June 24, 2004, and the surgical notes of the same date, with the result that the E/C’s subsequent denial of compensability after the conference of November 15, 2004, must be deemed to be a waiver of its right to contest the compensability of the back condition by reason of the expiration of the requisite 120-day period.

We agree, however, that the JCC correctly denied the claim seeking authorization of a neurologist. As this court observed in Checkers Restaurant v. Wiethoff, 925 So.2d 348, 351 (Fla. 1st DCA 2006) (en banc), while section 440.20(4) does bar the carrier from denying compensability after the expiration of the 120-day pay-and-investigate period, it does not have the effect of precluding the carrier from denying a specific claim for benefits on the ground that the injuries resulting from the com-pensable accident were not the major contributing cause of claimant’s need for such benefits. In Checkers, the JCC’s finding that claimant’s industrial injuries were no longer the major contributing cause of any continuing need for further treatment or surgery was based on medical evidence showing that the major contributing cause of claimant’s requests was a pre-existing condition, and not the industrial injuries. The same situation exists in the present case. Claimant’s attending physician opined that all of the claimant’s current need for medical treatment was caused by her prior personal condition, not the industrial accident.

Under the circumstances, we consider that the issue of claimant’s entitlement to the authorization of a neurologist is controlled by the rule stated in Checkers, and this court’s earlier decision in Clements v. Walt Disney World Co., 819 So.2d 1014 (Fla. 1st DCA 2002). In Clements, the carrier, as here, authorized medical treatment for an exacerbation of the employee’s disc condition during claimant’s employment, and treatment for same continued for more than 120 days. Thereafter, the authorized physician recommended a laminectomy for the back condition, for which the claimant sought approval, and the carrier timely denied. In affirming the JCC’s denial of the claim, we noted that the recommended surgery was not intended to address the exacerbation, which the E/C had accepted as compensa-ble, but to resolve the entire disc herniation, which medical evidence revealed had occurred before the work-related accident. Id. at 1015. We concluded that the provisions of section 440.20(4) applied only to the compensability of the exacerbation of the condition, and not to a major surgical procedure which involved a condition that had pre-existed the work-related accident. We decided that under such circumstances, the provisions of section 440.192(8), Florida Statutes (2000), relating to the carrier’s obligations in responding to a petition for benefits, governed, and because the carrier had timely denied the specifically requested surgery just after it had been claimed, it could not be deemed to have waived its right to contest. We reach a similar result in the present case. The E/C at bar timely denied the petition seeking the authorization of a neurologist within 14 days after the receipt of the petition.

AFFIRMED in part, REVERSED in part, and REMANDED.

WEBSTER, and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    Gina M. STOLTZ, Appellant, v. James F. TRUITT and Johnny Watson, Appellees.
    No. 1D05-4726.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.

      Jeffrey P. Whitton, Panama City, for Appellant.
    Patrick J. Faucheux, Panama City, for Appellees.
   PER CURIAM.

Appellant, Gina Stoltz, appeals the trial court’s order denying her complaint for specific performance filed against Appel-lee, James Truitt, and the trial court’s order granting Appellee, Johnny Watson’s eviction action. Because we find that the trial court did not abuse its discretion, we affirm.

Appellant purchased a home in 2002 and attempted to secure refinancing in early 2003. WOien she was unable to secure conventional financing, Mr. Truitt offered to purchase the home for $5000 over the outstanding mortgage, lease the home back to Appellant, and give Appellant an option to purchase the home within two years. Appellant agreed, and in February 2003 closed the sale at a title office, signed the lease agreement, paid the first month’s rent, and signed the option to purchase. The option to purchase provided, in part, that

4) ANY default by the Purchaser on that certain lease agreement between the parties regarding the subject property shall automatically void this Option, and the Purchaser shall be responsible for any costs incurred in connection with the default and its effect hereto, including a reasonable attorney’s fee.

Based on this provision, the trial court found that the option to purchase was voided in May 2003 when Appellant paid her rent on May 28 rather than “on the first day of the month” as the lease agreement provided. The trial court further found that Appellant substantially breached the lease agreement when she failed to pay the rent on the first day of the month numerous times over the lease term.

The decision to grant or deny specific performance is a matter that lies within the sound discretion of the trial court. Jordan v. Boisvert, 632 So.2d 254, 256 (Fla. 1st DCA 1994). While forfeitures are not favored, a forfeiture will be enforced where it is clear that the parties intended such a result. Nelson v. Hansard, 143 Fla. 898, 197 So. 513, 514 (1940). However, due to this harsh result, a court of equity will “always mitigate forfeitures when it can be done without doing violence to the contract of the parties.” Rader v. Prather, 100 Fla. 591, 130 So. 15, 16-17 (1930) (citing McCaskill v. Union Naval Stores Co., 59 Fla. 571, 52 So. 961, 962 (1910)). A court of equity, though, will not grant relief from a situation traceable to a party’s own neglect, gross negligence, or willful and persistent violations of the contract. Nelson, 197 So. at 514; Rader, 130 So. at 18.

Inequitable forfeiture is applicable where a party has substantially complied with the terms of the agreement. Grover v. Jacksonville Golfair Inc., 914 So.2d 995 (Fla. 1st DCA 2005) (Thomas, J., concurring); see also Smith v. Winn Dixie Stores, Inc., 448 So.2d 62 (Fla. 3d DCA 1984) (explaining that it was unconscionable to approve a forfeiture where a long-term lease existed, there was no default in rent, and the lessee promptly cured a city violation by paying the $495 fine). An increase in property value over the term of a lease is not enough to mitigate a forfeiture where Appellant has done nothing to bring about the increased value. Cf. Roschman Partners v. S.K. Partners I, Ltd., 627 So.2d 2, 3 (Fla. 4th DCA 1993) (holding that forfeiture was inequitable where purchaser hired experts to improve the property and attorneys to rezone the property which substantially increased the value), with August Tobler, Inc. v. Goolsby, 67 So.2d 537, 538 (Fla.1953) (holding that the equities involved did not lead to an unconscionable result where purchaser planned to use the land for a particular purpose and brought lumber to the site after he defaulted on the agreement).

Here, the parties intended that a forfeiture could result because Appellant signed the option to purchase which specifically provided that any default would result in forfeiture. The forfeiture is clearly attributable to Appellant’s own neglect because she defaulted multiple times over the term of the lease agreement. In addition, Appellant did not substantially comply with the terms of the agreement or do anything to increase the home’s value which would make it inequitable to enforce the forfeiture. Therefore, the trial court did not abuse its discretion in denying Appellant’s complaint for specific performance and finding it could not grant relief based on the doctrine of inequitable forfeiture.

AFFIRMED.

WOLF, PADOVANO and THOMAS, JJ., concur.


text:
    Stephen D. LOBRANO, Former Husband, Appellant, v. Cynthia BROCATO, Former Wife and Elizabeth G. Ruckelshuas, Appellees.
    No. 1D06-2555.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.

      Stephen D. Lobrano, pro se, Appellant.
    Thomas E. Bishop, Jacksonville; Elliot Zisser of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A. Jacksonville; Stephen 0. Parker, Jacksonville and Michael G. Tanner, Jacksonville, for Appellees.
   PER CURIAM.

Having considered the parties’ responses to this Court’s orders dated June 16, 2006, and August 2, 2006, the appeal is hereby DISMISSED for lack of jurisdiction. The order on appeal does not bring an end to the judicial labor required by the intervener’s complaint, which was filed in this dissolution of marriage proceeding, nor has the dissolution of marriage proceeding come to an end.

All pending motions are hereby denied as moot.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    Dennis DODGE, Leigha Rae Feyen, Leonard Paul Hebb, Christina Inserillo, Janice Overturf, Laura Deagle, Sunny Wood, Clifton Jones, Richard Lucas and Robert Klaproth, Jr., Appellants, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    No. 1D06-0454.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.
    Robert R. Berry, Viera, for Appellants.
    Sharon S. Traxler, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See D.A.B. Constructors, Inc. v. Dep’t of Transp., 656 So.2d 940, 944 (Fla. 1st DCA 1995).

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


author: MAY, J.

text:
    Edward M. POSNER, Petitioner, v. Toni A. POSNER, Respondent.
    No. 4D06-2588.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, and Jonathan S. Root of Graner Root & Heimovics, P.A., Boca Ra-ton, for petitioner.
    David Leacock and Howard M. Rudolph of Rudolph & Leacock LLP, West Palm Beach, for respondent.
   MAY, J.

A discovery dispute brings this case to the court. The husband’s father filed a petition for writ of certiorari to quash that portion of an order of the trial court overruling his objections to certain interrogatories propounded by his son’s wife in their dissolution proceeding. We grant the petition, issue the writ, and quash the challenged portion of the order of the trial court.

In this dissolution proceeding, the wife deposed the husband’s father, who testified that he and his wife had lent the couple substantial sums of money during their marriage. The father refused, however, to discuss whether he lent money to his daughter, a non-party to the dissolution proceeding. The wife sought to compel answers to those deposition questions. The trial court granted the motion, but directed the wife to propound interrogatories to the father in lieu of another deposition.

At a temporary relief hearing, the husband called his father to testify regarding the financial support given to him by his father. As a result of the testimony, the trial court found the gifts from the husband’s parents did not fit within the Ordi-ni exception and therefore did not include the monies as part of the husband’s income. See Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997).

The wife subsequently served interrogatories on the husband’s father. The first fifteen questions concerned the father’s support of his daughter. The father served his objection to the interrogatories and argued that he should not be forced to disclose financial records irrelevant to any economic issues in the dissolution proceeding. The trial court overruled the father’s objections to interrogatories one through fifteen, but sustained his objections to the remaining interrogatories. It is from this order that the father seeks review. The wife has filed a cross-petition challenging that portion of the order in which the trial court sustained the father’s objections.

The father argues that the financial information of private persons is protected by Florida’s constitutional right of privacy where there is no compelling reason for disclosure. See Art. I, § 23, Fla. Const.; Mogul v. Mogul, 730 So.2d 1287 (Fla. 5th DCA 1999). He suggests that what he has given or lent to his daughter and how she supports herself is irrelevant to his son’s dissolution proceedings. We agree.

The interrogatories do not address the father’s financial dealings with his son; they are aimed at the father’s financial dealings with his daughter, a non-party. They have no relevance to the dissolution proceeding between the son and his wife. The court deviated from the essential requirements of the law in requiring the father to disclose this information. See Straub v. Matte, 805 So.2d 99 (Fla. 4th DCA 2002). We therefore grant the petition, issue the writ, and quash that part of the discovery order overruling the father’s objections to interrogatories one through fifteen.

As the wife’s cross-petition seeks review of the denial of discovery, we do not accept jurisdiction of it. This issue may be raised on a plenary appeal from the final judgment of dissolution. See Barrett v. Callaway, 842 So.2d 1056 (Fla. 4th DCA 2003).

Petition Granted.

GUNTHER and FARMER, JJ., concur.


text:
    Ronald S. WITT, Appellant, v. Vanessa GOBEN, Appellee.
    No. 1D06-0441.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.
    E. Jane Brehany, Pensacola, for Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Based upon the record evidence before the trial court when the order on appeal was entered, we find competent substantial evidence to support the findings of the trial court in establishing shared parental responsibility, with child’s primary residence with appellee. Thornber v. City of Fort Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988)(“An appellate court will not consider evidence that was not presented to the lower tribunal because the function of an appellate court is to determine whether the lower tribunal committed error based on the issues and evidence before it.”); see generally Philip J. Padovano, Florida Appellate Practice, § 9.2 at p. 156 (2006 ed.)(“Appellate review is confined to the record of the proceedings in the lower tribunal.”); see also Clark v. Clark, 825 So.2d 1016, 1018 (Fla. 1st DCA 2002)(recognizing that in making child custody determinations, trial court is confined to the record presented). Accordingly, we find no abuse of discretion, Dudley v. Dudley, 899 So.2d 483, 484 (Fla. 1st DCA 2005)(holding our review of child custody decision is subject to deferential abuse of discretion standard of review), and affirm.

AFFIRMED.

BROWNING, C.J., BARFIELD, and VAN NORTWICK, concur.


author: ALTENBERND, Judge.

text:
    Christian OLIVER, Scott Vanover, and BlueSky Mast, Inc., a Florida corporation, Appellants, v. V. Charles STONE, Appellee.
    No. 2D06-1064.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.

      Scott A. Frick of Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A., Tampa, for Appellants.
    Stanford R. Solomon and Hallie S. Evans of The Solomon Tropp Law Group, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Christian Oliver and Scott Vanover, the defendants in an action brought by V. Charles Stone to judicially dissolve Anten-naMast Solutions, Inc., and BlueSky Mast, Inc. (BlueSky), a nonparty in the action below, seek review of an unusual nonfinal order that was entered eleven months after rendition of the final judgment. We conclude that the trial court had no authority to enter the order in this proceeding. We reverse without prejudice to any right that Mr. Stone may have to obtain comparable relief in a new proceeding or within a pending bankruptcy proceeding.

Mr. Stone filed an action in 2003 against Mr. Oliver, Mr. Vanover, and Antenna-Mast seeking in part to dissolve Antenna-Mast under section 607.1430, Florida Statutes (2003). The lawsuit generally alleged that AntennaMast was a deadlocked corporation due to disagreements among the parties. Initially, Mr. Stone and Mr. Oliver each owned fifty percent of the stock of AntennaMast. Mr. Oliver allegedly appointed Mr. Vanover chief operating officer of AntennaMast without a meeting of the board of directors or Mr. Stone’s knowledge or consent. Thereafter, Mr. Oliver and Mr. Vanover created BlueSky, allegedly to compete with AntennaMast or otherwise interfere in its business. Ultimately, the trial court determined that AntennaMast should be permitted to purchase all of Mr. Stone’s interest in the corporation pursuant to section 607.1436.

During the discovery phase of this lawsuit, Mr. Stone sought to obtain from An-tennaMast, BlueSky, Mr. Oliver, and Mr. Vanover copies of business records and other documents relating to the value of Mr. Stone’s shares in AntennaMast. He scheduled many people for deposition, intending to question them about these documents. Mr. Oliver, Mr. Vanover, and An-tennaMast maintained that the documents were confidential and sought protective orders from the trial court. In order to protect the confidential information, the trial court entered three protective orders.

The orders required the parties to execute a “Confidentiality Agreement” that is not included in our record. In general, these orders allowed production of documents and discovery in a manner that permitted Mr. Stone’s lawyers, paralegals, and experts to have access to the documents but prohibited Mr. Stone himself from having personal access to the confidential information. The orders contained language providing that the documents not “be disclosed in any fashion to any other person, including but not limited to [Mr. Stone] without the consent of all parties or court order.”

Mr. Stone retained a valuation expert who prepared a valuation report based on these documents. Although Mr. Stone apparently paid for the preparation of this report and it was introduced into evidence at the trial in this matter, Mr. Stone has never been allowed to review the report or the documents supporting it.

Following a nonjury trial, the trial court entered an “order of stock valuation” in October 2004. Mr. Stone’s fifty percent interest in AntennaMast was determined to be worth approximately $76,000. The order instructed counsel for all parties to return to opposing counsel by December 15, 2004, all discovery and other confidential information obtained during discovery. The court retained jurisdiction to ensure compliance with its confidentiality order. The order states that the confidentiality order “shall not merge” into any subsequent order of the court.

The claims against Mr. Oliver and Mr. Vanover were dismissed with prejudice in March 2005. In April 2005, the trial court entered a final judgment based on its earlier stock valuation order, requiring AntennaMast to pay Mr. Stone approximately $80,000 for his ownership interest. As required by Florida Rule of Civil Procedure 1.560(c), the judgment contained language maintaining jurisdiction for compliance with the postjudgment discovery provisions of Florida Rule of Civil Procedure Form 1.977.

AntennaMast did not satisfy this judgment. As a result, Mr. Stone attempted to collect the judgment. AntennaMast filed for bankruptcy on July 19, 2005, and received the benefit of an automatic stay. 11 U.S.C. § 362. Thereafter, Mr. Stone sought relief in the bankruptcy court from the stay “solely to enable him to return to State Court and obtain ... an order granting Stone full access” to the valuation report. The trustee for AntennaMast initially opposed this motion but later consented to the request. The bankruptcy court entered an order permitting Mr. Stone to seek such relief in the circuit court.

Mr. Stone then filed a motion in the circuit court seeking access not only to the valuation report but also access to a large body of additional documents that apparently are still in the possession of Mr. Stone’s attorney. It does not appear that this motion was served on any of the parties to this action like a summons for a new lawsuit. The trustee for Antenna-Mast has not participated in the renewed proceedings in the circuit court, but apparently does not object to Mr. Stone viewing the valuation report.

Mr. Oliver, Mr. Vanover, and BlueSky voluntarily appeared before the circuit court. Their attorney represented that they had no objection to Mr. Stone’s receipt of the valuation report, but they objected to Mr. Stone’s review of additional documents that they claimed were still confidential. The trial court modified its earlier protective orders to allow Mr. Stone access to the documents. As if it were a pretrial discovery problem, the new order required Mr. Oliver and Mr. Van-over to create a privilege log for the documents that still require confidentiality protection and contemplated that the parties would handle these disputes with additional hearings before the circuit court.

The trial court cannot be faulted for its willingness to be helpful in this unusual situation. On the other hand, we are hesitant to approve a procedure that is not recognized in the Florida Rules of Civil Procedure and results in a series of ap-pealable nonfinal orders entered after final judgment. See Fla. R.App. P. 9.130(a)(4).

The trial court’s method for granting Mr. Stone access to the documents was improper. It is well established that a trial court may reconsider and modify interlocutory orders at any time until final judgment is entered. See, e.g., Hunter v. Dennies Contracting Co., 693 So.2d 615 (Fla. 2d DCA 1997). All interlocutory proceedings, however, are merged into and disposed of by the final judgment. See Duss v. Duss, 92 Fla. 1081, 111 So. 382, 385 (1926). After entry of the final judgment, “[t]he trial court’s authority to modify, amend, or vacate an order or final judgment after rendition of the final judgment is limited to the time and manner provided by rule or statute.” Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1388-89 (Fla. 3d DCA 1986) (stating generally that a trial court loses jurisdiction to modify orders after the rendition of the final judgment and the expiration of the ten-day period to file a motion for rehearing). Id. at 1388 n. 2. Thus, once the trial court’s judgment became final in this case, its inherent authority to reconsider and modify the interlocutory protective orders appears to have ceased. Thereafter, if a problem arose as a result of the content of the protective order and the parties were unable to resolve it without judicial intervention, the problem could only be addressed by a new order issued by a court with proper subject matter jurisdiction and with jurisdiction over the necessary parties.

Mr. Stone is seeking access to the valuation report and other financial documents, depositions, and exhibits. We first note that all of the parties seem to agree that Mr. Stone can obtain a copy of the valuation report. Since the original protective orders allow documents to be subsequently obtained by “consent of all parties,” at this point it appears Mr. Stone can obtain the valuation report without a court order.

As to the remaining documents, it does not appear that the scope of the bankruptcy court’s order authorizes a lifting of its automatic stay for the purposes of the proceedings contemplated by the circuit court in its modification of the protective orders. We express some skepticism about the reasons that Mr. Stone is seeking this information. Mr. Stone claims he needs this information to collect upon a judgment. However, in light of the bankruptcy proceeding, that judgment is now merely a claim against the assets of Anten-naMast’s bankruptcy estate. Any assets that Mr. Stone might discover in gaining access to the documents would become assets of the bankruptcy estate. Nothing in this record suggests that his claim has a priority that promises a significant recovery in that proceeding. Thus the trustee, who is not a party to this appeal, seems to be using Mr. Stone as an agent to gather the assets of the estate. The bankruptcy court, albeit inadvertently, is using the circuit court as a magistrate to resolve discovery issues that seem to be matters better suited for resolution in the bankruptcy court.

Normally, when collection on a judgment becomes complex, the plaintiff initiates supplementary proceedings pursuant to section 56.29, Florida Statutes (2005). Such proceedings are served like a new lawsuit. § 56.29(3). For such a proceeding in this case to be served on AntennaMast, the bankruptcy court would probably need to issue another order. However, rather than seeking this order from the bankruptcy court, Mr. Stone sought to aid collection on the judgment by asking the trial court to modify the protective orders.

We are unconvinced that the language reserving jurisdiction in the nonfi-nal order on valuation or in the final judgment permits the trial court to reopen proceedings at any future date to adjust the language of its protective orders. The language of the protective orders permits future relief by “court order.” It does not suggest that this specific circuit court in the original proceeding must be the court that provides relief. Our concerns are heightened in this case because the protective orders addressed some documents of BlueSky, which has never been a party to these proceedings.

Nothing in the protective orders suggests that the bankruptcy court cannot provide the future relief contemplated. If there are procedural reasons why the bankruptcy court cannot or will not provide that relief, it appears to this court that Mr. Stone would need to file a new state court action seeking declaratory relief or other relief to obtain the “court order” authorizing disclosure of these documents.

Reversed and remanded.

CASANUEVA and STRINGER, JJ„ Concur.

      . BlueSky, an appellant on this appeal, was never made a party to the lawsuit in the trial court.

      . In light of the provision in the valuation order requiring the return of all confidential documents, we are not entirely certain what documents Mr. Stone’s attorney still possesses.

      . The parties have not treated AntennaMast as an appellee. Without resolving the issue of whether the trustee is or should be a party to this appeal, we have not listed the trustee in the style.


author: STRINGER, Judge.

text:
    Pisces Antwain SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3414.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Pisces Smith appeals the revocation of his probation following an evidentiary hearing. We affirm the revocation of Smith’s probation but remand to the trial court for entry of a corrected written order of revocation.

The affidavit of violation of probation that was at issue during the revocation hearing alleged that Smith had violated condition (5) of his probation by committing six new law offenses, namely trafficking in cocaine, conspiracy to traffic in cocaine, escape, driving while license suspended or revoked, obstructing an officer with violence, and giving a false name to a police officer. The affidavit also alleged that Smith violated condition (3) by moving from his approved residence and condition (9) by failing to comply with the instructions of his probation officer. At the start of the revocation hearing, the State indicated that it was not going to seek to revoke Smith’s probation based on the trafficking and conspiracy offenses but that it would go forward with evidence on the remaining allegations.

At the conclusion of the evidentiary hearing, the trial court stated on the record that it was finding that Smith violated condition (5) of his probation by committing an escape, by giving a false name to a police officer, and by driving while his license was suspended. The trial court also found that Smith had violated condition (9). However, the trial court refused to find that Smith had violated condition (5) by obstructing an officer with violence or to find that Smith had violated condition (3).

Despite these specific oral findings, the written order revoking Smith’s probation states that the conditions violated were “not stated.” Clearly, the written order does not comport with the trial court’s oral pronouncement, which did include specific findings as to specific conditions. Moreover, the written order is facially deficient because it does not set forth the conditions violated. See Singleton v. State, 633 So.2d 529, 530 (Fla. 2d DCA 1994) (noting that the written order of revocation must set forth the conditions violated). Therefore, we remand for the trial court to enter a corrected written order of revocation that specifies the conditions violated as found at the hearing.

Affirmed and remanded with instructions.

FULMER, C.J., and THREADGILL, EDWARD F., JR., Senior Judge, Concur.


author: SILBERMAN, Judge.

text:
    Ronald James DALY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-530.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.
    James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Ronald James Daly appeals his sentence for burglary of a dwelling with assault or battery imposed at a resentencing hearing after the postconviction court granted his motion for postconviction relief. Because, as the State concedes, Daly was resen-tenced without counsel, we reverse his sentence and remand for another resentenc-ing hearing.

A criminal defendant has the right to the assistance of counsel at a resentencing hearing when the original sentencing error was a judicial error rather than a clerical error. See Nickerson v. State, 927 So.2d 114, 117 (Fla. 2d DCA 2006); see also Wells v. State, 789 So.2d 1092, 1093 (Fla. 2d DCA 2001) (“An indigent prisoner is entitled to the appointment of counsel at resentencing following a successful motion for postconviction relief.”). Here, the postconviction court granted relief based on a judicial error in sentencing but resentenced Daly without the assistance of counsel. Daly did not waive his right to counsel. In fact, he told the postconviction court that he wanted but could not afford counsel. The court did not address Daly’s indigency or appoint counsel for resentencing even though the court had previously appointed counsel for Daly and subsequently appointed counsel for this appeal.

Therefore, we reverse Daly’s sentence and remand for a resentencing hearing at which Daly shall have the right to be represented by counsel, unless he waives that right. See Nickerson, 927 So.2d at 118.

Reversed and remanded for resentenc-ing.

KELLY and WALLACE, JJ., Concur.


author: WHATLEY, Judge.

text:
    John William BUCHAN, individually and on behalf of his minor child, John Thomas Buchan, Appellant, v. Steve E. HIBBARD, Appellee.
    No. 2D05-4179.
    District Court of Appeal of Florida, Second District.
    Oct. 25, 2006.
    Angela D. Flaherty of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones & Kro-tec, Sarasota, for Appellant.
    Peter M. Collins, Sarasota, for Appellee.
   WHATLEY, Judge.

John William Buchan appeals an order granting Steve E. Hibbards motion to dissolve an amended final judgment of injunction for protection against domestic violence. Hibbard is married to Buchan’s former wife. We affirm that part of the order dissolving the injunction as to Bu-chan without discussion, but we reverse that portion of the order dissolving the injunction entered in favor of Buchan’s minor son.

The original final judgment of injunction for protection against domestic violence was issued on July 14, 2004, pursuant to section 741.30, Florida Statutes (2004). At the hearing on this original injunction, Buchan testified that Hibbard is married to Buchan’s former wife and that when he was dropping off his son at his former wife’s house, Hibbard shot Buchan in the neck in front of his son. Hibbard presented no witnesses or argument challenging the issuance of the injunction.

Thereafter, on June 24, 2005, Hibbard moved to dissolve the injunction, arguing that the injunction had been improperly issued pursuant to section 741.30, because there was no evidence that Buchan’s son had been the victim of domestic violence or that he had reasonable cause to believe that he was in imminent danger of becoming a victim of domestic violence. The circuit court granted Hibbard’s motion without allowing Buchan’s son to testify at the hearing. The court found that it lacked jurisdiction to issue the injunction because the proper way to resolve this matter was in the dissolution proceeding.

We conclude that the circuit court’s ruling was erroneous. Section 741.30(l)(b) specifically states that an injunction may be sought regardless of whether any other cause of action is currently pending between the parties. Therefore, the circuit court erred in finding that it did not have jurisdiction over this subject matter.

However, Hibbard argues on appeal that the circuit court’s order should be affirmed, because the injunction was improperly issued pursuant to section 741.30. We disagree. The original petition for injunction for protection against domestic violence alleged, and Buchan testified at the original hearing regarding, facts that show Buchan’s son had reasonable cause to believe that he was in imminent danger of becoming a victim of domestic violence pursuant to section 741.30(l)(a). Domestic violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2).

Section 741.30(6)(b)(2) provides that, in deciding whether a person has reasonable cause to believe that he is in imminent danger of becoming a victim of domestic violence, the court must consider “[wjhether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.” See Campbell v. Campbell, 584 So.2d 125, 127 (Fla. 4th DCA 1991) (“Surely, fear that a custodial parent will be assaulted or battered by a non custodial parent constitutes an act of domestic violence as to their child.”). Here, the minor child heard Hibbard threaten to kill Buchan, and the child saw Hibbard shoot his father in the neck. Therefore, there was evidence that Buchan’s son had reasonable cause to believe that he was in imminent danger of becoming a victim of domestic violence. Hibbard presented no evidence at either the hearing on the original injunction or the hearing on the motion to dissolve the injunction regarding whether his stepson had reasonable cause to believe that he was in danger of becoming a domestic violence victim.

Further, it was improper for the circuit court to dissolve the injunction without allowing Buchan’s son an opportunity to testify. Bond v. Bond, 917 So.2d 268, 271 (Fla. 5th DCA 2005) (holding that the circuit court erred in terminating a hearing on a domestic violence injunction without allowing the petitioner the opportunity to present evidence that facts met the requirements of section 741.28); York v. McCarron, 842 So.2d 281 (Fla. 1st DCA 2003) (concluding that circuit court erred in denying appellant’s motion to dissolve an injunction without allowing her to present evidence at the hearing); Madan v. Madan, 729 So.2d 416 (Fla. 3d DCA 1999) (same).

Accordingly, we affirm the order dissolving the injunction as to Buchan but reverse that portion of the order dissolving the injunction as to his son and direct the circuit court to reinstate the injunction as to the minor son. See Ga. Banking Co. v. GMC Lending & Mortgage Servs. Carp., 923 So.2d 1224, 1226 (Fla. 3d DCA 2006).

Affirmed in part; reversed in part.

WALLACE, J., Concurs.

FULMER, C.J., Concurs in result only.

      . See Evans v. Evans, 599 So.2d 205 (Fla. 2d DCA 1992).

      . On November 23, 2004, an amended final judgment of injunction for protection against domestic violence was entered pursuant to a stipulation of the parties.

      . It should be noted that section 741.30(l)(c) provides that, "In the event a subsequent cause of action is filed under chapter 61, any orders entered therein shall take precedence over any inconsistent provisions of an injunc-lion issued under this section which addresses matters governed by chapter 61."

      .Buchan's son appears to be a family or household member, because he is related by marriage to Hibbard and he has in the past resided together with Hibbard in the same single dwelling unit. § 741.28(3).


author: ALLEN, J.

text:
    GULF POWER COMPANY, a foreign corporation for profit, registered in Florida, Appellant, v. Eva M. HARPER, a single woman, George D. Holland, III, a married man, Debra Holland Byrd, an unmarried woman, Terry L. Rackley, a married man, and Sherryl J. Rackley, a married woman, individually, and on behalf of a class of other persons similarly situated, Appellees.
    No. 1D05-6202.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.

      J. Nixon Daniel, III and Terrie L. Didier of Beggs & Lane, Pensacola, for Appellant.
    Jill Lyon and Brett Kilbourne of United Telecom Council, Washington, D.C., as Amicus Curiae in support of Gulf Power Company.
    David K. Miller of Broad and Cassel, Tallahassee; and Guyte P. McCord, III and Gary M. Ketchum of McCord, Bubsey & Ketchum, L.L.P., Tallahassee, for Ap-pellees.
   ALLEN, J.

In this case Gulf Power Company is appealing an order by which the circuit court determined that Gulf Power was using certain easements in a manner which exceeds the scope of Gulf Power’s easement rights. Pursuant to that ruling, the court entered a summary judgment in favor of the appellees on their request for a declaratory judgment. That claim was presented in one count of a seven-count complaint. While the dispute in the summary judgment was treated as a threshold issue it did not resolve all of the other issues, and numerous claims remain pending below. Because all of the claims involve the same factual setting and the same parties, and are interdependent and interrelated, the challenged order is non-final and non-appealable as explained in Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974). See also Kirkland v. State of Florida, Department of Health and Rehabilitative Services, 489 So.2d 800 (Fla. 1st DCA 1986).

The summary judgment was entered on the appellees’ claim for a declaratory judgment with regard to a dispute over easement rights. In their complaint the appellees also sought supplemental relief upon particular claims in connection with the easement dispute, presenting various theories with requests for damages and injunctive relief. In addition, the ap-pellees indicated in the complaint that they desired class certification, so that the matter could be pursued as a class action. Although the other claims and issues apart from the summary judgment remain outstanding, Gulf Power asserts that an appeal may be obtained upon the summary judgment because it involves a declaratory judgment claim and such judgments are themselves accorded the force and effect of a final judgment. See § 86.011. However, while a declaratory judgment may be ap-pealable when it is unaccompanied by other claims, that does not avoid the non-appealable nature of the order in the present case, under the dictates of Mendez. And Gulf Power’s suggestion that an appeal should be afforded as an evolution of declaratory judgment law is likewise unavailing, as this court is not at liberty to assume jurisdiction which has not been properly conferred. Furthermore, Gulf Power’s reliance on Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996), is unwarranted as that case addressed a situation involving an insurance coverage dispute between an insured and the insurer, in a proceeding where the insured was being sued by an injured party. Canal Insur- anee led to the adoption of what is now Florida Rule of Appellate Procedure 9.110(m), which permits an appeal in such circumstances. But Canal Insurance and rule 9.110(m) do not provide a separate right to appeal outside of those limited circumstances. See Mercury Insurance Co. of Florida v. Markham, 938 So.2d 607 (Fla. 1st DCA 2006).

In accordance with Mendez the challenged order in this case is non-final and non-appealable, and this appeal is therefore dismissed.

DAVIS and POLSTON, JJ., concur.


text:
    John D. COGBILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3504.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.

      John D. Cogbill, pro se, Petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

John D. Cogbill presents a timely claim of ineffective assistance of appellate counsel. We disagree with Cogbill’s contention that his appellate counsel overlooked an issue of fundamental error in the jury instructions, and therefore deny the petition.

Law enforcement officers went to Cog-bill’s residence to serve an arrest warrant for delinquent child support. The officers knocked on the garage door and Cogbill answered, walked past the officers, placed his hands behind his back, and said, “Well, let’s go. My life is over.” Through the open doorway, the officers smelled fumes and observed objects that led them to suspect that the premises contained a meth lab. A subsequent search of the garage and adjoining living area conducted pursuant to a search warrant led to the discovery of bottles of pseu-doephedrine and other substances, objects, and devices commonly used in the production of methamphetamine. Among the objects were a number of Mason jars containing liquids that were believed to include methamphetamine oil. Cogbill’s fingerprints were found on the bottom of one of the Mason jars, and testing revealed methamphetamine in one of the samples seized from the scene.

Cogbill was charged by amended information with trafficking in methamphetamine and possession of paraphernalia. As to the trafficking charge, the amended information alleged the following:

JOHN D. COGBILL, on or about the 23rd day of July, 2003, in the County and State aforesaid, did unlawfully and knowingly be in actual or constructive possession of 28 grams or more of methamphetamine or any mixture containing methamphetamine or ephedrine in conjunction with other chemicals and equipment utilized in the manufacture of methamphetamine, in violation of Section 893.135(f)lb [sic], Florida Statutes.

Although the amended information charged Cogbill only with trafficking by actual or constructive possession, the jury was instructed, without objection, that it could find him guilty if the evidence established that he “knowingly manufactured or possessed” methamphetamine or a mixture containing methamphetamine. In addition, the state argued, again without objection, that the jury could return a guilty verdict upon a finding that Cogbill engaged in either possession or manufacture. The jury subsequently returned a verdict finding Cogbill guilty of the trafficking offense as charged.

In his present petition, Cogbill argues that his appellate counsel was ineffective for failing to argue that fundamental error occurred when the jury was instructed on an uncharged alternate form of conduct constituting the offense of trafficking, specifically the “manufacture” of methamphetamine. He relies in this regard on a line of cases generally holding that where an offense can be committed in more than one way, instructing the jury on an alternate theory not charged in the information constitutes fundamental error. See, e.g., Eaton v. State, 908 So.2d 1164 (Fla. 1st DCA 2005); Griffis v. State, 848 So.2d 422 (Fla. 1st DCA 2008). He further relies on authorities holding that despite the absence of a timely objection by trial counsel, appellate counsel will be deemed ineffective for failing to raise an issue of this sort. See Rogers v. State, 935 So.2d 639 (Fla. 1st DCA 2006); Hodges v. State, 878 So.2d 401 (Fla. 4th DCA 2004).

In relevant part, section 893.135(l)(f) defines trafficking in amphetamine as follows:

(f) 1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 14 grams or more of amphetamine, ... or methamphetamine, ... any mixture containing amphetamine or methamphetamine, or phenylacetone, phenyla-cetic acid, pseudoephedrine or ephedrine in conjunction with other chemicals and equipment utilized in the manufacture of amphetamine or methamphetamine, commits a felony of the first degree, which felony shall be known as “trafficking in amphetamine,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The statute sets forth a number of alternate forms of conduct, any of which constitute the proscribed offense. Among these are the “manufacture” of the prohibited substances, or the “actual or constructive possession” of those substances. In addition to instructions defining actual or constructive possession, the jury in this case was also provided the following definition of “manufacture”:

“Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin or independently by means of chemical synthesis. It can also be made by a combination of extraction and chemical synthesis.

Although it is undisputed that Cog-bill was not charged with trafficking by manufacture, we conclude that instructing the jury that he could be convicted upon proof of either actual or constructive possession or manufacture, as that term was defined for the jury, did not constitute fundamental error. In Debose v. State, 920 So.2d 169 (Fla. 1st DCA 2006), we reiterated the general rule that where an offense can be committed in more than one way, fundamental error occurs when the jury is instructed on an alternate theory not charged in the information and returns a general verdict of guilt without specifying the basis for the conviction. In our view, such an error is fundamental in nature because under a general verdict, it is in most cases “impossible to determine whether [the defendant] was convicted of a charged or uncharged offense.” Id. at 170; see also Eaton v. State, 908 So.2d 1164, 1165 (Fla. 1st DCA 2005)(“[s]ince the jury returned a general verdict of guilty ... it is impossible to determine whether appellant was convicted of a charged or an uncharged offense”); Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004)(“[a]s the State rightly concedes, this error is fundamental because the jury returned a general verdict of guilt without specifying the basis for the conviction, making it impossible to know whether Vega was convicted of the form of battery with which he was charged rather than the form with which he was not charged.”).

In this instance, however, it is entirely possible to conclude that Cogbill was not convicted of an uncharged crime. Certainly, one may possess a prohibited substance without engaging in the act of manufacture. Thus, had Cogbill been charged only with trafficking by manufacture, the inclusion of instructions allowing a finding of guilt based on mere possession would be fundamental error. On the other hand, we can conceive of no circumstance, particularly under the facts of this case, whereby one could engage in the act of manufacture, as that term was defined, without also being in actual or constructive possession of the prohibited substance. Thus, since the acts constituting manufacture are wholly subsumed within the more broadly defined circumstances constituting actual or constructive possession, it can be determined with certainty that instructing the jury on the uncharged alternative of manufacture did not result in a circumstance in which Cogbill was at risk of being convicted of an uncharged crime.

We therefore conclude that any error in this regard was not fundamental in nature. Alleged errors in jury instructions are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. See State v. Delva, 575 So.2d 643 (Fla.1991). In light of our conclusion that the instructions in this case were not fundamentally erroneous and the fact that no objection to those instructions was raised at trial, any alleged error was not preserved for appellate review. Appellate counsel is not ineffective in failing to raise an issue which is not properly preserved. See McKinney v. Wainwright, 458 So.2d 1149 (Fla. 1st DCA 1984). Accordingly, we deny the petition alleging ineffective assistance of appellate counsel.

PETITION DENIED.

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Byron LOWERY, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-4330.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.

      Byron Lowery, pro se, Appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the circuit court’s order denying appellant’s petition for writ of mandamus. However, to the extent that appellant contests the circuit court’s imposition of a lien for appellate costs, we treat this request as if it had been properly filed as a motion for review pursuant to Florida Rule of Appellate Procedure 9.430. See Wagner v. McDonough, 930 So.2d 710 (Fla. 1st DCA 2006); Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006); Fla. R.App. P. 9.040(c) (providing that if a party seeks an improper remedy, the cause will be treated as if the proper remedy had been sought). We grant the motion to review and quash the portion of the circuit court’s order dated September 27, 2005, which authorized the Department of Corrections to impose a lien on appellant’s inmate trust account. This proceeding is a collateral criminal proceeding, and, therefore, there is no statutory authority for the circuit court to impose a lien to recover costs and fees. See Wagner, 927 So.2d at 217.

BARFIELD, WEBSTER, and POLSTON, JJ., concur.


text:
    INTERSTATE FIBERNET, INC., a Delaware Corporation, Appellant, v. Eva M. HARPER, a single woman, George D. Holland, III, a married man, Debra Holland Byrd, an unmarried woman, Terry L. Rackley, a married man, and Sherryl J. Rackley, a married woman, individually, and on behalf of a class of other persons similarly situated, Appellees.
    No. 1D06-083.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.
    John R. Beranek, C. Gary Williams and Stephen C. Emmanuel of Ausley & McMullen, Tallahassee, for Appellant.
    Jill Lyon and Brett Kilbourne of United Telecom Council, Washington, D.C., as Amicus Curiae in support of Gulf Power Company.
    David K. Miller of Broad and Cassel, Tallahassee; and Guyte P. McCord, III and Gary M. Ketchum of McCord, Bubsey & Ketchum, L.L.P., Tallahassee, for Ap-pellees.
   PER CURIAM.

In this case Interstate Fibernet, Inc., appeals from the same summary judgment order involved in Gulf Power Co. v. Harper, No. 1D05-6202, 940 So.2d 535, 2006 WL 3024956 (Fla. 1st DCA Oct.26, 2006). Interstate Fibernet was a defendant in the lower court along with Gulf Power Company, and with the appellees’ complaint presenting the same claims against both defendants. As explained in this court’s Gulf Power opinion, the challenged order is non-final and non-appealable. This appeal is therefore dismissed.

ALLEN, DAVIS and POLSTON, JJ., concur.


text:
    Christine C. JABLONSKI, Wife, Appellant, v. Henry Louis JABLONSKI, III, Husband, Appellee.
    No. 1D06-4004.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.
    E. Jane Brehany, Pensacola, for Appellant.
    Aaron B. Wentz, Fort Walton Beach, for Appellee.
   PER CURIAM.

This appeal is hereby dismissed as premature. Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995).

ALLEN and BENTON, JJ., concur.

HAWKES, J., concurs in result.


text:
    PITA BAKERIES OF AMERICA, INC., Appellant, v. OLD DOMINION INSURANCE COMPANY, Appellee.
    No. 1D06-2933.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.
    Thomas F. Rosenblum, Jacksonville, for Appellant.
    Susan S. Oosting, Jacksonville, for Ap-pellee.
   PER CURIAM.

The appellee has filed a motion to dismiss this appeal as untimely. Upon consideration of the appellant’s response to the Court’s order directing it to show cause why the motion should not be granted, the Court has determined that the notice of appeal was not timely filed. The thirtieth day following rendition of the order on appeal was Friday, June 2, 2006. The notice of appeal was filed on the following Monday, June 5, 2006. Therefore, the notice failed to timely invoke the Court’s appellate jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appellee’s motion is granted and the appeal is hereby dismissed for lack of jurisdiction.

ALLEN, BENTON, and HAWKES, JJ., concur.


author: LAWSON, J.

text:
    Catoga YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2928.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.

      James Sweeting, III, of James Sweeting, III, P.A., Winter Garden, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Catoga Young appeals from his conviction of conspiracy to traffic in more than 400 grams of cocaine, raising two issues. First, he argues that the evidence was insufficient to support the conviction. Second, he argues that the trial court abused its discretion by denying a pre-trial motion to continue. We disagree, and affirm.

With respect to the first issue, “the crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of this crime.” Ramirez v. State, 371 So.2d 1063, 1065 (Fla. 3d DCA 1979) (citing King v. State, 104 So.2d 730 (Fla.1958)). A conspiracy may be proven with circumstantial evidence, Wilder v. State, 587 So.2d 543, 546 (Fla. 1st DCA 1991), and proof of a formal agreement is not necessary. Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975). However, evidence that the defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime, is insufficient to support a conspiracy conviction. Jimenez v. State, 535 So.2d 343 (Fla. 2d DCA 1988). Rather, the state’s evidence must show that the defendant entered into an agreement with another to commit the crime, and intended to commit the crime. Id.; Ramirez, 371 So.2d at 1065.

In the instant case, the State’s evidence showed that Young and his father both discussed and arranged the drug transaction, by telephone, with undercover agents. The call started with Young’s father on the line, and he agreed to a price. The father then passed the phone to Young, who discussed the quality of the drugs desired. Young explained that: “I cook my shit, you know what I’m saying?” At trial, the agents testified that this meant Young intended to convert the powder cocaine into crack. Because the process involves “cutting in” another substance (such as baking powder), the cocaine needed to be pure. The agent explained to Young that the cocaine was pure, and assured that: “If you guys ain’t happy with it, you say, yo, this isn’t gonna work, you know, and we can part ways. You take your money. I take my stuff.” The agent then asked Young to confirm that he had the $10,500 that his father had represented. Young confirmed that he did, and the parties agreed to meet.

At the pre-arranged meeting, it was Young who initially showed the cash to the agents. Young also went to the agents’ car to inspect the cocaine. The agents weighed the drugs out for Young, who then “reached in, smelled it, and broke a piece off to verify its purity, its content.” Young then “smelled it again, brought it up to his nose,” and told the agents that he was pleased with the quality. Young and the agents again talked about the purity of the cocaine, with the agents assuring Young that it could be “cooked.” Young then announced that he was “straight,” which the officers explained as street slang indicating that the transaction was “on.” Young then exited the agents’ undercover car, and went back to his car to confer with his father. After conferring with Young, the father then entered the agents’ car and concluded the transaction. Immediately after the transaction was complete, a “take-down” crew was signaled, and Young and his father were arrested. They were placed in the back of a patrol car together, and their conversation was secretly taped. While in the patrol car, Young asked his father to say that the deal was all his, but exclaimed that “they” had been set up.

Clearly, this evidence shows more than mere presence at the scene, or knowledge of the crime. It also shows more than mere aiding and abetting. Young was involved in every aspect of the transaction with his father. He helped arrange the transaction. He had control of the money. He approved the quality of the drugs. And, he very clearly communicated that he “cooked” his cocaine so that he could sell it as crack. His admission that “they” had both been set up also directly evidences the agreement between Young and his father to jointly commit the crime for which both had just been arrested. Given all of these facts, we find that the evidence was sufficient to support a conspiracy conviction. See Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991) (“Where, as here, the defendants are involved in a series of meetings, arrangements, and negotiations to sell or buy illegal drugs from an undercover police officer which eventually leads to such a sale or purchase, Florida courts have generally sustained convictions for conspiracy to commit the offense of drug trafficking based on this conduct.”) (citations omitted).

With respect to the second issue, the record does evidence that the defense made a motion to continue at some point prior to trial. However, the motion was not in writing and Young has not provided a transcript of the hearing at which the oral motion was made and denied. The record before us simply reflects that at trial Young’s counsel mentioned that he had asked for a continuance. However, counsel did not renew the motion and simply announced that he was ready for trial. Therefore, Young has failed to sustain his burden of establishing any error with respect to the trial court’s denial of his motion to continue. See Pedroni v. Pedroni, 788 So.2d 1138 (Fla. 5th DCA 2001) (explaining that a trial court’s ruling is “clothed with a presumption of correctness” which an appellant must overcome by providing the appellate court with a record sufficient to demonstrate the alleged error and support a claim for reversal).

AFFIRMED.

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

      . The following exchange took place: "AGENT: You got the ten-five he says? YOUNG: Right. AGENT: You got the green? YOUNG: Yeah.”


author: EVANDER, J.

text:
    Herman Raymond SHEPARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4122.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.

      James S. Purdy, Public Defender, and Noel A. Pelella, 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.
   EVANDER, J.

Herman Shepard timely appeals from his judgments and sentences for armed trafficking in cocaine, possession of a controlled substance, and armed trafficking in hydrocodone. The sole issue on appeal is whether the trial court violated Shepard’s double jeopardy rights by recalling the parties after the sentencing hearing had concluded and changing his oral pronouncement of “concurrent” to “consecutive” on one of Shepard’s sentences. Pursuant to our supreme court’s decision in Ashley v. State, 850 So.2d 1265 (Fla.2003), we are compelled to reverse.

Shepard was tried by a jury and found guilty of the above-recited offenses. At the sentencing hearing, the trial judge orally pronounced that he was sentencing Shepard to thirty years in prison on Count I and five years on Count II, with these sentences to run consecutively. As to Count III, the trial court pronounced:

[T]he Court will commit you to the custody of the Department of Corrections of the State of Florida and be imprisoned in Florida State Prison for 30 years ... and that sentence will be concurrent with the sentences imposed in Counts I and II.

The court further imposed the minimum mandatory terms required for Counts I and III. After advising Shepard of his right to appeal and after confirming with the attorneys that no other matters needed to be addressed, the trial judge stated: “Then these proceedings are closed.”

Approximately fifty minutes later, the judge recalled the parties and stated:

[I]n finishing the paperwork following the sentencing in this case, it came to the Court’s attention that I had made a mistake and had inadvertently used the word ‘concurrent’ in a circumstance in which I had fully intended and determined to use the word ‘consecutive.’

Over defense counsel’s objection, the trial court then sentenced Shepard to thirty years on Count I, five years on Count II, and thirty years on Count III — all sentences to run consecutively.

Significant to our analysis is that the trial judge’s originally pronounced sentence was neither ambiguous nor illegal. Comtois v. State, 891 So.2d 1130 (Fla. 5th DCA 2005). We find our supreme court’s decision in Ashley to be controlling.

In Ashley, the defendant was charged with possession of a firearm by a convicted felon. Prior to trial, the state filed a notice of intent to classify Ashley as a habitual violent felony offender (HVFO) based on a prior robbery conviction. At trial, the jury found Ashley guilty as charged on the possession of firearm offense.

At the sentencing hearing, the prosecutor requested that Ashley be sentenced as an HVFO. Defense counsel requested the trial court exercise its discretion not to sentence Ashley as an HVFO. On the following day, the trial court pronounced sentence. The trial court orally sentenced Ashley as a habitual felony offender (HFO) and sentenced him to twenty-five years in prison. At the conclusion of the hearing, the trial court stated: “Take Mr. Ashley back to begin his sentence.” At no time during the hearing did the trial court pronounce Ashley a habitual violent felony offender.

The written judgment and sentence indicated that Ashley had been sentenced as an HVFO to twenty-five years in prison with no minimum mandatory term noted on the written form. Three days later, Ashley was brought back to court and orally sentenced to twenty-five years as an HVFO. For the first time, the court imposed a ten-year minimum mandatory term. The new written judgment and sentence was consistent with the court’s second oral pronouncement.

The First District Court of Appeal rejected Ashley’s double jeopardy claim, finding the trial court’s imposition of an HFO sentence:

[W]as the result of a simple mistake about what had been noticed and then proven the day before. It was not a discretionary judgment based on the facts to impose a lighter sentence.

Ashley v. State, 772 So.2d 42, 43 (Fla. 1st DCA 2000). The supreme court reversed, finding the resentencing of Ashley violated Ashley’s constitutional right against double jeopardy. The court went on to state:

Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.

Ashley, 850 So.2d at 1267. The court recognized that the trial judge’s failure to state the word “violent” during the initial sentencing pronouncement may well have simply been an oversight. Nonetheless, the court found double jeopardy principles barred the trial judge’s second effort to sentence Ashley.

The state argues that because the oral pronouncement conflicted with the written sentence, this court would have the authority to remand the case back to the trial court to resolve the conflict between the written order and the oral pronouncement. Coleman v. State, 898 So.2d 997, 998 (Fla. 2d DCA 2005). Therefore, the state contends the trial judge had the authority to resolve the conflict before the filing of a notice of appeal. We cannot accept this argument because, unlike Coleman, the trial court’s oral pronouncement in this case was unambiguous.

The state further argues that Ashley is distinguishable because the trial court corrected its error within an hour. We would initially note that it would certainly have been permissible for the trial court to correct its misstatement prior to the conclusion of the sentencing hearing. See Johnson v. State, 608 So.2d 138 (Fla. 4th DCA 1992); Farber v. State, 409 So.2d 71 (Fla. 3d DCA 1982). However, as previously stated by this court, the trial court’s pronouncement becomes final when the sentencing hearing ends. See Colon v. State, 905 So.2d 1000 (Fla. 5th DCA 2005); Comtois. Colon and Comtois are consistent with our supreme court’s decision in Troupe v. Rowe, 283 So.2d 857 (Fla.1973). In Troupe, the trial court had accepted the defendant’s plea, imposed sentence, and concluded the sentencing proceeding. Later that day, the trial court changed its mind, declined to accept the plea, and ordered the parties to proceed to trial. The Florida Supreme Court ultimately entered an order prohibiting the retrial of the defendant. The court found that a “final, conclusive judgment and sentence” had been pronounced by the trial judge. Accordingly, jeopardy was found to have attached — notwithstanding the short time period between the conclusion of the initial sentencing proceeding and the court’s decision to no longer accept the defendant’s plea.

We recognize that our decision may place additional responsibilities on our already overburdened trial court judges. However, in Ashley, the supreme court found that to hold otherwise “does serious harm to the double jeopardy principles which have guided our courts for centuries.” Ashley, 850 So.2d at 1268-1269.

REVERSED and REMANDED.

SAWAYA and TORPY, JJ„ concur.


text:
    Gary C. QUILLING, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3000.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.
    Gary C. Quilling, Monticello, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the denial of Gary Quilling’s motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Quilling misconstrues the mandatory minimum sentencing laws applicable to him. Those laws set forth the minimum, but not the maximum sentences that must be imposed for the designated offenses. The general sentencing statutes establish the maximum penalties. We agree with Mr. Quilling that the trial court misperceived his motion as one filed under Florida Rule of Criminal Procedure 3.850. Mr. Quilling’s motion, while lacking merit, was properly filed under rule 3.800 and should not be deemed to be a rule 3.850 motion.

AFFIRMED.

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


text:
    Michael Douglas SANDERS, Petitioner, v. STATE of Florida, et al, Respondent.
    No. 5D06-2846.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.
    Michael Douglas Sanders, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Michael Douglas Sanders seeks a writ of mandamus. He alleges that on December 11, 2005, he filed motions to dismiss property liens for bond forfeiture in three separate cases and the trial court failed to rule on these motions. On September 26, 2006, in response to this court’s show cause order, the trial court entered separate orders in each case directing Sanders to refile his motion within 30 days because, upon review of the court files, they did not contain Sanders’ motions.

Thus, it appears that the trial court never ruled upon Sanders’s motions because they were not properly before the trial court. Accordingly, there is no basis for mandamus at this time. Should the trial court later fail to rule upon Sanders’s refiled motions in a timely manner, he may pursue mandamus relief at that time. The petition is denied without prejudice.

PETITION DENIED WITHOUT PREJUDICE.

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


author: THOMPSON, J.

text:
    Robert L. FELDER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1427.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.

      Robert L. Felder, Raiford, pro se.
    No Appearance for Respondent.
   THOMPSON, J.

Robert Lee Felder was originally charged in three cases with capital sexual battery and other crimes. He entered into a negotiated plea agreement with the State in exchange for a lesser charge and the dismissal of other charges. This is his tenth collateral action in his 18-year-old case. After receiving Felder’s response to this court’s show cause order, we deny Felder’s petition. State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999).

We hold that Felder is barred from further pro se filings in this court on the basis' that his pleadings have become an abuse of process which is contrary to the Criminal Appeal Reform Act of 1996. This Act establishes the intent of the legislature that the terms and conditions of collateral review and the procedural bars to collateral review be strictly enforced. Metaphorically speaking, Felder will not be allowed any more bites at the appellate apple. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); Carter v. State, 931 So.2d 1045 (Fla. 4th DCA 2006) (“Appellant’s repeated filing of frivolous appeals is diminishing this court’s ability to consider legitimate claims.”); see also Britt v. State, 931 So.2d 209 (Fla. 5th DCA 2006) (finding defendant’s pro se filings were frivolous, an abuse of process, and a waste of the taxpayer’s money).

Accordingly, to conserve judicial resources, we prohibit Felder from filing with this court any further pro se pleadings concerning Seventh Judicial Circuit Court case numbers 88-2217-CFAES and 88-2034-CFAES. The Clerk of this Court is directed not to accept any further pro se filings concerning these two cases and any more pleadings regarding these cases will be summarily rejected by the Clerk, unless they are filed by a member in good standing with 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); see, e.g., Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

Petition for Writ of Mandamus DENIED, Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

PALMER and EVANDER, JJ., concur.


author: PALMER, J.

text:
    Shelli STONE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-394.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.

      Shell! Stone, Ocala, pro se.
    James S. Purdy, Public Defender and Ailene S. Rogers, 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.
   PALMER, J.

Shelli Stone (defendant) appeals the trial court’s order summarily denying her Florida Rule of Criminal Procedure 3.850 motion seeking postconviction relief. Although the defendant’s motion was facially insufficient, the trial court did not allow her leave to amend the motion before denying the motion for being facially insufficient. Accordingly, we affirm without prejudice to the defendant to later file a facially sufficient motion. See Nelson v. State, 875 So.2d 579 (Fla.2004).

AFFIRMED.

THOMPSON and TORPY, JJ., concur.