author: WELLS, Judge.

text:
    Alicia RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-818.
    District Court of Appeal of Florida, Third District.
    March 29, 2006.
    Opinion Denying Rehearing and Certifying Conflict Oct. 18, 2006.
    Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.

      Before FLETCHER, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Alicia Rivera appeals the denial of a petition for writ of prohibition in which she sought to prevent the Honorable Rosa F. Figarola, County Court Judge, from presiding over a contempt proceeding. We treat this appeal as a petition for writ of certiorari, which we grant. See Stambaugh v. State, 891 So.2d 1136, 1138 (Fla. 4th DCA 2005) (noting that certiorari lies from a circuit court order denying prohibition against a county court).

On March 13, 2002, Rivera pled guilty in county court to possession of less than 20 grams of marijuana, a first degree misdemeanor, was adjudicated guilty, and was ordered to perform 150 hours of community service at a rate of 15 hours a month. On October 30, 2003, over nineteen months later, the court was notified that Rivera had failed to perform any of the community service hours ordered. A bench warrant and show cause order were issued.

Rivera sought to dismiss the show cause order, arguing that the county court’s jurisdiction had expired. The motion was denied as was her petition for writ of prohibition in the circuit court.

We agree with Rivera that the trial court lacked jurisdiction to sanction her for failing to perform public service. Section 921.187(1)(a)10 of the Florida Statutes authorizes a court to order public service as one of a number of alternative dispositions in a criminal case:

(1) The alternatives provided in this section for the disposition of criminal cases shall be used in a manner that will best serve the needs of society, punish criminal offenders, and provide the opportunity for rehabilitation.
(a) If the offender does not receive a state prison sentence, the court may:
10. Require the offender to perform a specified public service pursuant to s. 775.091.

See also § 948.01(4), Fla. Stat. (2002) (providing that the length of public service ordered may not exceed the length of “the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed 2 years, whichever is less”).

Sections 775.091 and 948.031 “indicate that such service is to be considered either as an extra sanction or as an additional condition of probation.” State v. Muoio, 438 So.2d 160, 163 (Fla. 2d DCA 1983); see also State v. Jones, 525 So.2d 512, 513 (Fla. 4th DCA 1988) (suggesting that on remand “if the court decides to continue the public service requirement, it should be made clear that it is a condition of probation in conformity with section 948.031”); § 948.01, Fla. Stat. (2002) (governing “[w]hen court may place defendant on probation or into community control” and providing for duration of public service program). Since it “has long beeii the rule that ‘upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation,’ ” we agree that the order denying Rivera’s motion to dismiss must be quashed. State v. Hall, 641 So.2d 403, 404 (Fla.1994) (quoting Carroll v. Cochran, 140 So.2d 300, 301 (Fla.1962)); see also § 948.04(2), Fla. Stat. (2002) (stating that “[u]pon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed”).

Accordingly, certiorari is granted and this matter remanded to the circuit court to grant prohibition barring further proceedings against Rivera in this case in the county court.

ON MOTION FOR REHEARING

We deny rehearing. However, we certify that our decision is in conflict with Housing Auth. of Tampa v. Burton, 873 So.2d 356, 357 (Fla. 2d DCA 2004).

The State argues that Beshaw v. State, 586 So.2d 1284, 1284 (Fla. 3d DCA 1991) (concluding that “that the proper method of review from a final order of the circuit court denying a petition for writ or prohibition is by appeal”), and State v. Brown, 527 So.2d 207, 208 (Fla. 3d DCA 1987) (“The order of prohibition which .concluded the proceeding is thus appealable as a matter of right by the State — as it would be by any other litigant — as an appeal from a final order or judgment.”), mandate that the circuit court’s order denying the instant petition for writ of prohibition be treated as an appeal from a final order. We disagree.

We find Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998), postdating both Beshaw and Brown, to be dispositive. In Sheley, the Florida Supreme Court addressed district court review of a circuit court order denying a petition for writ of mandamus which, like the instant petition filed in the circuit court below, sought appellate review of a lower tribunal order (there an administrative order). In deciding that the district court properly treated review of the order denying the writ of mandamus as a certiorari rather than an appeal, the Florida Supreme Court stated:

Sheley claims that the district court erred in treating his appeal as a petition for writ of certiorari. He contends that he was entitled to a full review on the merits of his claim rather than a review under the more restrictive standard that applies to petitions for writ of certiorari. We disagree.
Mandamus is an accepted remedy for reviewing an order of the Florida Parole Commission. Griffith v. Florida Parole and Probation Comm’n, 485 So.2d 818 (Fla.1986). Such petitions are properly directed to the circuit courts. Jones v. Florida Dep’t of Corrections, 615 So.2d 798 (Fla. 1st DCA 1993). A circuit court order denying relief is renewable in the district court by certiorari pursuant to Florida Rule of Appellate Procedure 9.030, which provides in relevant part:
(2) Certiorari Jurisdiction^ ] The certiorari jurisdiction of district courts of appeal may be sought to review
(B) final orders of circuit courts acting in their review capacity.
Fla. R.App. P. 9.030(b)(2).
The district court in the present case concluded that once an inmate has had a full review of a Parole Commission order in the circuit court, he or she is unenti-tled to a second full bite at the apple in the district court:
The inmate has already been afforded the right to review the Commission’s action on the merits by filing a petition for writ of mandamus in the circuit court. It would be illogical to provide the inmate a second opportunity for review on the merits by allowing a plenary appeal from the circuit court order. For these reasons, we treat the appeal as a petition for writ of certiorari and we review the case by the limited standard that applies when certiorari is used to review a prior appellate decision.

Sheley [v. Florida Parole Commission], 703 So.2d [1202] at 1206 [(Fla. 1st DCA 1997)].

The district court drew an analogy to two lines of eases: (1) those cases wherein a defendant files a petition for an extraordinary writ in circuit court to review an order of the county court; and (2) those cases governing secondary appellate review of local administrative action. In both lines of cases, the petitioner is unentitled to a second plenary appeal on the merits.

We agree with the district court’s reasoning and find its analogies apt. She-ley, we note, cites no statute or rule that would provide authority for a second plenary appeal of a Parole Commission order in the district court, nor does he advance any sound policy reason for formulating such a practice. Further, the district court in the present case reviewed Sheley’s petition and determined that “[t]here has been no showing that the circuit court failed to afford the inmate due process of law or that the court departed from the essential requirements of the law.” Sheley, 703 So.2d at 1206. We find that Sheley has been afforded extensive judicial review of his claim and has been deprived of no rights.

Based on the foregoing, we hold that once an inmate has had a full review on the merits of a Parole Commission order in the circuit court, he or she is not entitled to a second plenary appeal of the order in the district court....

Sheley, 720 So.2d at 217-18 (footnotes omitted).

Because the circuit court provided Rivera with a full review of the county court’s order denying her motion to dismiss when it considered her petition for writ of prohibition, we have declined to provide a second plenary appeal and have treated her appeal as a petition for writ of certiorari. See Stambaugh v. State, 891 So.2d 1136, 1138 (Fla. 4th DCA 2005)(“Certiorari lies from this circuit court order denying prohibition against the county court.”)

Rehearing denied; direct conflict certified.

      . The maximum amount of time to which Rivera could have been sentenced, and thus ordered to perform public service, was one year. See § 893.13(6)(b), Fla. Stat. (2002) (making possession of less than 20 grams of cannabis a misdemeanor of the first degree punishable under sections 775.082 or 775.083); § 775.082(4)(a), Fla. Stat. (2002) (the maximum sentence for a first degree misdemeanor is “a definite term of imprisonment not exceeding 1 year”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Adam V. ZELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0759.
    District Court of Appeal of Florida, First District.
    April 4, 2006.
    Adam V. Zellers, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001).

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Benjamin LYBRAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2112.
    District Court of Appeal of Florida, First District.
    May 30, 2006.
    Benjamin Lybrand, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    Geary Leon THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2228.
    District Court of Appeal of Florida, First District.
    June 14, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The opinion of May 12, 2005, is withdrawn on the court’s own motion and the following is substituted therefor.

AFFIRMED. State v. Dickey, 928 So.2d 1193 (Fla.2006).

ALLEN, DAVIS and PADOVANO, JJ, concur.


text:
    Darrell L. PASCHAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2094.
    District Court of Appeal of Florida, First District.
    June 14, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The opinion of May 6, 2005, is withdrawn on the court’s own motion and the following is substituted therefor.

AFFIRMED. State v. Dickey, 928 So.2d 1193 (Fla.2006).

ALLEN, DAVIS and PADOVANO, JJ., Concur.


text:
    FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFL-CIO, Appellant, v. STATE of Florida, Governor John Ellis “Jeb” Bush, Appellee.
    No. 1D05-3515.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Rehearing Denied Oct. 13, 2006.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee; Michael Mattimore and Avery McKnight of Allen, Norton & Blue, P.A., Tallahassee; William D. Salmon, Staff Attorney, Public Employees Relations Commission, Tallahassee, for Appellee.
   PER CURIAM.

Florida Public Employees Council 79, AFSCME, AFL-CIO (the union) appeals a final order of the Public Employees Relations Commission (PERC) that summarily dismissed an unfair labor practice (ULP) charge filed by it against the State of Florida. The union alleged that the state had committed a ULP by refusing to arbitrate a grievance concerning the layoff of certain personnel of the Department of Children and Families contrary to the procedure established in the parties’ collective bargaining agreement (CBA) which incorporated the provisions of Florida Administrative Code Rule 60K-17, governing layoffs based upon a “bumping” procedure. Because we conclude that the provisions of rule 60K-17 were revised by the “Service First” legislation, chapter 2001-43, Laws of Florida, and later implemented by rule 60L-33.004, establishing a new procedure for imposing layoffs, by taking into consideration comparative merit, demonstrated skills and the employee’s experience, we affirm the order of dismissal.

This case is remarkably similar in its facts to those in Florida Public Employees Council v. State, 921 So.2d 676 (Fla. 1st DCA 2006) (FPEC I). We are called upon to interpret the same CBA, the same legislation, and the same administrative rules that were previously before this court in FPEC I. We note that PERC there determined, as it has here, that the provisions in the CBA regarding the layoff of unit employees could no longer be enforced once the legislature enacted the Service First Initiative, which removed the subject of layoffs from the bargaining table. This court reversed PERC’s dismissal of the ULP for the reason that rule 60K-17 remained operative during the applicable time the layoffs occurred, which were the subject of the ULP charge. We do not reach the same result in the present case because at the time the reduction in the workforce of the Department of Children and Families took place, rule 60L-33.004 had already become effective, with the result that the state was no longer required to follow the procedure controlling layoffs as provided in rule 60K.-17. Such a contingency was in fact contemplated by the parties’ contract. Article 33 of the CBA explicitly states that if a provision of the contract contravenes any laws of the state by reason of “existing or subsequently enacted legislation,” such provision would no longer be applied or enforced.

Because rule 60L-33.004 superseded the procedure controlling layoffs of unit employees, the order of dismissal is

AFFIRMED.

ERVIN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Samuel James SHUMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4914.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.
    Rehearing Denied Oct. 12, 2006.

      Nancy A. Daniels, Public Defender; and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Samuel James Shuman (Appellant) contends that the trial court erred in denying a motion to suppress out-of-court and in-court identifications of him by an allegedly unreliable jail inmate based on an unduly suggestive photo procedure that raised a substantial likelihood of misidentification. See Manson v. Brathwaite, 432 U.S. 98, 107, 110 & 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Grant v. State, 390 So.2d 341, 343 (Fla.1980) (setting out appropriate two-step test for determining admissibility of out-of-court photo identification). We affirm. The State correctly responds that the trial court’s ruling is affirmable on either of two grounds. A defendant who pleads guilty must expressly reserve the right to appeal. See § 924.051(4) & -.06(3), Fla. Stat. (2003); Fla. R.Crim. P. 3.172(c)(4). An issue is preserved on a guilty plea only if it is dispositive of the case. See State v. Carr, 438 So.2d 826, 828 (Fla.1983). Appellant pled guilty without expressly reserving the right to appeal the denial of his motions to suppress. The parties did not stipulate that the issue is dispositive. Accordingly, the sole issue raised on appeal is not preserved. We need not address the State’s alternative ground for affirmance on the merits.

Appellant’s judgmenVsentence is AFFIRMED.

ERVIN, BENTON and BROWNING, JJ., concur.


author: STRINGER, Judge.

text:
    Michael GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3705.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 23, 2006.

      James Marion Moorman, Public Defender, and Lanitra Sanchez-Moore, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa,-for Ap-pellee.
   STRINGER, Judge.

Michael Grimsley raises four issues on review of his judgment and sentence for aggravated battery. We affirm Grimsley’s judgment and sentence but write to discuss one of the issues raised on appeal and an issue that was not raised on appeal.

Grimsley was charged with aggravated battery with great bodily harm or permanent disability or permanent disfigurement. The State’s theory at trial was that Grimsley attacked the victim, causing great bodily harm to him by inflicting a sinus bone fracture, an orbital fracture, and a hematoma. Grimsley’s defense at trial was self-defense.

During the jury charge conference, Grimsley requested instructions on both justifiable use of deadly force and justifiable use of nondeadly force. The court refused to give both instructions, and Grimsley asked for some time to decide which instruction to choose. After a recess, Grimsley chose the instruction on justifiable use of nondeadly force without further objection. On appeal, Grimsley argues that the trial court abused its discretion in denying his request for both instructions.

If the evidence does not establish that the force used by the defendant was deadly or nondeadly as a matter of law, then the jury should decide the question and the defendant is entitled to instructions on both justifiable use of deadly force and justifiable use of nondeadly force. Caruthers v. State, 721 So.2d 371, 371-72 (Fla. 2d DCA 1998); Mathews v. State, 799 So.2d 265, 266 (Fla. 1st DCA 2001); Williams v. State, 727 So.2d 1062, 1062 (Fla. 4th DCA 1999). The evidence in this case does not establish that the force used by Grimsley was deadly or nondeadly as a matter of law. Accordingly, Grimsley was entitled to both instructions.

However, we conclude that Grims-ley did not preserve this issue for review because counsel abandoned his request for both instructions by choosing the instruction on justifiable use of nondeadly force without further objection. Thus, Grimsley is not entitled to reversal on this basis.

There is an error in the jury instructions that would require a new trial regardless of Grimsley’s failure to object below; however, this error was not raised on appeal. Our review of the record revealed that the trial court erroneously gave the standard jury instruction regarding the forcible felony exception to self-defense. See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So.2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004). Although this court has determined that the giving of this instruction constitutes fundamental error under similar circumstances, see id., we are precluded from reviewing the issue because it was not raised on appeal. Our affirmance is therefore without prejudice to any right Grimsley might have to file a motion for appropriate postconviction relief.

Affirmed.

CANADY and LaROSE, JJ., Concur.


author: HAZOURI, J.

text:
    Edward MUNAO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2460.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 31, 2006.

      Roy Black and Christine M. Ng of Black, Srebnick, Kornspan & Stompf, P.A., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Edward Munao was convicted of child abuse and solicitation to commit aggravated battery. He was sentenced to five years on each count, to be served consecutively. Munao appeals his child abuse conviction asserting that oral statements alone cannot support a conviction for child abuse under section 827.03(1)(b), Florida Statutes. Munao also appeals both convictions alleging that the state introduced several highly prejudicial pieces of evidence during trial that amounted to fundamental error. We reverse Munao’s child abuse conviction and affirm Munao’s conviction for solicitation to commit aggravated battery without discussion.

Munao has two children with former girlfriend, Jodi Walsh: N.M. and K.M. N.M. began having behavioral problems at the age of four, two years prior to the incident that is the subject of the charges against Munao. Walsh, the custodial parent, testified that N.M. would swear at her, kick her, pull her hair, throw objects at her and disobey her. N.M.’s outbursts became progressively more violent over time, precipitated by Walsh placing restrictions on his activities. During these outbursts, N.M. typically called Munao on the phone.

The allegations in this case stem primarily from two such telephone conversations between Munao and his son, N.M., age six, on November 17, 2003 and November 18, 2003. N.M. called Munao after an outburst on November 17, 2003. Walsh listened to the conversation from another phone in the house. Walsh testified that Munao told N.M. to “go to the kitchen and get a knife and kill me (Walsh).” Walsh tape recorded a subsequent conversation between herself and N.M., during which N.M. told Walsh that Munao told him to “go in the kitchen, get a knife and stab her.” The tape of this conversation between Walsh and N.M. was played for the jury.

N.M. had another outburst the following day, November 18, 2003. N.M. called Mu-nao again. Walsh taped this conversation, which was played for the jury. The conversation, in pertinent part, proceeded as follows:

MUNAO: — me to do?
N.M.: I want you to do something.
MUNAO: I told you again (indiscernible), what did I tell you to do? Go in the kitchen—
N.M.: No.
MUNAO: Well, what do you want me to do?
N.M.: Something.
MUNAO: Do you want me to kill her for you?
N.M.: No.
MUNAO: What do you want me to do?
N.M.: Get me out.
MUNAO: Then what?
N.M.: The bedroom.
MUNAO: If you want to stop her, we’ll have to stop her, [N.M.].
N.M.: Do something.
MUNAO: I told you, there’s one thing we can do.
N.M.: No.
MUNAO: If you want me to do that, then we can do that.
N.M.: Do something then.
MUNAO: What?
N.M.: Something.

N.M.’s testimony at his videotaped deposition corroborated Walsh’s testimony. N.M. testified that Munao asked N.M. if he wanted him to come over and stab his mother with a knife. N.M. told his father no. N.M. said Munao asked him twice to go in the kitchen, get a knife and stab his mom. On November 19, 2003, Walsh went to the police about Munao’s statements to N.M.

Munao testified on his own behalf. He testified that when N.M. called him on the days in question, N.M. was “screaming bloody murder.” Munao was frightened that Walsh might try to harm N.M., so he told his son to go into the kitchen and get a knife. He said he did not intend for N.M. to actually get a knife and stab Walsh, or harm her. However, during a taped conversation between Munao and his new girlfriend that occurred while Munao was in jail, he remarked, “I was telling my son that repeatedly calls me four or five times a week screaming that his mom’s beating him to death and told him to go in the kitchen and get a knife and kill her, that’s what I told him to do because he was screaming his head off....” Further, Munao’s father testified that Munao told him that he told N.M. to get a knife and stab Walsh.

At trial, the state called Dr. Sheldon Rifkin, a clinical and forensic psychologist originally contacted by Walsh to assist with N.M. Dr. Rifkin diagnosed N.M. with Oppositional Defiant Disorder (ODD), a behavior disorder that displays defiance, disobedience and sometimes, swearing and physical aggression. Dr. Rifkin opined that Munao’s direction to N.M. to get a knife and kill Walsh was “completely inappropriate” and “extremely damaging” to a child with N.M.’s problems.

Dr. Gregory Landrum was retained by the state to evaluate N.M. and testify as an expert witness. Dr. Landrum diagnosed N.M. with ODD. He agreed that telling a child in N.M.’s condition to go into the kitchen, grab a knife and kill his mother, was reasonably likely to result in mental injury to the child. Further, Dr. Land-rum agreed that Munao’s statements could reasonably be expected to be the cause of substantial impairment in the ability of a child to function within the normal range of performance and behavior.

The jury found Munao guilty as charged of child abuse and solicitation to commit aggravated battery.

Munao argues first that his child abuse conviction must be vacated because oral statements alone cannot support a conviction for child abuse under section 827.03(1)(b), Florida Statutes. We agree.

Section 827.03(1)(b) defines “child abuse” as “[a]n intentional act that could reasonably be expected to result in physical or mental injury to a child.” § 827.03(1)(b), Fla. Stat. (2003). Munao relies on State v. DuFresne, 782 So.2d 888 (Fla. 4th DCA), app’d, 826 So.2d 272 (Fla.2002). In DuFresne, this court addressed the constitutionality of section 827.03(1)(b), Florida Statutes. Id. at 890. The trial court in DuFresne held the statute unconstitutional on overbreadth and vagueness grounds. Id. The defendant argued that the statute was unconstitutionally over-broad because it applied to speech protected by the First Amendment and was unconstitutionally vague because “mental injury” was not defined. Id.

This court noted that section 827.03(1)(b) was being used to prosecute conduct protected by the First Amendment because some of the counts in the case were based solely on oral statements. Id. However, this court did not find the statute facially invalid. Id. Rather, this court upheld the statute against an over-breadth challenge by narrowly construing it as “not applicable to speech,” recognizing that:

The state’s interest in protecting children from physical abuse, which is the primary purpose behind the statute involved in this ease, is compelling. Any constitutionally protected conduct which could be prosecuted under this statute is insubstantial, compared to the other types of conduct to which the statute is directed.

Id. at 891.

On the vagueness claim, this court found that the absence of a definition for “mental injury” in section 827.03 could be cured by a definition in another statute. Id. at 894. This court certified the vagueness question to the Supreme Court of Florida, as a question of great public importance. Id. The Supreme Court of Florida approved the decision in DuFresne, but addressed only the vagueness argument. DuFresne v. State, 826 So.2d 272 (Fla.2002). The supreme court agreed that the vagueness issue could be cured by looking to other statutes for a definition of “mental injury.” Id. at 276-79.

The state acknowledges DuFresne’s holding as applicable to this case because Munao was convicted of child abuse based on his oral statements to his son. However, the state suggests that the supreme court’s opinion in DuFresne on the vagueness issue compels us to reevaluate its overbreadth holding to exclude only protected speech from the statute’s reach. There is no indication in the supreme court’s opinion that suggests or mandates a reevaluation of DuFresne’s overbreadth holding. In fact, the supreme court expressly recognized the overbreadth holding and declined to address it. DuFresne, 826 So.2d at 274. The supreme court had jurisdiction to review any other error properly raised in the district court, but chose not to do so. See Weiand v. State, 732 So.2d 1044, 1057 (Fla.1999) (citing Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 912 (Fla.1995)) (recognizing that when the Supreme Court of Florida has jurisdiction to answer a certified question, it also has jurisdiction to review other alleged errors raised in the appellate court). Accordingly, we decline to reconsider DuFresne’s overbreadth holding.

We acknowledge that Munao’s statements, encouraging his six-year old son to get a knife and stab his mother, are deeply troublesome and offensive. However, it is not this court’s role to rewrite the statute by interpreting it as the state suggests. Although section 827.03(1)(b) has withstood overbreadth and vagueness challenges, the problematic circumstances in this case invite the legislature to reconstruct the statutory language in a way that balances the strong interest in protecting children with the fundamental preservation of individual constitutional freedoms.

Munao’s statements to N.M. are unprotected speech, as they advocated the use of force and that advocacy was “directed to inciting or producing imminent lawless action and [was] likely to incite or produce such action.” See Brandenburg v. Ohio, 395 U.S. 444, 447-48, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (citing Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); Yates v. United States, 354 U.S. 298, 320-24, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)). Nevertheless, as presently constructed, section 827.03(l)(b) cannot be applied to speech of any kind. This court’s narrowing construction of the statute in DuFresne was necessary to avoid overbreadth because the statute does not limit its application to any recognized exception to the First Amendment. “When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad.” DuFresne, 782 So.2d at 890.

Section 827.03(1)(b) prohibits “[a]n intentional act ... ” which is seemingly an attempt to outlaw the act that inflicts the harm, not the actual harm itself. However, the statute contains no parameters or guidelines as to what constitutes an act under the statute. Therefore, in reference to speech which constitutes an intentional act or conduct, any statements by a parent or teacher directed towards a child which could cause mental injury would be subject to prosecution as child abuse. The only clarification offered by the legislature is a definition of the term “mental injury” in another statute, specifically describing the result in a child that is necessary to invoke the statute. Thus, it appears that the child abuse statute actually outlaws a result derived from any act, making the statute applicable to a wide range of acts that cause a “physical or mental injury upon a child.” § 827.03(1)(b), Fla. Stat. (2003). If the legislature specifically defined the applicable act or conduct, then the statute could be interpreted as targeting specific conduct, not any conduct which causes the defined result. Thus, the conduct itself would be unlawful, whether achieved by spoken words or physical actions.

We reverse and remand and direct the trial court to enter a judgment of acquittal for the child abuse charge. Munao’s other issues on appeal concerning prejudicial evidence were not preserved and do not represent fundamental error. Accordingly, we affirm Munao’s conviction for solicitation to commit aggravated battery.

Affirmed in Part, Reversed in Part, and Remanded with Directions.

GUNTHER and MAY, JJ., concur.


text:
    George Regan JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-5366.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., and M. Gene Stephens, Assistant Public Defenders, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Pursuant to appellant’s motion for rehearing, we withdraw the opinion issued in this cause on July 20, 2006, and substitute the following in its place.

George Regan Jones appeals his convictions for various offenses of possession of and trafficking in drugs, entered following his nolo contendere pleas, conditioned on his right to appeal the denial of his motion to suppress the search of the house from which the drugs were obtained. For the reasons following, we dismiss the appeal and remand the case with directions.

Without addressing the merits of the motion, the lower court decided only that appellant did not have standing to contest the search on the ground that he was not a resident of the house searched. Because it appeared to this court that the trial court’s determination of standing was not dispositive of the case, meaning that “regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case,” Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986), we relinquished jurisdiction to the trial court for a decision on whether the order to be reviewed was dispositive. On remand, the court decided only that a ruling on the motion to suppress would be dispositive, not that its specific ruling on standing was dispositive of all issues, as the parties themselves agreed that the ruling would have no such effect.

In that it clearly appears from the record that the court’s ruling on standing would not preclude the trial of the case, we are required to DISMISS this appeal and REMAND the case to the trial court with directions to conduct an evidentiary hearing and rule on the substantive merits of the motion to suppress. Pursuant to the terms of the negotiated plea agreement, if the trial court denies the motion to suppress on the merits, appellant may appeal the ruling.

ERVIN, DAVIS, and LEWIS, JJ., concur.

      . The court should not have limited its determination solely to the question of standing, but should have resolved as well the merits of the motion to suppress. See Dean v. State, 478 So.2d 38 (Fla.1985); Andrews v. State, 536 So.2d 1108 (Fla. 4th DCA 1988), review denied, 544 So.2d 200 (Fla.1989); Sparkman v. State, 482 So.2d 421 (Fla. 5th DCA 1985).


author: STEVENSON, C.J.

text:
    BROWARD COUNTY, Appellant, v. ELLER DRIVE LIMITED PARTNERSHIP, a Florida Limited Partnership, Appellee.
    No. 4D04-3895.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Rehearing Denied Nov. 3, 2006.

      Andrew J. Meyers, James D. Rowlee and Paul S. Figg of the Broward County Attorney’s Office, Fort Lauderdale, for appellant.
    Clifford M. Stein, Miami Beach, for ap-pellee.
   STEVENSON, C.J.

This appeal stems from the 1995 lawsuit between Broward County and its property appraiser, wherein Broward County sought a declaratory judgment that county-owned property is immune from taxation. During the litigation, Eller Drive, one of Broward County’s lessees, intervened and requested a declaration that (1) Broward County is immune from taxation and (2) neither Broward County nor Eller Drive is liable for taxes assessed on Bro-ward County’s properties. Without determining what property Broward County owned, the trial court held that county-owned property is immune from taxation. On appeal, this court affirmed the ruling that county-owned property, leased for non-governmental purposes, is immune from ad valorem taxation. See Markham v. Broward County, 825 So.2d 472 (Fla. 4th DCA 2002).

In light of this court’s decision, Eller Drive moved the trial court to declare the prior assessments void and to refund the ad valorem taxes it previously paid. The trial court granted Eller Drive’s motion, ruling that the building located on the leased premises is owned by Broward County and therefore immune from ad valorem taxation. Broward County now challenges this post-judgment order. We reverse as an examination of the lease and relevant case law compels the conclusion that Eller Drive owns the building.

The parties agree the standard of review is de novo since the trial court determined, based on the lease’s construction and as a matter of law, that Broward County owns the building. See Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003); Lawyers Title Ins. Co. v. Novastar Mortgage, Inc., 862 So.2d 793, 797 (Fla. 4th DCA 2003), review denied, 880 So.2d 1212 (Fla.2004). We also acknowledge the basic premises that taxing statutes are to be construed liberally in favor of the taxpayer and that all property is subject to taxation unless expressly exempt. See Williams v. Jones, 326 So.2d 425, 435 (Fla.1975); State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958).

Chapter 196 of the Florida Statutes, entitled “Exemptions,” provides that personal property, buildings, or other real property improvements located on government property, but owned by a lessee of that government property, are not exempt from ad valorem taxation. See 196.199(2)(b), Fla. Stat. Several cases have acknowledged the State’s authority to tax improvements upon real property separate from the land itself. See Marathon Air Servs., Inc. v. Higgs, 575 So.2d 1340 (Fla. 3d DCA 1991) (finding that a building constructed on county-owned land was subject to ad valorem taxation since the lease expressly provided that title to fixed improvements would remain in the lessee during the term of the lease); Parker v. Hertz Corp., 544 So.2d 249 (Fla. 2d DCA 1989) (finding that a building constructed on county-owned land was owned by the lessee and was subject to ad valorem taxation where the lease provided that title to the improvements vested in the lessor upon the lease’s termination); Bell v. Bryan, 505 So.2d 690 (Fla. 1st DCA 1987) (finding that improvements constructed on county-owned land belonged to the county and were not subject to ad valorem taxation where lease documents provided that title to any building erected on the demised premises by lessee would immediately vest in the county). The lease in the instant case does not expressly state which party has ownership of the building during the term of the lease. Therefore, the question here is whether Eller Drive, by virtue of the lease’s provisions, is “endowed with sufficient indicia of ownership” of the building to justify the imposition of an ad valorem tax upon the improvements. Parker, 544 So.2d at 250. We conclude the answer is yes.

In 1979, Port Everglades Authority, the lessor and Broward County’s predecessor-in-interest, entered into a fifty-year lease with Port Everglades Executive Center, the lessee and Eller Drive’s predecessor-in-interest. The “Demise” was described therein as “vacant property located at Port Everglades,” but the lease acknowledged that the lessee would soon construct a building on the premises. The lease required Port Everglades Executive Center to construct a six-story office building that was approximately 95,000 square feet. Paragraph 2 of the lease specified that the building could only include “club rooms, commercial office space, exhibition areas, parking, and dining facilities.” No construction could be undertaken until Port Everglades Executive Center submitted detailed plans and obtained approval from Port Everglades Authority. Additionally, the lessee is required “to endeavor to obtain tenants whose business shall be supportive of and contributes to the development of Port Everglades as an international business and maritime center” and those tenants “shall be given preference for leases in the demised premises over other prospective tenants.” Nonetheless, the lessee can lease or sublease office space or other facilities without obtaining the lessor’s permission. The lease further provides that “[u]pon termination of this Lease, the improvements located on the Demised Land shall be and become the property of Lessor.”

Although the lessor is given a degree of control over the building, we see nothing in the lease which would divest Eller Drive, during the term of the lease, of the ownership interest that any entity would ordinarily possess over a building which it constructed with its own funds and possesses. “In the field of taxation, administrators of the laws and the courts are concerned with substance and realities, and formal written documents are not rigidly binding.” Helvering v. F. & R. Lazarus & Co., 308 U.S. 252, 255, 60 S.Ct. 209, 84 L.Ed. 226 (1939). In short, the lease provides Eller Drive with sufficient dominion over the building to conclude that Eller Drive owns the structure. For example, although Eller Drive is obligated to “endeavor to obtain tenants whose business shall be supportive of and contributes to the development of Port Everglades as an international business and maritime center,” Eller Drive is not required to refuse other potential tenants in favor of the preferred tenants. Nor is Eller Drive required to obtain Broward County’s permission before leasing “office space or other facilities in the improvements.” In our view, the conclusion that Eller Drive owns the building during the term of the lease is buttressed by the provision specifically providing that at the end of the term of the lease, the improvements located on the demised land “shall be and become” the property of Broward County.

Of significance to the trial court was the lease’s provision that abates rent if any portion of the “Real Estate or the improvements or Buildings” is taken by eminent domain:

If at any time during the term of this Lease the Demised Real Estate or the improvements or Buildings thereon, or any portion thereof, be taken or appropriated or condemned by reason of eminent domain, there shall be such division of the proceeds and awards and such abatement of rent as shall be just and equitable under the circumstances.... In general, it is the intent of this paragraph that upon condemnation the parties hereto shall share in the awards to the extent that their interests respectively are depreciated, damaged or destroyed by the exercise of the right of eminent domain.

The trial court reasoned that “if the County has no ownership interest in the building during the term of the lease, there would be no abatement of the rent if the building, or a portion thereof, was taken by eminent domain.” We believe, regardless of which entity owned the building, it could be commercially reasonable for the parties to agree that rent would be abated if the building was taken by eminent domain.

In reaching our decision, we are persuaded by the Second District’s opinion in Parker. There, Hertz Corporation entered into a lease with the Hillsborough County Aviation Authority whereby Hertz leased land at the Tampa Airport for the purpose of operating a car rental business. See Parker, 544 So.2d at 250. The terms of the lease required Hertz to erect improvements on the land. See id. Subsequently, the property appraiser determined the improvements were subject to ad valorem taxation. See id. Although the lease provided that title to the property would reside with Hertz during the term of the lease, Hertz successfully argued before the trial court that the buildings were owned by the Hillsborough County Aviation Authority and were exempt from ad valorem taxation. See id.

On appeal, the Second District looked beyond the mere declaration that Hertz would maintain title to the property during the term of the lease, and concluded that Hertz was “endowed with sufficient indicia of ownership justifying the imposition of an ad valorem tax upon the improvements.” 544 So.2d at 250. The court in Parker stated:

Hertz asserts that its lack of unfettered use and enjoyment and inability to alienate the premises forecloses ownership. Although these elements are frequently characteristic of ownership, their absence alone, in the presence of other factors, does not demand a finding, as in this instance, that the entity in possession of the property is not the owner. See Mikos v. King’s Gate Club, Inc., 426 So.2d 74 (Fla. 2d DCA 1983) (dominion over property is equivalent to ownership). The Ground Lease convinces us that Hertz possesses and exercises sufficient dominion over the improvements warranting the conclusion that it is the owner subject to ad valorem taxation.

Id. at 251.

Although the lease in the instant case and that in Parker are not identical, they have significant similarities. The most notable difference is the fact that the Parker lease specifically provided that Hertz would have title to the building during the term of the lease. Yet, the Second District gave this declaration little significance and, instead, looked at the “substance and realities” of the agreement between the parties. The similarities between the leases mandate the same outcome. Both Hertz and Eller Drive leased the land and constructed the buildings for commercial purposes. With the exception of repairs, partitions, and alterations, Eller Drive could not begin construction without obtaining Broward County’s approval. Eller Drive also agreed to be financially responsible for the improvements constructed on the land. Similarly, the Aviation Authority reserved the right to regulate Hertz’s improvements, and Hertz agreed to be financially responsible for the construction. See id. Both Eller Drive and Hertz are also required to be financially responsible for procuring and maintaining insurance and for paying any taxes assessed upon the property. See id. Both leases also specify that at the end of the lease, the lessor is given title to the improvements without paying the lessee compensation.

Eller Drive asserts the differences between the leases establish that Broward County owns the building. For instance, if Hertz’s lease terminated early because Hertz ceased its business at the airport or the Aviation Authority needed the land, the Aviation Authority was required to purchase the improvements from Hertz. See id. at 251. In contrast, Broward County is not required to compensate Eller Drive if its lease is terminated early. The Second District supposed that not paying Hertz for the improvements at the lease’s conclusion “might arguably suggest that the Authority owned the improvements from the outset of the Ground Lease,” but concluded:

It is manifest that Hertz’s proprietary use of the improvements for its commercial objectives, when coupled with the benefit of recapturing some amount of its capital investment through depreciation, was perceived by it from the beginning as ample compensation for subsequently parting with title.

Id. at 252. The court noted that a “more potent indicator” of the Aviation Authority’s ownership of the building would have been Hertz’s payment of rent during the term of the lease — a requirement which was “noticeably absent.” Id. Likewise, in the instant case, a 1993 assignment specifically refers to the lease as a “Ground Lease” and rent is calculated based on the square footage of the land as outlined in the mete and bounds description in the original lease and the subsequent amendments.

Finally, we are not persuaded by Eller Drive’s argument that a double taxation will occur if Eller Drive is required to pay ad valorem taxes for the building and a tax on the lease. Directly on point is Capital City Country Club, Inc. v. Tucker, 613 So.2d 448 (Fla.1993). There, Capital City Country Club leased land owned by the City of Tallahassee. See id. at 450. The club contended that requiring it to pay real estate taxes on the land and an intangible tax on the lease would result in double taxation. See id. When rejecting that argument, the Florida Supreme Court stated “[t]he intangible tax is being imposed on the rights afforded to the club under the lease,” and “[t]he real estate taxes, on the other hand, are being imposed on the land itself.” Id. at 452. Since there were two separate taxpayers and two different interests being taxed, the Court held that the taxes imposed did not violate the prohibition against double taxation. See id. In light of the foregoing, the prohibition against double taxation is not violated by the imposition of an ad valorem tax on real property and an intangible tax on a lease.

We have considered the other arguments raised on appeal, but are not persuaded thereby. We specifically reject Eller Drive’s contention that the doctrine of res judicata bars Broward County from challenging the trial court’s decision. “For res judicata to apply, there must be four identities: (1) identity of thing sued for, (2) identity of cause of action, (3) identity of persons and parties to the action, and (4) identity of quality or capacity of persons for or against whom the claim is made.” Burns v. DaimlerChrysler Corp., 914 So.2d 451, 453 (Fla. 4th DCA 2005). The record shows that whether Eller Drive owned the building situated on Broward County’s land was not an issue in the earlier lawsuit. We therefore reverse the trial court’s order directing the Broward County Tax Collector to refund ad valorem taxes and declaring void previous assessments.

Reversed.

WARNER and HAZOURI, JJ„ concur.

      . A 1990 amendment to the lease included additional real property and states "[t]he [leased] Premises consists of 221,558.11 square feet” and "Lessee shall pay to Lessor as Basic Rent, subject to periodic adjustments ... the sum of sixty-six cents ($.66) per square foot of the real property located in the Premises.”

      . A "ground lease” has been defined as "[a] lease of vacant land, or land exclusive of any buildings on it, or unimproved real property.” Black's Law Dictionary 633 (5th ed.1979).


text:
    Clyde JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2041.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rehearing Denied Oct. 13, 2006.
    Clyde Johnson, Okeechobee, pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Fla. R.Crim. P. 3.701(d)(3)(B) (“The guidelines scoresheet that recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.”).

AFFIRMED.

THOMPSON, ORFINGER and EVANDER, JJ., concur.


author: BROWNING, J.

text:
    Drew C. HARTLEY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondent.
    No. 1D05-4118.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2006.
    Drew C. Hartley, pro se, Petitioner.
    Charlie Crist, Attorney General, and Wendy Benner-Leon, Assistant Attorney General, Tallahassee, for Respondent.
   BROWNING, J.

The petition for writ of certiorari is denied on the merits. The petitioner has not met his extraordinary burden to show that the circuit court — acting in its appellate capacity in reviewing the petitioner’s challenge of an unfavorable institutional ruling after an inmate disciplinary hearing — violated a clearly established principle of law resulting in a gross miscarriage of justice. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998); Combs v. State, 436 So.2d 93, 95-96 (Fla.1983); Doss v. Fla. Dep’t of Corrs., 730 So.2d 316 (Fla. 4th DCA 1999).

PETITION DENIED.

BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Willie HUNTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3970.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2006.
    Rehearing Denied Oct. 19, 2006.

      Willie Hunter, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

ERVIN, POLSTON, and HAWKES, JJ., concur.


author: POLEN, J.

text:
    Charlotte TAYLOR, Appellant, v. GREENPOINT MORTGAGE CORP., Michael M. Phillips, and City of Lake Worth, Appellees.
    No. 4D05-3512.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Rehearing Denied Nov. 3, 2006.
    Charlotte Taylor, Boynton Beach, pro se.
    Larry A. Earns, Lake Worth, for appel-lee City of Lake Worth.
   POLEN, J.

Appellant, Charlotte Taylor, appeals three separate non-final orders from the trial court below, in favor of Appellee, the City of Lake Worth (“City”). We dismiss for lack of jurisdiction, due to Taylor’s failure to timely file an appeal of the final order below.

This case has a somewhat complicated factual scenario, as it involves a judgment on the property of a third individual in this case, Michael M. Phillips, and the interests of Appellant, Greenpoint Mortgage Corp. (“Greenpoint”) and the City. In 1999, Taylor filed a complaint to quiet title against Greenpoint, alleging that she had obtained a lien upon the property of Phillips. Taylor executed the lien against the property and obtained a sheriffs deed to the property. Greenpoint also claimed a lien against the property, adverse to Taylor’s. The trial court held that Greenpoint had a valid claim on the sums due on its note and mortgage, and determined that Green-point’s lien was superior to any of Taylor’s claims. The property was sold in a foreclosure sale, and the trial court ordered the clerk to issue a certificate of title to the purchaser of the property, to disburse funds in the amount due under the mortgage to Greenpoint, and to disburse any remaining funds to Taylor.

At this point, the City intervened, and appealed to this court the trial court’s order to the clerk to disburse the surplus funds in the registry to Taylor. The City had filed two code enforcement orders against Phillips in 1999, and held liens against the property. The City also presented this argument to the trial court and asked that the order disbursing funds to Taylor be set aside, pursuant to Florida Rule of Civil Procedure 1.540(b). On July 18, 2005, the trial court entered an order revoking and rescinding its previous order, due to the fact that Taylor’s address was not listed on the final judgment against Phillips, nor did she record an affidavit containing her address when she recorded the judgment, as required by section 55.10(1), Florida Statutes.

On July 25, Taylor filed a motion to stay the disbursement of funds until the trial court could determine if the City’s liens were void or invalid. This motion was eventually denied on September 1, 2005. On August 11, Taylor filed a motion to vacate the order disbursing funds to the City, alleging that the trial court lacked jurisdiction to enter such an order, as the City had appealed the trial court’s original order disbursing funds to Taylor to this court. On August 18, the trial court denied this motion to vacate, based on the City’s representation that the appeal had been dismissed. On August 23, Taylor asked that this denial be vacated, as the appeal was still pending in this court, contrary to the City’s representation. The trial court denied the motion.

We find that Taylor’s motions to stay and to vacate the trial court order entered pursuant to Florida Rule of Civil Procedure 1.540(b) were untimely filed, resulting in this court’s lack of jurisdiction. Rule 1.540(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud ... misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order or proceeding was entered or taken.

Fla. R. Civ. P. 1.540. Orders entered on motions filed under Rule 1.540 are reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). Rule 9.130(b) states:

The jurisdiction to seek review of orders described in subdivisions (a)(3)-(a)(6) shall be invoked by filing 2 copies of a notice, accompanied by the filing fees required by law, with the clerk of the lower tribunal within 30 days of the order to be reviewed.

(Emphasis added.) Jurisdictional time limits, such as the time for filing an appeal, cannot be extended for any reason. Epicor Software Corp. v. Coopers & Clarke, Inc., 928 So.2d 1249 (Fla. 3d DCA 2006).

In this case, Taylor did not file a direct appeal of the July 18 order until September 2, although she did file a motion to stay the disbursement of funds, and a motion to vacate the order. We have previously addressed this situation in Intercoastal Marina Towers, Inc. v. Suburban Bank, 506 So.2d 1177 (Fla. 4th DCA 1987). In that case, the defendant made a motion to set aside a judgment pursuant to Florida Rule of Civil Procedure 1.540. Id. at 1178. The trial court denied the motion on June 27, and the defendant filed a motion for rehearing and a renewed motion to set aside the final judgment. Id. These motions were denied, and the defendant filed an appeal in this court on August 1. Id. This court stated:

We have carefully examined the record presented and conclude that we are without jurisdiction to review the order of June 27th because the notice of appeal was not timely filed. The notice would have been timely filed had the order of June 27th been a final order the rendition of which would be suspended by a timely notice of appeal. However, although appellants filed a timely motion for rehearing and the court actually considered it, there is no provision in the appellate rules for filing a petition to rehear an order entered upon a motion for relief under Florida Rule of Civil Procedure 1.540(b) and, therefore, rendition of said order is not affected by a motion for rehearing. That, of course, makes the notice of appeal filed August 1, 1985, untimely and precludes jurisdiction in this court.
Appellants contend that their renewed motion to vacate the judgment was proper and obviates the jurisdictional problem and the court erred in denying the relief sought therein. We reject that argument. Appellants sought relief pursuant to rule 1.540(b) and set forth various grounds therefor. If dissatisfied with the court’s ruling thereon their remedy was by appeal, not by filing successive motions to vacate containing the same general grounds or even new ones, which could have been raised in the first motion.

Id. at 1178-79 (internal citations omitted).

We find that Taylor’s appeal of the trial court’s order was untimely, and dismiss the appeal for lack of jurisdiction.

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

      . Michael M. Phillips, against whom Taylor received a judgment in a related case, filed a pro se cross-appeal of that judgment in this case. However, due to our lack of jurisdiction over the instant appeal, we find that we are also without jurisdiction to hear Phillips's cross-appeal.


text:
    Eliza THOMAS, Appellant, v. Pamela PATTON, Robert S. Schindler, Sr., Lindy Thackston, and Multimedia Holdings Corporation and Gannett River States Publishing Corporation d/b/a First Coast News, Appellees.
    No. 1D05-5501.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.
    Rehearing Denied Oct. 12, 2006.

      Thomas C. Powell and Roy E. Dezern, Jacksonville, for Appellant.
    George D. Gabel, Jr., Charles D. Tobin, and Jennifer A. Mansfield of Holland & Knight LLP, Jacksonville, for Appellees.
   PER CURIAM.

We affirm the final summary judgment entered by the trial court in this case. Appellant has raised seven points on appeal, none of which has merit. We write an opinion only because we have decided to grant attorney’s fees to appellees pursuant to section 57.105(1)(b), Florida Statutes (2005). After oral argument in this case, we issued the following order to show cause:

ORDER TO SHOW CAUSE
Because the claims presented in this appeal appear unsupported by any application of the law to the facts of this case, this court must consider whether attorney’s fees should be awarded against appellant’s attorneys pursuant to section 57.105(1)(b), Florida Statutes (2005). See Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla.2005). That statute provides:
57.105 Attorney’s fee; sanctions for raising unsupported claims or defenses; service of motions; damages for delay of litigation.—
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

In taking this action, the court has considered many factors present in this case.

With regard to the presentation of the case, the briefs filed by appellant contain many inappropriate phrases and references:

• “Poison Pen Letter” and “Poison Pen Campaign.” Initial Brief, at 2, 3, 18, 28; Reply Brief, at 5.
• “Twilight Zone Doctors.” Initial Brief, at 4, 11, 16, 30, 40; Reply Brief, at 2,10,14.
• “Judicial murder.” Initial Brief, at 11, 29; Reply Brief, at 8,10.
• “Tab 18 Plants.” Initial Brief, at 5, 7, 20, 22, 24, 27, 28, 29, 30, 33, 34, 35, 44; Reply Brief, at 11,12.
• Quotes one of the trial court’s findings and then states, “Baloney.” Initial Brief, at 15.
• “Appellees’ citation of miscellaneous Internet screwballs (‘Tab 18 Plants’).” Initial Brief, at 20.
• “Tab 19 Stories.” Initial Brief, at 20, 32; Reply Brief, at 11.
• “Tab 20 Hits.” Initial Brief, at 21, 33, 34, 35; Reply Brief, at 11.
• “There is no allegation that the Internet stories were not planted by the defendants in this suit (in fact, the evidence shows they were), that the stories deal with any public concern, or that anyone other than Appellees has ever read them.” Initial Brief, at 21-22.
• “The most important of the Tab 18 Plants is a fraud on the Trial Court as is explained below.” Initial Brief, at 22.
• “In short, there is no controversy over a public concern here, only a bunch of Internet freaks parroting Patton’s lies.” Initial Brief, at 30.
• “Appellees accused Appellant of attempted murder and claimed they had medical evidence to back it up. They lied.” Initial Brief, at 42.
• “The Final Summary Judgment, however, disparages honest journalism by legitimizing an Internet lynch mob and elevating porno queens to the level of supreme court judges.” Initial Brief, at 45.
• “Appellees, as is their wont, introduce new facts into the Answer Brief that are nowhere in evidence or stated in the Final Summary Judgment.” Reply Brief, at 1.
• “Appellees have substituted their own version of Appellee Thackston’s Answers to Interrogatories, concealing references to time and misstating the response.” Reply Brief, at 2.
• Referring to statements by appel-lees and the trial court as “fatuous.” Reply Brief, at 3.
• Referring to the temporary guardianship hearing as “a ‘Star Chamber’ proceeding.” Reply Brief, at 7.
• “Appellees will go to any length to perpetuate this myth, including defrauding this Court. They state, for example, that ‘Patton’s Petition for Appointment of Emergency Temporary Guardian alleged that Scott Thomas was in imminent danger and that Appellant was being investigated by the State Attorney’s Office for possible involvement in Scott Thomas’ injury.’ (AB 2). This is a base lie. This Court will search in vain for anything remotely resembling such a statement in Patton’s petition. (R. 230-232). Please read it. Appellees made this up.” Reply Brief, at 12.
• “This case is not about a difference of opinion; it is about lies fabricated and spread by the Appellees for profit.” Reply Brief, at 12.
• “Appellees say ‘Patton [who apparently is Appellees’ Twilight Zone Doctor] argued to the guardianship court that Scott Thomas’ severe brain injury was not explained by Appellant’s explanation of his injury.’ (AB 20). They made this up, too.” Reply Brief, at 14.
Thus, in addition to making offensive remarks about the trial court, appellant accuses opposing counsel and appellees of fabricating evidence, lying, and defrauding the court.* Appellant relies on such accusatory language presumably because no law supports appellant’s arguments.
Turning to the substance of the briefs, appellant’s first “point” on appeal is frivolous despite appellant’s contention that “[t]his is not a frivolous issue”: “Whether, as a matter of law, different dates on the calendar represent different days.” Initial Brief, at ii, 10. In other points on appeal, appellant raises no serious challenge to the undisputed material facts found by the trial court. On the legal points raised, appellant’s arguments completely lack merit. Indeed, appellant concedes that Pamela Patton, a defendant in the trial court, made the statements at issue, as reported by the appellees, First Coast News and Lindy Thackston. As a matter of law, as found by the trial court, appellees’ publication of those statements is not capable of defamatory meaning.
* We note that appellant’s attorneys themselves invented certain of the descriptive terms quoted above, such as “Twilight Zone Doctors,” "Plants,” and "Stories,” presumably in an attempt to impugn the integrity of appellees and their counsel.
In the oral argument before this court, appellant persisted in using inappropriate phrases and presenting merit-dess legal arguments. When questioned by the panel about language used in his briefs, appellant had no explanation and made no apologies, stating only that “the language in my first draft is a lot worse.”
Based on the foregoing, we direct attorneys Thomas C. Powell and Roy E. Dezern to SHOW CAUSE within twenty days why attorney’s fees under section 57.105(1)(b) should not be awarded against them. Appellees may file a response within twenty days thereafter.

Appellant’s attorneys have now filed a response to the order to show cause, and appellees have filed a reply thereto. As appellees indicate in their reply, the response filed by appellant does not address the issue presented by the court. Instead, appellant merely reargues the merits of the case, insisting that the descriptions used in the briefs, and pointed out in the court’s order, are appropriate. Appellant’s attorneys apologize only for the use of one term — “baloney.” Appellant’s attorneys now dispute that appellant conceded Patton made the statements at issue, presumably in an attempt to argue the case was not frivolous. Appellant’s attorneys have offered no good reason why attorney’s fees should not be awarded in this case. Accordingly, we adopt the factual matters and analysis set forth in the Order to Show Cause and find that attorney’s fees are due under section 57.105(l)(b). The cause is remanded to the circuit court for assessment of those fees.

AFFIRMED and REMANDED.

KAHN, C.J., WEBSTER and HAWKES, JJ., concur.


author: EVANDER, J.

text:
    G. Kent FULLER, Appellant, v. DURA-STRESS UNDERGROUND, INC., et al., Appellees.
    No. 5D06-613.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Donald E. Christopher and Christine M. Ho, of Litchford & Christopher, Orlando, and Phillip S. Smith of McLin-Burnsed, P.A., Leesburg, for Appellant.
    Michael R. Riemenschneider and William H. Cantwell, II of O’Brien, Riemen-schneider, Wattwood & Cantwell, P.A., Melbourne, for Appellee.
   EVANDER, J.

Kent Fuller, the plaintiff below, appeals the trial court’s order granting the defendants’ motion to dismiss or, in the alternative, to transfer action to Brevard County. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(A).

Fuller initiated this action in Lake County. He subsequently filed a four-count amended complaint in Lake County against four individuals and a corporation. In his amended complaint, Fuller alleged he was a shareholder in defendant, Dura-Stress Underground, Inc. (Dura-Stress). He further alleged the four individual defendants were the other shareholders in Dura-Stress. According to Fuller, the individual defendants had wrongly accused him of breaching his fiduciary duty to Dura-Stress and had taken the position that Fuller was obligated to sell his shares back to Dura-Stress. Count I of the amended complaint sought injunctive relief against all the defendants. Count II was an action for production of corporate records against only Dura-Stress. Count III was an action for libel against the four individual defendants. Count TV was an action for declaratory relief against the four individual defendants. All four counts arose from a common nucleus of facts.

The trial court found that the venue provision set forth in the parties’ shareholders’ agreement required him to transfer Count IV to Brevard County. The trial court further found that to avoid piecemeal litigation and possible inconsistent results, the first three counts should also be transferred to Brevard County. We affirm.

At the hearing below, both sides relied on affidavits. No other evidence was presented. As to Count TV, our review is de novo because the trial court’s decision was based on a contractual interpretation. Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 290 (Fla. 3d DCA 2005). In Count IV, Fuller alleged that the individual defendants were contending they were entitled to exercise a forced buy out of Fuller’s shares because of Fuller’s alleged breach of fiduciary duty to Dura-Stress. Fuller sought a declaration from the court that he had not breached his fiduciary duty to Dura-Stress, and accordingly, was not obligated to sell his shares.

In support of their motion to dismiss, or in the alternative, to transfer action to Brevard County, defendants filed the affidavit of David Smith. Smith is one of the four individual defendants. In his affidavit, Smith avers that plaintiff and the four individual defendants all executed a shareholder’s agreement. A copy of the agreement was attached to Smith’s affidavit. The shareholders’ agreement provided for a forced buy-out of any shareholder who had breached his fiduciary duty to Dura-Stress. The agreement further provided the method by which the sales price would be calculated. The shareholders’ agreement also included the following venue provision:

This Agreement shall be governed and construed in accordance with the laws of the State of Florida, and venue for its enforcement shall be in Brevard County, Florida, (emphasis added)

In his two counteraffidavits, Fuller did not dispute the existence of the shareholders’ agreement. Nor did Fuller deny that he had signed the agreement. However, Fuller argues that the venue provision is not controlling because Count IV is an action for declaratory relief, not for enforcement of the shareholders’ agreement. We reject Fuller’s argument. A claim for declaratory relief does not itself constitute a cause of action for venue purposes. Instead, the court must examine the underlying relief sought. Symbol Mattress of Fla., Inc. v. Royal Sleep Products, Inc., 832 So.2d 233, 236 (Fla. 5th DCA 2002). In this case, Fuller is, for all practical purposes, seeking to enforce the agreement. In effect, Fuller is requesting the court declare that, pursuant to the terms of the agreement, the individual defendants have no right to require Fuller to sell his shares back to Dura-Stress. Accordingly, the venue provision is controlling. The trial court properly found that Count IV was required to be litigated in Brevard County. Greenstreet Management, Inc. v. Barker, 833 So.2d 183 (Fla. 5th DCA 2002).

Having properly determined that Count IV was to be heard in Brevard County, the trial court had the discretion to also transfer the first three counts to Brevard County. Prof'l Planning Serv., Inc. v. Sunshine Staff Leasing, Inc., 695 So.2d 883 (Fla. 5th DCA 1997). We find the trial court did not abuse its discretion in also transferring these counts.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.


author: THOMPSON, J.

text:
    Curtis D. LORENC, Petitioner, v. BOARD OF COUNTY COMMISSIONERS, etc., Respondent.
    No. 5D06-518.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Rehearing Denied Oct. 13, 2006.
    Warren R. Ross of Wotitzky, Wotitzky, Ross, Goldman, Sturges & Tuttle, P.A., Punta Gorda, for Petitioner.
    Terri Leigh Jones, Assistant County Attorney, Viera, for Respondent.
   THOMPSON, J.

This petition for writ of certiorari is denied because the petitioner has failed to establish that the lower court departed from the essential requirements of the law or denied him procedural due process. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Foti v. Citrus County, 860 So.2d 20 (Fla. 5th DCA 2003).

PALMER and LAWSON, JJ., concur.


text:
    Robert Lee DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1602.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.

      Robert L. Daniels, Mayo, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

Robert Lee Daniels, who was convicted of a 1997 armed robbery, appeals the denial of his latest rule 3.800(a) motion to correct illegal sentence. Once again, he attacks his designation as a habitual felony offender. After receiving Daniels’s response to this Court’s show cause order, we affirm. State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999). Daniels’s belief that he is right, and that the trial court and this Court are wrong, does not entitle him to continue to file motions on matters already adjudicated adversely against him.

We hold that Daniels is barred from further pro se filings in this Court on the basis that his pleadings have become an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Carter v. State, 931 So.2d 1045, 1045 (Fla. 4th DCA 2006) (“Appellant’s repeated filing of frivolous appeals is diminishing this court’s ability to consider legitimate claims.”); 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 taxpayers’ money); Glasco v. State, 914 So.2d 512 (Fla. 5th DCA 2005) (recognizing that frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants).

Accordingly, in order to conserve judicial resources, we prohibit Daniels from filing with this Court any further pro se pleadings concerning Eighteenth Judicial Circuit Court case number 97-3833-CFB. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Daniels. Any pleadings regarding this case will be summarily rejected by the Clerk, unless 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 action. See § 944.279(1), Fla. Stat. (2005); see, e.g., 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.

ORFINGER, TORPY, and GRIFFIN, JJ., concur.


text:
    Leroy HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2159.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 31, 2006.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Leroy Hudson, appeals a final order of judgment and sentence. After a jury trial, Hudson was found guilty of one count of sexual battery against a mentally defective victim, and one count of attempted sexual battery against a mentally defective victim. The victim was the twenty-six-year-old daughter of Cynthia Walker, with whom Hudson had a relationship. As one of his issues on appeal, Hudson argues that the trial court erred in denying his motion for judgment of acquittal, as the State did not present expert testimony that the victim was mentally incompetent. We find no merit in this argument, but write to address the question of what evidence will constitute competent and substantial evidence of a mental defect. We hold that there was competent, substantial evidence of such presented in this case, and affirm the trial court’s holding on all issues.

“Denial of a motion for judgment of acquittal is reviewed by the de novo standard.” Sapp v. State, 913 So.2d 1220, 1223 (Fla. 4th DCA 2005).

If there is competent substantial evidence to support the jury’s verdict, the trial court’s denial of the motion will not be disturbed on appeal. In reviewing the trial court’s denial of the motion for judgment of acquittal, the appellate court must follow the well settled principle that a defendant, in moving for a judgment of acquittal, admits all facts adduced in evidence, and the court draws every conclusion favorable to the state which is fairly and reasonably in-ferable from that evidence.

Id.‘Mentally defective’ means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct.” § 794.011(1)(b), Fla. Stat.

This court and other courts have examined what constitutes sufficient evidence of mental defectiveness. In Schimele v. State, 784 So.2d 591 (Fla. 4th DCA 2001), this court found that the State had presented sufficient evidence that the alleged victim was mentally deficient. The State presented the testimony of a psychologist, who determined that the victim was obviously mentally impaired. “He looked like a retarded man; his gait, his physical appearance and, above all, his voice, [immediately signaled that he was] a retarded person.” Id. at 592. Other evidence included the results of an I.Q. test and the psychologist’s testimony that “on the date of the offenses the victim was not able to give a knowing, voluntary, intelligent consent to having sexual relations with defendant.” Id. at 593; see also Bowman v. State, 760 So.2d 1053 (Fla. 4th DCA 2000) (evidence of low I.Q. score and testimony of psychologist constituted competent, substantial evidence supporting trial court’s denial of motion for judgment of acquittal).

In the instant case, the State presented testimony from three witnesses that the victim was mentally deficient. Detective Cahir, who investigated the case and interviewed the victim, believed the victim to be about seven to nine years old mentally. Jean Swaby, a nurse at the Sexual Assault Center who examined the victim, thought she was “childlike and delayed,” and documented that she appeared to be mentally challenged. Cynthia, the victim’s mother, operated a home for mentally deficient children, and had adopted the victim at the age of six months. The victim attended school at Wingate Oaks, a school for educable mentally deficient children. Cynthia and Hudson had discussions regarding the fact that the victim was mentally challenged. The victim also testified at trial, but had a hard time doing so, and could not remember the dates of the alleged incidents.

While the State did not present expert testimony or evidence of the results of an I.Q. test, we find that expert testimony is not an absolute necessity in proving mental deficiency. As long as there is competent and substantial evidence from which the jury may conclude the victim is mentally deficient, such that she or he is incapable of “consent,” the matter is a question to be resolved by the jury. After reviewing the facts of this case, we find the testimony presented below constitutes competent, substantial evidence sufficient to withstand Hudson’s motion for judgment of acquittal, and to allow the issue of mental deficiency to go to the jury. We affirm the trial court’s denial of Hudson’s motion for judgment of acquittal.

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


text:
    Charles E. SIMMONS, M.D., Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. 1D06-2963.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 17, 2006.
    Stephen T. Maher and Michael P. Gen-nett of Shutts & Bowen LLP, Miami, for Petitioner.
    Bill Roberts, Deputy General Counsel, and Garnett W. Chisenhall, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner fails to demonstrate a clear legal right of AHCA to perform a clear legal duty. See Turner v. Singletary, 623 So.2d 537 (Fla. 1st DCA 1993). Therefore, the petition for writ of mandamus is denied. Petitioner’s request for oral argument is denied as moot.

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


author: LAWSON, J.

text:
    STATE of Florida, Appellant, v. D.A., A Child, Appellee.
    No. 5D05-3658.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
   LAWSON, J.

The State appeals an order dismissing the delinquency petition charging D.A. with lewd and lascivious molestation. The trial judge dismissed the petition pursuant to the juvenile speedy trial rule, because the State amended the petition during the recapture period to correct an erroneous citation to section 800.04(5)(c)(2), Florida Statutes (which applies to a defendant 18 years of age or older). The amended petition correctly charged D.A. under section 800.04(5)(d), which applies to a defendant under the age of 18. We reluctantly affirm, finding that the trial judge correctly applied binding precedent. However, we believe that the controlling case law makes little sense, and forces a result that is both unjust and unjustified by the purpose of the speedy trial rule. Therefore, we certify two questions to the Florida Supreme Court, in hopes that our State’s highest court will revisit the case law which we must follow. We also certify conflict with a recent decision from the Second District Court of Appeal, which certified one of the same questions we now certify.

The precedent that dictated the trial court’s decision states that where the defendant has not waived the procedural “rights” created by Florida’s speedy trial rule, and the state files an amended information after expiration of the speedy trial period, upon proper motion the court must dismiss any new charge arising from the same criminal episode as the one charged in the original information. State v. Clifton, 905 So.2d 172, 178 (Fla. 5th DCA 2005); Pezzo v. State, 903 So.2d 960, 961 (Fla. 1st DCA 2005). This rule is simply an application of the rule created by our Supreme Court which prohibits the state from filing any charge based upon facts giving rise to the arrest after the 175th day (or, for the juvenile rule applicable here, the 90th day). State v. Williams, 791 So.2d 1088, 1091 (Fla.2001); see also, State v. Naveira, 873 So.2d 300, 305 (Fla.2004).

In this case, D.A. did not waive his rights under the speedy trial rule, and the speedy trial period had expired. The case was set for trial during the recapture period, when the State noticed the error and sought to amend the petition. This is the type of error that could normally be corrected by amendment to the charging document during the trial, because the correction would not have prejudiced D.A.’s ability to address the merits of the State’s case in any way. See State v. Anderson, 537 So.2d 1373, 1375 (Fla.1989) (holding that the state may substantively amend an information during trial, over the defendant’s objection, absent a showing of prejudice to the defendant’s substantial rights); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985) (allowing the state to amend its information at the close of the state’s case, to allege the defendant’s age, where there was no showing of prejudice). So, D.A. could have had exactly what the speedy trial rule was designed to assure: A fair and timely trial on the merits. Ironically, under our precedent, D.A. was allowed to avoid his fair and timely trial by summoning the very rule that is supposed to assure him a fair and timely trial. Although illogical, and contrary to the intent of the speedy trial rule, this is the result required by Williams—so long as the trial judge was correct in his determination that the amended information charged a different (and, therefore, “new”) crime. We conclude that he was.

Our analysis begins with Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA), rev. denied, 776 So.2d 277 (Fla.2000). In Toussaint, the state incorrectly charged a 52 year-old adult as a person under 18 years of age in an information alleging sexual battery against a child. When the state amended the information after the close of all evidence to correct the erroneous allegation regarding the defendant’s age (and the corresponding statutory citation), defendant objected on double jeopardy-grounds. The Fourth District concluded that there was no double jeopardy violation because the amended information, although citing to a different subsection of the sexual battery statute (and charging a different degree of felony with a different range of punishment), did not charge a new or different crime. In reaching this conclusion, the Fourth District relied upon its own precedent, which held that “the offender’s age is not an element of the crime of sexual battery,” but is merely used “in prescribing the means by which an offender should be punished.” Jesus v. State, 565 So.2d 1361, 1363 (Fla. 4th DCA 1990), disapproved by Glover v. State, 863 So.2d 236 (Fla.2003). The court reasoned that because “the age (and corresponding statute citation) was the only allegation changed in the amended information,” and age was not an element of the crime, “the elements were the same” in both informa-tions, and no new crime was charged. Toussaint, 755 So.2d at 172. Thereafter, a split developed among Florida’s district courts as to whether the age of the defendant was an element of the crime of sexual battery.

The Third and Fifth Districts held that the age of the defendant was an element of the offense of sexual battery. Baker v. State, 604 So.2d 1239 (Fla. 3d DCA 1992); Glover v. State, 815 So.2d 698 (Fla. 5th DCA 2002), aff'd, 863 So.2d 236 (Fla.2003). The Second District followed Jesus, and held that age was not an element. Winchester v. State, 639 So.2d 84 (Fla. 2d DCA 1994). As is already obvious from the preceding case citations, the Florida Supreme Court ultimately disapproved of the Fourth District’s analysis in Jesus and Toussaint, holding in Glover that the defendant’s age is an element of the charge of sexual battery. Glover, 863 So.2d at 238.

Prior to Glover, the Fourth District had also addressed the issue of whether age of the defendant is an element of the charge of lewd or lascivious molestation, the crime charged in this case. See Desbonnes v. State, 846 So.2d 565 (Fla. 4th DCA 2003). The Fourth District held that the age of the defendant was not an element of the crime. In so holding, the Court reasoned that because “the structure and language of the statute in Jesus is eompellingly analogous to section 800.04(5) governing lewd or lascivious molestation,” the reasoning and holding of Jesus should be applied. Id. at 566. Later in its opinion, the court correctly notes that the “structure and language of the statute before us [defining the crime of lewd or lascivious molestation] and the statute in Jesus [defining the crime of sexual battery], are virtually identical.” Id. However, when overturning Jesus, our Supreme Court did not expressly address Desbonnes. See Glover, 863 So.2d at 238.

Interestingly, the Second District recently elected to follow Desbonnes, holding that the age of the defendant is not an element of the charge of lewd or lascivious conduct. Insko v. State, 933 So.2d 679 (Fla. 2d DCA 2006). The court reasoned that because Glover dealt only with the crime of sexual battery, it did not apply. Id. While we agree with the Second District’s conclusion that under a “plain reading” of the statute, the age of the defendant is probably more properly viewed as a sentencing consideration, and not an element of the offense, we do not believe that Glover can be distinguished. The very reason that the Fourth District applied its analysis and holding from Jesus in Des-bonnes was that the two statutes are “virtually identical.” This being true, we believe that we are compelled by Glover to conclude that the age of the defendant is also an element of the crime of lewd or lascivious molestation. Therefore, we certify conflict with Insko.

This conclusion also requires that we affirm the trial court’s order of dismissal. Because the age of the defendant is an element of the offense of lewd or lascivious molestation, the amended petition clearly charged a new offense. In the amended information, D.A. was charged under a separate subsection of the statute, with an offense that contained a different element, to a different degree of felony, with a different potential range of punishment. Our precedent, therefore, requires dismissal of the charge because it was added more than 90 days after D.A.’s initial arrest. See Clifton, 905 So.2d at 178; Williams, 791 So.2d at 1091. Again, we would welcome a reversal.

Consequently, we certify the following as questions of great public importance:

1. IN LIGHT OF THE RULING IN GLOVER v. STATE, 863 So.2d 236 (Fla.2008), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE OFFENSE OF LEWD OR LASCIVIOUS OFFENSES UNDER SECTION 800.04, FLORIDA STATUTES?
2. IF SO, DOES WILLIAMS v. STATE, 791 So.2d 1088 (Fla.2001), REQUIRE DISMISSAL OF AN AMENDED DELINQUENCY PETITION, FILED AFTER EXPIRATION OF THE SPEEDY TRIAL PERIOD, WHICH CHANGED THE AGE OF THE OFFENDER?

AFFIRMED; CONFLICT CERTIFIED; QUESTIONS CERTIFIED.

THOMPSON and PALMER, JJ., concur.

      . Florida Rule of Juvenile Procedure 8.090(a). In relevant part, rule 8.090 is substantively indistinguishable from the speedy trial rule found in Florida Rule of Criminal Procedure 3.191. Therefore, the analysis applied to one rule is equally applicable to the other. P.S. v. State, 658 So.2d 92, 93 n. 2 (Fla.1995) (holding "criminal speedy trial-rule 3.191-and rule 8.090 form continuum within which all aspects of speedy trial lie in neat relationship and are to be read as in pari materia”) (citing J.B. v. Korda, 436 So.2d 1109, 1110 (Fla. 4th DCA 1983)); see also, S.D. v. State, 924 So.2d 963 (Fla. 4th DCA 2006).

      . Both the original petition and the amended petition correctly alleged D.A.’s date of birth as October 8, 1989 (making him 15 years old at the time of the alleged crime).

      . Justices Wells and Bell have concluded that this judicially-created rule unnecessarily constrains the statute of limitations enacted by our Legislature. Bulgin v. State, 912 So.2d 307, 313-14 (Fla.2005), (Bell, J., concurring in result only) (Wells, J., dissenting). That is certainly the case here.

      . During the hearing on D.A.’s motion for discharge, the trial court repeatedly asked defense counsel whether proceeding to trial on the amended petition would prejudice her client in any way. Counsel could not identify any prejudice. The last exchange on this point was as follows: The Court: “And so they've changed the elements, but does the change in elements in any way prejudice you — what you understood the case to be, the facts, the evidence that you were going to present?” Defense Counsel: “Your Honor— and I understand exactly what you’re asking, and I have nothing further to proffer at this time.” Defense counsel had proffered nothing prior to this exchange, other than the legal argument that case law mandated a discharge.


text:
    Paul E. HEMMY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2538.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 2006.
   STRINGER, Judge.

Paul E. Hemmy, Jr., appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Hemmy raises seven claims for relief in his motion. We affirm without comment the postconviction court’s summary denial on six of the claims, but we reverse and remand for further proceedings on the remaining claim.

In claim six, Hemmy alleges that his plea was involuntary because he was coerced by the trial judge into agreeing to it. Hemmy claims that when he rejected the State’s plea offer, the trial judge stated that there was no defense for the crimes he had been charged with and that if he represented Hemmy, he would throw him “against a wall.” Hemmy also claims that the trial judge stated that if he did not accept the State’s offer, he would be making a “horrible mistake.” After considering the offer overnight, Hemmy claims that he decided to accept the State’s offer based on the trial judge’s bias against him and his fear that he would not receive a fair trial. Hemmy claims that his counsel subsequently requested that his plea include the right to appeal the denial of his motion to suppress. However, Hemmy claims that the trial judge erroneously involved himself in the plea negotiations and refused to accept the plea if the negotiations included Hemmy’s right to appeal the trial judge’s denial of his motion to suppress. He claims that he would have proceeded to trial if the trial judge was not biased against him.

The postconviction court attached to its order a partial transcript of the plea negotiations that reflects that the trial judge would not accept the plea if the terms of the agreement included Hemmy’s right to appeal the denial of his motion to suppress. The postconviction court concluded that a trial judge is not required to accept a plea as negotiated by the parties; therefore, the trial judge’s refusal to allow Hemmy to reserve his right to appeal the denial of his motion to suppress as part of his plea agreement was not improper.

Nevertheless, the postconviction court failed to attach to its order a copy of the written plea agreement, the change of plea transcript, or any documentation to conclusively refute Hemmy’s claim that his plea was involuntary because he was coerced by the trial judge into agreeing to it. See Montgomery v. State, 615 So.2d 226, 227 (Fla. 5th DCA 1993) (“an allegation that a plea was involuntary or was based on a misunderstanding or mistake can be refuted by a written plea agreement or plea transcript which conclusively establishes the defendant’s understanding and that the plea was not coerced”) (citing Knowles v. State, 582 So.2d 167 (Fla. 1st DCA 1991); Rackley v. State, 571 So.2d 533 (Fla. 1st DCA 1990)).

Accordingly, we reverse and remand for further proceedings on this claim. On remand, the postconviction court may hold an evidentiary hearing or, if the postcon-viction court should again summarily deny Hemmy’s claim, it must attach those portions of the record that conclusively refute his claim.

Reversed and remanded for further proceedings.

WHATLEY and DAVIS, JJ., concur.


text:
    Willie R. LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3102.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.

      Willie R. Lee, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated August 9, 2006, we dismiss this appeal. The trial court found the appellant’s claims in his rule 3.850 motion facially insufficient and dismissed the motion without prejudice to refile a facially sufficient motion. Rowe v. State, 932 So.2d 1291 (Fla. 2d DCA 2006). Therefore, the trial court’s order is a non-appealable, nonfinal order. Williams v. State, 884 So.2d 374 (Fla. 2d DCA 2004).

DISMISSED.

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