author: GRIFFIN, J.

text:
    Henry BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2275.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2007.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Henry Brown, Jr. (“Brown”), appeals his sentence for aggravated assault and aggravated battery. We reverse.

Brown was charged by information with one count of attempted second-degree murder (Count I) and one count of aggravated battery with a deadly weapon causing great bodily harm (Count II). Brown was convicted by a jury of the lesser included offense of aggravated assault in Count I and aggravated battery as charged in Count II.

A sentencing hearing was conducted on June 24, 2005. Brown’s scoresheet reflected a sentencing range between 95.25 months and twenty years of incarceration. During the hearing, the State asked for the maximum available sentence of twenty years based on Brown’s violent prior criminal record. In response to a question from the Court, the prosecutor replied:

The most I could do on count one, Your Honor, would be the 15 years because it’s a second-degree felony.

Brown then argued for a downward departure or a term of supervision. Thereafter, consistent with the prosecutor’s prior statement as to the maximum available sentence for Count I, the trial court orally pronounced the following sentence:

It’s the sentence of this court that on count one he be sentenced to 14 years in the Department of Corrections. On count two be [sic] sentenced to five years in the Department of Corrections. That will be concurrent rather than consecutive, and he will be given credit for time served.

The problem, however, was that it was Count II that carried a fifteen year statutory maximum. Count I was subject to a five year maximum sentence. The written sentence initially comported with the oral pronouncement; however, apparently on the same day, the sentencing judge changed the sentence to reflect five years on Count I and fourteen years on Count II.

Brown then filed a rule 3.800(b) motion to correct an illegal sentence, arguing that the oral pronouncement of the fourteen-year sentence for Count I was illegal. The State countered that, under this Court’s opinion in Sands v. State, 899 So.2d 1208 (Fla. 5th DCA 2005), the sentence could lawfully be “restructured” to reflect a sentence of five years on Count I and fourteen years on Count II. The State also filed its own rule 3.800(b) motion to correct sentence. The trial judge, Kim C. Hammond, entered an order granting the State’s motion, noting in the order that the sentencing judge, Senior Judge Hitt, had corrected the written sentence on the day of sentencing. The order states:

At sentencing ... the Court initially indicated 14 years on the aggravated assault and 5 years on aggravated battery on the written judgment and sentence, however that was changed to reflect the Court’s oral pronouncement of five years on the aggravated assault and H years on the aggravated battery Judge Hitt initialed these corrections on the written judgment and sentence.... Therefore, it was the intent of the Court to sentence [Brown] to 1⅛ years on the aggravated battery and 5 years for aggravated assault. The State’s Motion being timely filed pursuant to Florida Rule of Criminal Procedure 3.800(b) and specifically alleging a correctable scrivener’s error it is hereby
ORDERED AND ADJUDGED the State’s Motion to Correct Sentence is Granted, nunc pro tunc, sentencing [Brown] to 5 years on count one, aggravated assault and 14 years on count two, aggravated battery.

(emphasis added) (footnote supplied).

On appeal, Brown argues that his fourteen-year sentence for Count I is illegal because it exceeds the statutory maximum, which in this case is 95.25 months, the “lowest permissible” sentence under the scoresheet. See Butler v. State, 838 So.2d 554, 556 (Fla.2003). He also claims the court was not permitted to increase his sentence under Count II because the sentence imposed was legal and he already had begun to serve the sentence. The State says that under Sands it was permissible for the lower court to restructure Brown’s sentence so long as his aggregate sentence did not exceed the maximum lawful sentence and is not vindictive.

It is well established that a court’s oral pronouncement of a sentence controls over the written sentencing document. See Williams v. State, 957 So.2d 600, 603 (Fla.2007); Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003); Justice v. State, 674 So.2d 123, 126 (Fla.1996). When the written sentence results in a sentence that is more severe than the sentence announced in court, the sentence is illegal and must be corrected. The issue in this case is whether it was permissible for the court to amend Brown’s written sentence, contrary to the oral pronouncement, by switching the sentences for Count I and Count II.

We begin by concluding 'that our Sands decision has no application to this case. The Sands court simply followed prior precedent that permits a court to restructure a sentence in a manner that effectuates the governing plea agreement. In reaching its decision, the Sands court stated:

We acknowledge that the outcome here may not be to [appellants] liking. After all, it is quite obvious that the essence of his complaint is not that he' has been deprived of the benefit of his bargain; rather, it is that he did not receive from the trial court a less severe sentence than he bargained for. We believe, however, that a plea agreement should be adhered to by both parties if it is legally permissible to do so. The trial court attempted to provide both [appellant] and the State what they were entitled to under their plea agreement, but it made a mistake in the calculation of the total probationary sentence. We will correct that error by requiring the trial court to reduce [appellant’s] aggregate probationary sentence by 4.8 months.

899 So.2d at 1211-12.

Shepard v. State, 940 So.2d 545 (Fla. 5th DCA 2006), is more to the point. Here, the issue on appeal was whether the trial court violated appellant’s double jeopardy rights by recalling the parties after the sentencing hearing had concluded and then changing its oral pronouncement of concurrent to consecutive on one of appellant’s sentences. In Shepard, the lower court orally pronounced that the appellant was sentenced to thirty years on Count I and five years on Count II, with these sentences to run consecutively. As to Count III, the court sentenced him to thirty years and stated the sentence would be concurrent .with the sentences imposed in Counts I and II. The court concluded the hearing after he advised appellant of his right to appeal and confirmed there were no other matters that needed to be addressed. Approximately fifteen minutes later, the trial judge recalled the parties, acknowledged a mistake and changed the sentence from concurrent to consecutive. The Shepard court noted that the trial court’s oral pronouncement was unambiguous and said that although the lower court was permitted to correct its misstatement prior to the conclusion of the sentencing hearing, a trial court’s pronouncement becomes final when the sentencing hearing ends. Id. at 548.

The Supreme Court’s decision in Ashley also applies. In Ashley, the defendant was charged with possession of a firearm by a convicted felon. Prior to trial, the state filed a notice of intent to classify the defendant as a habitual violent felony offender (HVFO) based on a prior robbery conviction. At trial, the jury found him guilty as charged.

At the sentencing hearing, the prosecutor requested that the defendant be sentenced as an HVFO. Defense counsel requested the trial court to exercise its discretion not to sentence him as an HVFO. On the following day, the trial court pronounced sentence. The trial court orally sentenced the defendant as a habitual felony offender (HFO) and sentenced him to twenty-five years. in prison.

The written judgment and sentence indicated that the defendant had been sentenced as an HVFO to twenty-five years in prison with no minimum mandatory term noted on the written form. • Three days later, the defendant was brought back to court and orally sentenced to twenty-five years as an HVFO. For the first time, the court imposed a ten-year minimum mandatory term. The new written judgment and sentence was consistent with the court’s second oral pronouncement. The supreme court held the resentencing of the defendant violated his constitutional right against double jeopardy. Ashley, 850 So.2d at 1267.

In the present case, it appears the sentencing judge may have been inadvertently misled into getting the sentences for the two counts backwards. Nonetheless, such an error cannot be changed once the sentencing hearing has concluded, at least where the originally pronounced sentence was neither ambiguous nor illegal. The court was obliged to correct the illegal sentence in Count I but was not permitted to change the legal sentence on Count II after,Brown began to serve his sentence. See.Wilhelm v. State, 543 So.2d 434, 435 (Fla. 2d DCA 1989). We see no impediment, however, upon resentencing, in having Count I and Count II run consecutively, rather than concurrently, if that more accurately reflects the sentencing intent.

REVERSED and REMANDED. . .

ORFINGER and EVANDER, JJ., concur.

      . Aggravated assault is a third-degree felony punishable by a maximum of five years’ incarceration and aggravated battery is a second-degree felony punishable by a maximum of fifteen years' incarceration.

      . Brown’s prior record includes, among others, an escape, an aggravated assault with a deadly weapon, two domestic violence batteries, and two drug convictions.

      . Fla. R.Crim. P. 3.800(b).

      . The order rendered by Judge Hammond misapprehends the facts. The transcript clearly shows that the orally pronounced sentence was fourteen years for Count I and five years for Count II. This does not appear to be a scrivener’s error as the order indicates.

      .§ 921.0024(2), Fla. Stat. (2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    George C. MITCHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3881.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Carey Haughwout, Public Defender, Margaret Good-Earnest and Alan T. Lip-son, Assistant Public Defenders, West Palm Beach, and George C. Mitchley, Doral, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an Anders appeal in which we affirm the judgment and sentence. Anders v.. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Though appellant filed an initial brief, his issues should be presented in a timely motion filed in accordance with Florida Rule of Criminal Procedure 3.850. We note that the amended judgment, while correctly identifying the offense of which appellant was convicted as attempted second degree murder, incorrectly references the offense as a first degree felony and also indicates that judgment was the result of a plea. We remand for the trial court to correct these scrivener’s errors.

SHAHOOD, C.J., GUNTHER and WARNER, JJ., concur.


author: ' PER CURIAM.

text:
    Jeremy Marquise CARTER, Appellant, v. BROWARD COUNTY SHERIFF’S OFFICE and EMSA Health Care, Appellees.
    No. 4D06-4566.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.

      Jeremy Marquise Carter, Coleman, pro se.
    Terrence 0. Lynch, Assistant Legal Counsel, Sheriff of Broward County, Fort Lauderdale, for appellee.
   ' PER CURIAM.

We affirm the circuit court’s denial of attorney’s fees incurred in a public records proceeding because appellant proceeded pro se. See State Dep’t of Ins. v. Fla. Bankers Ass’n, 764 So.2d 660 (Fla. 1st DCA 2000). We reverse the denial of taxable costs and remand for a hearing on taxable costs that appellant incurred in the circuit court proceedings.

Affirmed in part, reversed in part, and remanded.

WARNER,'KLEIN and GROSS, JJ., concur.


text:
    Willie BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-678.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Willie Burgess, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the circuit court’s summary denial of appellant’s rule 3.850 motion for post conviction relief. We reverse and remand for further attachment of records or for an evidentiary hearing.

Appellant alleged ineffective assistance of counsel for failing to move to suppress his confession after being read Miranda warnings by the Broward County Sheriffs Office. The warnings given to appellant are the same which gave rise to Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied sub nom., State v. West, 892 So.2d 1014 (Fla.2005) (suspects must be informed of their right to have an attorney present before and during questioning). The circuit court has failed to attach records which conclusively refute appellant’s allegations of ineffective assistance of counsel which have been sufficiently plead. As such, this matter must be reversed and remanded for further attachment or an evidentiary hearing. See Anthony, v. State, 927 So.2d 1084 (Fla. 4th DCA 2006); Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005) (allegations that trial counsel was ineffective in failing to move for suppression of a statement made after defective Miranda warnings are legally sufficient).

SHAHOOD, C.J., STONE and KLEIN, JJ., concur.

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


text:
    David W. WAINER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1196.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    David W. Wainer, Polk City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

David W. Wainer appeals the summary denial of his motion filed in accordance with Florida Rule of Criminal Procedure 3.850. Through a previous appeal we concluded that Wainer’s claim was timely and remanded the case for further review. Wainer v. State, 943 So.2d 894 (Fla. 4th DCA 2006). The order denying relief following remand accepted the state’s position that the record refutes Wainer’s claim associated with a favorable plea offer. We reverse and remand for the trial court to conduct an evidentiary hearing on Wain-er’s legally sufficient claim. Cottle v. State, 733 So.2d 963 (Fla.1999); Garcia v. State, 736 So.2d 89 (Fla. 4th DCA 1999); Gonzales v. State, 691 So.2d 602 (Fla. 4th DCA 1997).

We recognize that there is uncertainty about the specific term that Wainer claims was offered, and that in most cases this would render the claim legally insufficient. Wainer alleges that during recent discussions defense counsel commented: “maybe you should have taken the state’s offer.” According to Wainer, he told counsel that he would not have accepted the 24 or 28.7 year offer. Wainer alleges that counsel replied: “the state offered the lowest score at the bottom of the guidelines.”

The record, which includes two plea forms, reférences Wainer’s “guidelines” range as 28.7-35.8 years. However, it also includes a scoresheet that was prepared in one of the two cases that reflects a sentencing range of 17.7 years with a 29 year maximum.

As a result, we find that the claim was not conclusively refuted by record attachments and reverse and remand accordingly. On remand the trial court can consider the exact term offered and whether Wain-er can demonstrate the requisite prejudice. Cottle.

Stone, POLEN and KLEIN, JJ., concur.


text:
    John Foster REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1522.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    John Foster Reed, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, John Reed, appeals the summary denial of his rule 3.850 motion alleging ineffective assistance of counsel. We reverse because the record does not conclusively refute his allegations.

Appellant was charged by amended information with committing his offense between March 31, 1996 and May 3, 1996. Appellant contends that he was incarcerated during that period, that he provided counsel with such information, and allegedly, instead of introducing such exculpatory information, counsel coerced him into entering a plea. A movant’s allegations are accepted as true unless they are conclusively refuted by the record. Stancle v. State, 917 So.2d 911, 912 (Fla. 4th DCA 2005); Tompkins v. State, 872 So.2d 230, 238 (Fla.2003); Valle v. State, 705 So.2d 1331, 1333 (Fla.1997).

The state, in response, attached a Department of Corrections Offender Network printout and the circuit court clerk’s docketing statement in an .attempt to refute appellant’s allegations. The docketing statement does not provide the date of appellant’s release from.-incarceration in 1996; it provides only-the date of his arrest for violation of probation and does not conclusively refute the allegations. Further, this court has held that a DOC Offender Network printout will not satisfy the requirements of Florida Rule of Criminal Procedure 3.850(d). McIntyre v. State, 844 So.2d 679 (Fla. 4th DCA 2003). As such, the state has failed to conclusively refute appellant’s allegations on the face of the record.

Therefore, this matter is reversed and remanded to the trial court for further attachment of portions of the record which conclusively refute appellant’s allegations, or for an evidentiary hearing.

WARNER, POLEN and KLEIN, JJ., concur.

      . Rule 3.850(d), states in pertinent part: “If the motion, files, -and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order.”


author: WARNER, J.

text:
    Brandon DEMPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1767.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Appellant appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in which he claims ineffective assistance of counsel for failing to object to the scoring of offenses which should have been barred by double jeopardy concerns. As the record does not conclusively refute his allegations, we reverse.

Brandon Demps pled and was adjudicated guilty in three separate 1999 prosecutions for possession of marijuana, two counts of armed robbery in one incident, and two counts of armed robbery in another incident. He was sentenced in 2000 to a total of 157.425 months in prison, the lowest permissible sentence on the criminal punishment code scoresheet. No direct appeal was filed. Demps was permitted by trial court order to file a belated rule 8.850 motion.

Demps alleges ineffective assistance of counsel in failing to ensure that his score-sheet did not contain offenses that were barred from scoring by double jeopardy, as his two cases of armed robbery contained two counts, each of which involved one continuous criminal episode. Eliminating two counts (one from each case) from his scoresheet would have reduced his lowest permissible prison sentence by about half. He claims that since the judge sentenced him to the lowest permissible prison sentence, the inclusion of prior record points required resentencing.

In case 99-3490, appellant robbed a Latin American Supermarket in Pompano Beach, carrying a firearm. The victims were two clerks, Hasan Abdin and Evelyn Bidamaime. In case 99-4359, appellant robbed a Fina Gas Station in Pompano Beach, and the victims were Louis Diaz and Alfredo Bolanos. Appellant was alleged to have taken money from the gas station as well as Bolanos personally. However, in both incidents appellant took money from only one person, even though some of it was personal money of the employee and some was that of the employer. Appellant maintains that only one count of robbery is proper when there is a taking of property from one victim, even if the property belonged to different owners. See Butler v. State, 711 So.2d 1183 (Fla. 1st DCA 1998) (holding that defendant was improperly convicted of two counts of armed robbery when he took property of convenience store and of store employee, where taking was “during one continuous episode”); Anderson v. State, 639 So.2d 192 (Fla. 4th DCA 1994); Morgan v. State, 407 So.2d 962 (Fla. 4th DCA 1981).

The state’s response to our order to show cause does not clear up the record as to whether these two counts were barred by double jeopardy and whether this constituted ineffective assistance of counsel. Nothing in the informations filed or the proffer made to support the pleas contradicts appellant’s specific assertions that each case involved only one robbery. There is nothing in the record to show that separate money was taken from separate cash registers over which only one employee but not the other had control, as in Brown v. State, 430 So.2d 446 (Fla.1983), the case the trial court cited but which is distinguishable.

A defendant who enters a general or open plea does not waive double jeopardy claims. Novatan v. State, 634 So.2d 607 (Fla.1994). See also Ford v. State, 849 So.2d 477 (Fla. 4th DCA 2003). In this case, appellant made an open plea to the court. Therefore, the claim that trial counsel was ineffective in failing to raise the double jeopardy violation, which would have reduced his lowest permissible sentence, has not been conclusively refuted by the record before us. See Brown v. State, 958 So.2d 1125 (Fla. 2d DCA 2007).

We reverse the denial of appellant’s motion and remand for attachment of records conclusively refuting the allegations or for an evidentiary hearing.

FARMER and KLEIN, JJ., concur.


author: ALTENBERND, Judge.

text:
    Omar MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1651.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2007.
   ALTENBERND, Judge.

Omar Martinez appeals the trial court’s order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Martinez is seeking additional jail credit in regard to circuit court case number 04-CF-747. We reverse the order and remand for the trial court to award additional jail credit. This may result in Mr. Martinez’s right to immediate release.

Mr. Martinez was convicted of burglary and grand theft in Lee County in case number 04-CF-747 on June 29, 2004. He received a sentence of probation. While on probation, he committed another burglary in Lee County on October 15, 2004. He was arrested for this new offense on the same day. This offense resulted in a new charge of burglary in case number 04-CF-16629. Mr. Martinez has not been out of custody since the day of this arrest.

On the day following his arrest for the new burglary, Mr. Martinez was “arrested” while in the Lee County jail on an alleged violation of probation in case number 04-CF-747. This alleged violation was not based on the new offense but rather on Mr. Martinez’s alleged changing of his residence without the permission of his probation officer.

On May 11, 2005, the trial court conducted a hearing on the violation of probation. The State did not attempt to add the new offense as an additional ground for the violation. The trial court found Mr. Martinez not guilty of the violation of probation and ordered him released from custody on case number 04-CF-747 only. This release had no practical benefit for Mr. Martinez because he was still in jail awaiting trial on the newer charge.

The very next day, a new affidavit of violation of probation and warrant were issued alleging the new offense as the violation of probation. Even though Mr. Martinez was in the local jail, he was not “arrested” on the new warrant until approximately eleven months later on April 17, 2006.

On July 19, 2006, Mr. Martinez pleaded nolo contendere to the new burglary charge in case number 04-CF-16629, and the trial court sentenced him to a term of incarceration of 3 years and 18 days. He received 643 days of jail credit for this offense. However, he was not sent to the Department of Corrections at that time because the affidavit alleging a violation of probation in ease number 04-CF-747 was still pending.

On August 2, 2006, the trial court revoked Mr. Martinez’s probation in case number 04-CF-747 and sentenced him to two concurrent terms of imprisonment of three years. These sentences were specifically to run concurrently with the active sentence imposed in case number 04-CF-16629 a few days earlier. However, for these sentences in case number 04-CF-747, he received jail credit of only 441 days. This- calculation did not include credit for the period between May 11, 2005, and April 17, 2006, when Mr. Martinez was “released” from incarceration in case number 04-CF-747 but was detained in jail for the new burglary charge in case number 04-CF-16629.

The narrow issue in this case is whether the State, by delaying execution of an arrest warrant on a detainee in the local jail, can avoid providing jail credit to the detainee on a sentence imposed for a violation of probation based on a new offense: (1) when the detainee is at all relevant times in jail pending disposition of that same new offense, and (2) when the sentence on the new.offense and the offense on violation of probation are imposed to run concurrently. At least in this narrow context, the detainee is entitled to receive jail credit from the date of the issuance of the affidavit of violation and related warrant if the warrant is not served within a reasonable time.

When a committing trial court issues a warrant on an affidavit of violation of probation, it is “returnable forthwith” before the court that granted the term of probation. See § 948.06(l)(b), Fla. Stat. (2005). The term of probation does not continue running while the warrant is outstanding. Instead the term .of probation is “tolled.” See § 948.06(l)(d). When a sheriff receives such a warrant, there may be no urgency from the perspective of public safety to arrest the person who is already in jail, but the sheriff does have a duty and obligation to execute such warrants. See § 30.15(l)(b), Fla. Stat. (2005).

Section 921.161(1), Florida Statutes (2005), provides in pertinent part that “the court imposing a. sentence shall allow a defendant credit for. all of the time she or he spent in the county jail before sentence.” In Daniels v. State, 491 So.2d 543, 544-45 (Fla.1986), the supreme court held that concurrent sentences generally should be imposed with overlapping jail credit. This statutory entitlement to presentence jail credit, however, starts with an arrest for a criminal offense. See Gethers v. State, 838 So.2d 504, 506-507 (Fla.2003); Bedford v. State, 880 So.2d -1265, 1266-67 (Fla. 2d DCA 2004). As a result, the courts have refined the holding in Daniels so that defendants do not typically receive jail credit for time in jail prior to their actual arrest for a new offense. See White v. State, 940 So.2d 1165 (Fla. 2d DCA 2006); Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002); Davenport v. State, 664 So.2d 323 (Fla. 1st DCA 1995).

The circumstances in this case, however, are different from those in a case like Davenport, in which bond was revoked by a judge at 'first appearance on some, but not all, pending charges when the defendant was rearrested. Here the loss of jail credit does not depend upon a ruling of the court at a hearing where Mr. Martinez was represented by counsel. Instead, after losing the hearing on the first affidavit of Violation, the local authorities took all steps to immediately toll Mr. Martinez’s term of probation but did not take the simple step necessary to commence his jail credit. It seems noteworthy 'that the factual basis for his detainment on both the affidavit alleging a violation of probation and the new offense are identical. To condition receipt of jail credit under such circumstances on the sole factor of when the local sheriff finally gets around to arresting his or her prisoner would be to condition jail credit on- a nonjudicial factor that was beyond Mr. Martinez’s control and which was completely arbitrary.

We conclude that section 921.161(1) must be interpreted in favor of Mr. Martinez under these circumstances and must allow jail credit on the violation of probation from the day that he was first arrested on the affidavit of violation of probation, October 16, 2004.

Reversed and remanded with directions.

STRINGER and SILBERMAN, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    David BREVICK, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D06-3422 to 5D06-3424.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.

      Kepler B. Funk, Keith F. Szachacz and Alan S.' Diamond, of Funk, Szachacz & Diamond, LLC, Melbourne, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

David Glenn Brevick [“Defendant”] appeals the trial court’s judgment, revoking the probation he was serving for several 2005 convictions. Because we conclude that the State failed to prove a new law violation, we reverse.

On March 27, 2006, Defendant was arrested for providing false information to an officer, in violation of section 901.36, Florida Statutes. The trial court held a hearing to determine whether Defendant had actually violated section 901.36, Florida Statutes, and, thus, had also violated his probation.

At the hearing, the testimony of Francia Vargas, Officer Ken Shedrick, Officer Lisa Smoak, and Defendant established that the following had occurred: On the evening of March 27, 2006, Ms. Vargas, Defendant, and Ms. Vargas’ son (“Son”) were in Ms. Vargas’ apartment. . While there, they received calls from Ms. Vargas’ ex-husband, Juan Carvajal. Mr. Carvajal later came to the apartment, demanding to see Son. When Mr. Carvajal attempted to grab Son and put him in his truck, the boy ran away. Ms. Vargas and Defendant got into Ms. Vargas’ car and drove around the neighborhood, looking for Son.

Ken Shedrick, an off-duty officer with the Cocoa Police Department, lived in the same Melbourne apartment' complex as Ms. Vargas. While Defendant and Ms. Vargas were driving around the neighborhood, Officer Shedrick was returning home from work. As he was returning home, Mr. Carvajal ran up to his car. Carvajal was upset and yelling in a mix of Spanish and English. Carvajal indicated to Officer Shedrick that he thought Defendant had harmed or scared away his son. About that time, Defendant and Ms. Vargas drove up. Both Defendant and Ms. Vargas remained in their car. Defendant rolled down his window to hear what was going on.

Since Officer Shedrick was outside his jurisdiction, he called the Melbourne Police Department for service. Meanwhile, Defendant and Mr. Carvajal began arguing. Then, in sight of Officer Shedrick, Mr. Carvajal ran over to the car in which Defendant was sitting and punched Defendant in the face through the open car window. - Defendant remained in the car, and did not fight back.

When Melbourne Police Department Officer Smoak arrived' at the scene, Defendant told Officer Smoak that he did not want to press charges against Carvajal for the battery. Officer Smoak then asked Defendant his name. According to Officer Smoak, Defendant gave her his middle and last name, which would be “Glen Brev-ick.”

Officer Shedrick ran a computer check on the name that Defendant had provided, but'could not retrieve" any information on that name. Defendant then admitted that he had not given his full name because he was on probation and had been instructed to have no contact with police.

Officer Smoak testified at the hearing that, at the time Defendant gave her the false information, it appeared that Defendant was the victim. Nonetheless, she explained that Defendant was not free to leave at that time. She said:

He was being detained because I was trying to figure out everything that was going on. It wasn’t a very peaceful moment at that time. No one was free to leave until I figured out what was going on.

She said that the reason he was not free to leave was that she had not completed her investigation. There is no indication in the record, however, that the officers stopped Defendant at the scene, that they asked him to remain, or that they asked him to exit his vehicle prior to his arrest. There is also no indication in the record that either of the officers communicated to the Defendant that he was not free to leave.

At. the conclusion of the hearing, the trial court found that it was “clear from [Defendant’s] own testimony that he knew he was giving false information to them,” and that “he was giving it so he wouldn’t be detected.” The judge observed that, “really, the only factual issue remaining is whether he’s being detained at that point. And while the investigation was being done he was being detained. The Court finds a willful and substantial violation of condition 5 of the orders of probation.” He was sentenced to concurrent terms of 16.2 months in prison with 24 months of probation to follow.

Section 901.36(1), Florida Statutes (2006) provides:

It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel. Except as provided in subsection (2), any person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Accordingly, “[t]he plain language of section 901.36(1) requires that, in order to be in violation of the statute, the giving of a false name or identification must occur following arrest or lawful detention.” Whyte v. State, 940 So.2d 1174, 1175 (Fla. 2d DCA2006).

There was indisputably no lawful arrest preceding the giving of the false name in this case. The issue is whether Brevick was “lawfully detained.” Police contact rises to the level of a detention when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Voorhees v. State, 699 So.2d 602, 608 (Fla.1997). A detention does not occur simply because an officer approaches and asks questions, or requests to examine identification. See id. A detention is “lawful” when the officer has “a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001); § 901.151(2), Fla. Stat. (2006). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop.” Id.

Although it appears that Officer Smoak’s activities may have been, from her perspective, a “detention” to determine whether Defendant had committed an offense, nothing in the record suggests any basis to conclude that Defendant would have had reason to know he had been detained; ie., that he was not free to leave. He had just been battered, the victim of an unprovoked attack, while sitting in his vehicle. As far as the record shows, he remained in his vehicle. His statement that he did not want to press charges reflects his state of mind as a victim, not a suspect. Even Officer Smoak, in coaxing him to give his correct name, told him only that she had to have it to “document” her report. The language of section 901.36(1) suggests that the commission of an offense under that statute requires either a subjective or an objective awareness that the individual has been detained by police, thereby triggering the statute’s requirement of truthful identification.

REVERSED and REMANDED.

TORPY and ORFINGER, JJ., concur.

GRIFFIN, J., concurring and concurring specially with opinion.

GRIFFIN, J.,

concurring specially.

Although not raised below or on appeal, there is a second reason why Mr. Brevick should not have been convicted. The facts of this case and the arguments made on behalf of Mr. Brevick are well within the parameters of what the case law denominates “recantation.” A.A.R. v. State, 926 So.2d 463 (Fla. 4th DCA 2006); see also Atkins v. State, 959 So.2d 1267 (Fla. 5th DCA 2007). Assuming that the information Defendant provided rose to the level of giving a “false name” or “falsely identifying himself,” Mr. Brevick promptly recanted and provided complete and correct information immediately upon being taxed by law enforcement with the accuracy of the identity information he had given. He explained he had not expected anyone to try to verify his identity, merely record it in a report. As soon as he was informed that his identity was being investigated, he acted promptly to give the correct information. The wasted time and effort on the part of law enforcement was minimal. Therefore, this record does not establish the commission of an offense under section 901.36.

      . Further, Officer Smoak testified that Defendant gave her a date of birth that was off by one digit. Defendant testified that he gave his correct birth date. He also said he gave his first and middle name. Specifically, Defendant testified:
      Q. So the purpose of giving Officer Smoak David Glen as your name was because you didn’t want, it was to cover up the fact, why exactly did you give David Glen as your name?
      A. Well, it’s my first and middle name. I just thought she was going to take the notepad (sic) and that would be the end of it and let us go.
      At the same time Officer Nelson said no contact with police so I thought that meant absolutely none. So yes, I was trying to do what was right in my own way.

      . Section 901.151(2), Florida Statutes (2006) (“Florida Stop and Frisk Law”) provides:
      Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.


author: WOLF, J.

text:
    Aaron V. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0172.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2007.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Thomas Winokur and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his revocation of probation order. Appellant was charged with violating his probation by (1) failing to report to his probation officer on two separate incidences; (2) changing his residence without permission; and (3) committing new law offenses. At the hearing, the State called a probation officer to testify regarding appellant’s technical violations. This probation officer had neither worked with nor seen appellant prior to the day of the hearing. Her testimony amounted to dictation of another probation officer’s notes. However, the State did offer the testimony of two officers stating that appellant had, on two separate incidences, committed battery while attempting to flee from arrest. In addition, the officers testified that, at the time of his arrest, appellant had been found with illegal drugs and a weapon. In addition, appellant’s sister testified that appellant had left his current residence and lived “some of everywhere.”

Following appellant’s revocation of probation hearing, the trial court orally stated:

The Court’s going to find Mr. Thompson guilty of violation of probation in 05-185. I find that there was more than sufficient evidence of guilt of the violation. Are both sides ready to proceed to sentencing?

It is unclear whether this oral pronouncement referred to all alleged violations or just a particular violation. The trial court gave no indication that he was finding appellant not guilty of any specific violations. In a later filed Order of Revocation of Probation, the trial court found appellant had violated his probation listing only the technical violations, with no reference to the new law offenses. When a conflict exists between an oral revocation pronouncement and the written order revoking probation, the oral pronouncement will control. Cockrell v. State, 823 So.2d 322, 323 (Fla. 2d DCA 2002); Narvaez v. State, 674 So.2d 868 (Fla. 2d DCA 1996). Because it is unclear whether the general pronouncement of guilt comported with the written order, we reverse the order of revocation and remand for the entry of an order specifically identifying which conditions appellant was found guilty of violating. However, based on the following, we further direct the trial court to strike a finding of violation as to appellant’s failure to report to his probation officer.

Appellant asserts the finding of guilt as to the technical offenses should be reversed because the trial court relied on hearsay evidence alone to support the revocation. The only testimony presented at trial to offer proof of appellant’s violations for failure to report was that of a probation officer, who had never met appellant, recounting her colleague’s notes. Appellant is correct that this is hearsay evidence, which standing alone, cannot be used to support a finding of guilt as to those charges. See Dawson v. State, 921 So.2d 763 (Fla. 1st DCA 2006) (holding that hearsay testimony, alone, is insufficient to support a revocation of probation); Meade v. State, 799 So.2d 430 (Fla. 1st DCA 2001) (holding that evidence in the form of a probation officer’s testimony regarding a report he had neither compiled nor prepared was hearsay and, without more, insufficient to establish a violation of probation).

However, substantive testimonial evidence was admitted to support the trial court’s finding that appellant had changed his residence without properly notifying his probation officer. J.F. v. State, 889 So.2d 130, 132 (Fla. 4th DCA 2004) (holding that probation may be revoked based on a combination of hearsay and nonhear-say evidence). Accordingly, the trial court did not err in finding appellant guilty of a violation based on his unauthorized change of residence.

Based on the above, we reverse and remand the revocation of appellant’s probation and direct the trial court to enter a written order striking a finding of guilt as to the failure to report violations while expressly outlining which of the other alleged violations appellant has been found guilty of violating.

REVERSED.

PADOVANO and POLSTON, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Demetrius SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-6069.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

After revoking appellant’s probation, the trial court sentenced him to prison for fifteen years. Originally he had been sentenced—for lewd and lascivious behavior with a twelve-year-old girl—to two years in prison followed by three years’ probation.

The decision to revoke probation entails an exercise of discretion. See Bell v. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994) (“The standard of review for probation revocation orders is whether the trial court abused its discretion.” (citing Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992))). While he was on probation, appellant lived with his mother, who, at some point, took in two of her great-grandchildren, an eleven-month-old and a twenty-two-month-old. This became the basis for two specifications in the affidavit alleging probation violations, viz.: failing to report the children were in the home and being in their presence by sharing the home. In addition, the trial judge believed testimony that the appellant had admitted smoking a marijuana cigarette, which was the basis for a third specification.

Although the foregoing grounds could alone support revocation, see State v. Carter, 835 So.2d 259 (Fla.2002), the court below relied, at least in part, on yet another ground: The final specification deemed proven was that appellant had not begun or taken steps to begin a sex offender treatment program. The record does not reveal how long completion of such a program would take, but nothing in the record suggests that it could not have been completed within the two years and some nine months that remained of the probationary term.

This last ground for revocation was improper. See Campbell v. State, 939 So.2d 242, 244 (Fla. 1st DCA 2006) (holding “ ‘evidence of the failure to complete a counseling program is insufficient to establish a willful and substantial violation of probation if the condition in question does’ not specify a time for completion’ ” (quoting Quintero v. State, 902 So.2d 236, 237 (Fla. 2d DCA 2005))). See also Yates v. State; 909 So.2d 974, 975 (Fla. 2d DCA 2005); Wilkerson v. State, 884 So.2d 153, 153-54 (Fla. 2d DCA 2004); O’Neal v. State, 801 So.2d 280, 280-81 (Fla. 4th DCA 2001); Jones v. State, 744 So.2d 537, 538 (Fla. 2d DCA 1999).

We cannot say with certainty:, that the trial court would have revoked the appellant’s probation — and pronounced a fifteen-year sentence — based on its finding that the appellant smoked a single marijuana cigarette, see Fox v. State, 876 So.2d 717 (Fla. 4th DCA 2004) (remanding for the trial court to determine whether a single sale of marijuana made revocation appropriate), even in conjunction with the appellant’s failure to report that he shared his mother’s home with his toddling grandnieces. See Warren v. State, 924 So.2d 979, 981 (Fla. 2d DCA 2006) (remanding for determination whether a “single technical violation” of failing to file a report made revocation appropriate). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

BENTON and PADOVANO, JJ., concur; THOMAS, J.,' Dissents with Opinion.

THOMAS, J.,

Dissenting.

I respectfully dissent. The trial court revoked. Appellant’s probation based on several violations, including filing a report with his probation officer that he lived alone with his mother, while knowing this to be false because two children also lived in the home. As a convicted sex offender involving a child victim, Appellant’s false report was a very serious probation violation.

Although the majority is correct that we are precluded from affirming Appellant’s violation for failure to complete a sex offender treatment program because he had time remaining on his probation and could have, conceivably complied with this condition, I would affirm the revocation of Appellant’s probation and his 15-year sentence regardless of this invalid violation. In my view, the trial court would have revoked Appellant’s probation based on filing a false report that he lived alone with his mother and his admission to his probation officer that he smoked a marijuana cigarette.

I find further support to affirm Appellant’s probation revocation by the trial court’s refusal to grant Appellant leniency when he asked for it. The trial court said, “I think you got your leniency the last time around. You got a below the guidelines sentence for some unknown reason, which I can’t figure because the charge does not sound good.” Thus, it is clear that the trial court would have revoked Appellant’s probation based solely on the two violations we affirm: filing a false report to his probation officer and smoking marijuana.

When the record demonstrates that the trial court would have revoked probation without regard to an invalid violation, an appellate court will affirm the revocation. See Ogletree v. State, 886 So.2d 420 (Fla. 2d DCA 2004); Smith v. State, 705 So.2d 1033 (Fla. 3rd DCA 1998); Haygood v. State, 687 So.2d 318 (Fla. 4th DCA 1997). The appellate court will remand only where it is not clear that the trial court would have imposed the same sentence based on the valid violations. See Smith, 705 So.2d at 1033. Here, the trial court’s statements make it clear that it would have and will impose the same 15-year sentence based on the valid violations.

With our remand, we are imposing an additional burden on the trial court where there is no reasonable likelihood it will reach a different result. Therefore, I respectfully dissent, and would affirm the trial court’s probation revocation and its sentence.


text:
    Wylie M. VICKERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3128.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.
    Wylie M. Vickery, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the trial court’s denial of Vickery’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Sanders v. State, 946 So.2d 953 (Fla.2006).

AFFIRMED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    William Landers CARUTHERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4473.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public- Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

As a result of several sentencing errors, we find it necessary to remand for a new sentencing hearing. ■

Caruthers was originally charged in case 2006-CF-89 (CF-89) with attempted manufacture of methamphetamine (Count I) and possession of listed chemical (Count II). In case 2006-CF-90 (CF-90) Caruth-ers was originally charged with sale of methamphetamine. He subsequently entered a plea agreement whereby Count I in CF-89 would be dismissed and the charge in CF-90 would be reduced from sale of methamphetamine to possession of methamphetamine. The plea agreement provided for Garuthers to be sentenced to concurrent three year terms of probation on Count II in CF-89 (possession of listed chemical) and on the reduced charge in CF-90 (possession of methamphetamine). The trial court accepted the plea and sentenced Caruthers in accordance with the plea agreement. Count" I in CF-89 (attempted manufacture of methamphetamine) was dismissed.

Caruthers was later charged with violating his probation in both cases. He entered an open plea to the court. The trial court accepted the plea and sentenced Ca-ruthers to five years .incarceration on Count I in CF-89 (the previously dismissed charge), fifteen years incarceration on Count II in CF-89 and five years'incarceration in CF-90. The trial court pronounced that the sentences on the two counts in CF-89 were to run concurrently with each other but consecutive to the prison term imposed in CF-90.

' The trial court erred in sentencing Caruthers on Count I in CF-89 because that count had previously been dismissed. We find Caruthers adequately preserved this issue by suggesting to the trial court that he should only be sentenced on two counts. Accordingly, we remand this case for a new sentencing hearing.

We also note that the written judgments were inconsistent with the court’s oral pronouncement in several respects. Upon resentencing Caruthers, the trial judge should ensure that the written judgments correctly reflect his sentencing decisions.

REVERSED and REMANDED for a new sentencing hearing.

GRIFFIN and TORPY JJ., concur.

      . The written judgment in CF-89 reflected that Caruthers had been sentenced to fifteen years incarceration on Count I — not five years as orally pronounced by the court. The written judgment in CF-89 failed to make any reference to the sentence imposed on Count II and incorrectly reflected that the sentence in CF-89 was to run concurrent with the sentence in CF-90. The written judgment in CF-90 correctly reflected the court's oral pronouncements, but incorrectly notated possession of methamphetamine as a second degree felony rather than a third degree felony.


text:
    Jose SOLANO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2381.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.
    Jose Solano, Immokalee, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Although labeled a petition for belated appeal, what Petitioner really contends is that he timely filed a rule 3.850 motion, but it was lost and never addressed by the trial court. Because this petition involves issues of fact for resolution by the trial court, we transfer this petition to the circuit court to determine if Petitioner is entitled to relief. See Mathews v. State, 958 So.2d 1104 (Fla. 4th DCA 2007) (reversing trial court’s summary denial of motion for leave to refile 3.850 motion where defendant alleged he timely filed rule 3.850' motion that was apparently lost or misplaced after delivery to prison officials).

PETITION TRANSFERRED.

PALMER, C.J., TORPY and EVANDER, JJ., concur.


text:
    Jay Allen NEWCOMB, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2881.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2007.
    Jay A. Newcomb, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Richardson v. State, 705 So.2d 608 (Fla. 5th DCA 1997) (upholding 40-year sentence for second-degree murder on the basis that the offense is a first-degree felony punishable .by life).

THOMPSON, PLEUS and EVANDER, JJ., concur.


author: KELLY, Judge.

text:
    Thomas Edward WOLFE, Jr., Individually and as Trustee of the Tennessee Irrevocable Trust, Appellant, v. Marie Frances STEVENS, as Personal Representative of the Estate of Marie Frances Wolfe, Appellee.
    No. 2D07-2099.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2007.

      R. Gale Porter, Jr., of R. Gale Porter, Jr., P.A., Tampa, for Appellant.
    Eoghan “Owen” P. McGill of Shumaker, Loop & Kendrick, LLP, Tampa, for Appel-lee.
   KELLY, Judge.

Thomas Edward Wolfe, Jr., appeals the trial court order denying his motion to set aside a default final judgment entered against him in a quiet title action brought by his sister, Marie Frances Stevens. Wolfe argues that Stevens’ constructive service of process was defective because Stevens failed to make a diligent search before resorting to service by publication, and therefore, the default final judgment entered against him was void. We agree and reverse.

Stevens, as personal representative of her mother’s estate, sued Wolfe alleging that he had defrauded their mother out of her home by falsifying Stevens’ and the mother’s signatures on a “Deed to Trust.” Approximately two months after filing suit, Stevens filed a sworn statement for constructive service pursuant to sections 49.031 and 49.041, Florida Statutes (2005), and subsequently served Wolfe by publication. Wolfe did not respond, and the trial court entered a default final judgment against him. Approximately seven months later, Wolfe moved to set aside the final judgment under Florida Rule of Civil Procedure 1.540 on the ground that service was defective because Stevens had failed to conduct a diligent search before resorting to service by publication. The trial court denied Wolfe’s motion finding that he had actual notice of the final judgment and that in failing to act diligently to set it aside, “he was not reasonable.”

“ ‘When a complainant resorts to constructive service, he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit.’ ” Gmaz v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970) (quoting Klinger v. Milton Holding Co., 136 Fla. 50, 186 So. 526, 534 (1939)). If constructive service is challenged on the ground that the plaintiff failed to conduct a diligent search, the trial court must determine whether the plaintiff “reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.” McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926); see Gmaz, 238 So.2d at 514. Further, “when a ‘red flag’ is waved to a complainant notifying or warning him of facts which put him on a reasonable course of inquiry as to the whereabouts or residence of a party-defendant to his law suit, he is bound to follow that course to its logical end.” Id.

Stevens had notice of facts that she should have followed before resorting to service by publication. The record indicates that when Stevens filed her complaint she and her attorney knew that Wolfe was represented by counsel. However, instead of contacting Wolfe’s attorney regarding the lawsuit, Stevens filed an affidavit of diligent search and inquiry and proceeded to serve Wolfe by publication. At the hearing on Wolfe’s motion to set aside the final judgment, Stevens’ attorney admitted he had the address and phone number of Wolfe’s attorney and that he could have notified him of the lawsuit but he “made the decision, knowing all the circumstances regarding the accusations that were going back and forth, that I would rather go the statutory route.” Under these circumstances, we cannot conclude that Stevens exercised due diligence in attempting to locate Wolfe. Accordingly, service by publication was improper. See Levenson v. McCarty, 877 So.2d 818 (Fla. 4th DCA 2004) (holding that where the plaintiff made no attempt to contact the defendant by telephone or through his known attorneys, service by publication was improper); Torelli v. Travelers Indem. Co., 495 So.2d 837 (Fla. 3d DCA 1986) (holding that the plaintiff did not exercise due diligence in attempting to locate the defendant where she failed to follow an obvious.lead to the defendant’s whereabouts by inquiring of the defendant’s known attorney).

Wolfe also argues that the trial court erred in finding that he was not entitled to relief because he did not file his motion to set aside the final judgment within a reasonable time as required by rule 1.540(b). We agree. A judgment entered without valid service is void for lack of personal jurisdiction and can be collaterally attacked at any time. Great Am. Ins. Co. v. Bevis, 652 So.2d 382 (Fla. 2d DCA 1995). The appropriate procedure for attacking a void judgment is by a motion for relief from judgment under rule 1.540(b). Id. at 383-84. Because we conclude that Wolfe established at the hearing that he was entitled to relief under the rule, we reverse the order denying his motion to set aside the final judgment and remand for further proceedings.

Reversed and remanded.

NORTHCUTT, C.J., and WHATLEY, J., Concur.


text:
    Alexander Joseph BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4370.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2007.
    Robert D. Eckard and Alexis M. Wert of Law Office of Robert Eckard & Associates, P.A., Palm Harbor, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Alexander Joseph Barrett appeals the trial court’s dismissal of his “motion to correct judgment and sentence” filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because we conclude the trial court erred in finding it lacked jurisdiction to rule on Barrett’s motion, we reverse.

Barrett was charged by information with two counts of trafficking in hydrocodone. His mother posted a $200,000 cash appearance bond with the Pinellas County Sheriffs Office. Barrett’s bond was thereafter reduced and $180,000 was returned to Ms. Barrett. The sheriffs office retained $20,000 to secure Barrett’s appearance in court.

Barrett eventually pleaded guilty to the charged offenses and was sentenced on both counts to five years’ incarceration with a three-year minimum mandatory term. The court ordered Barrett to pay $150,000 in fines and court costs, reduced all of his outstanding financial obligations to liens, and directed the clerk of court to return the $20,000 cash appearance bond to Ms. Barrett. However, when Ms. Barrett attempted to collect the funds, the clerk’s office refused to return the money, informed her that the court lacked the authority to order that the bond be returned to her, and advised her that the $20,000 had been released to the State.

Barrett filed a “motion to correct judgment and sentence” asking the court to correct the judgment and sentence so that it would direct that the $20,000 bond be returned to Ms. Barrett. In his memorandum of law, Barrett invoked Florida Rule of Criminal Procedure 3.800(a) in support of his motion and argued that at a minimum, the court must correct the judgment and sentence to reflect the trial court’s oral pronouncement. Barrett also argued that additional relief was appropriate because the clerk had no authority to refuse to return the money as ordered by-the court. The trial court determined that it had no jurisdiction to rule on the merits of Barrett’s motion because his claim was not properly raised under rule 3.800(a). The trial court did, however, order that Barrett’s written judgment and sentence be corrected to reflect the court’s oral ruling canceling the cash bond and returning the funds to Ms. Barrett.

On appeal, Barrett argues that rule 3.800(a) is the proper vehicle to obtain the relief he seeks and that the trial court erred in dismissing his motion for lack of jurisdiction because the court had jurisdiction to enforce its order directing the clerk to return the $20,000. The State argues that Barrett’s motion was properly dismissed because the release of the bond is not part of his sentence and the alleged error is not apparent on the face of the record as is required under .rule 3.800(a). Although we agree that rule 3.800(a) was not the proper vehicle for Barrett to obtain the relief he sought, the trial court erred in dismissing Barrett’s motion for lack of jurisdiction.

Article V, section 2(a) of the Florida Constitution requires that no cause be dismissed because an improper remedy has been sought. Accordingly, the trial court should have considered whether Barrett had alleged sufficient facts to warrant relief and, if so, treated his motion as if the proper remedy had been sought. See Cav-erly v. State, 436 So.2d 191 (Fla. 2d DCA 1983) (holding that where the defendant’s petition requested the wrong remedy but alleged sufficient facts to warrant relief, the trial court should have treated the petition as if the correct remedy had been sought). Barrett alleges that the clerk’s office refused to obey the court’s order to refund the $20,000 to Ms. Barrett after unilaterally concluding that the court was not authorized to return the bond' money to her. The clerk is merely a ministerial officer of the court and has no authority to contest the validity of a court’s order .issued in the performance of its judicial function. State v. Almand, 75 So.2d 905 (Fla.1954); Corbin v. State, 324 So.2d 203 (Fla. 1st DCA 1975). Accordingly, we conclude that the facts Barrett alleged were sufficient to warrant relief and that the trial, court should have treated his motion as a petition for a writ of mandamus. We therefore reverse the order dismissing Barrett’s motion- to correct his judgment and sentence. On remand, the trial court is directed to treat Barrett’s motion as a petition for writ of mandamus directed to the clerk and resolve it on the merits.

Reversed and remanded with directions.

NORTHCUTT, C.J., and WHATLEY, J., Concur.


author: CANADY, Judge. SILBERMAN, Judge,

text:
    Mary Alice ESAW, Appellant, v. Albert Earnest ESAW, Appellee.
    No. 2D06-1163.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2007.

      Nicholas P. Sardelis, Jr. of Law Offices of Sardelis and Bowles, L.L.P., Sarasota, for Appellant.
    Laurie E. Baker of Baker & Paul, Bra-denton, for Appellee,

      . We note that in Mathieu v. Mathieu, 877 So.2d 740, 741 (Fla. 5th DCA 2004), the court stated “that a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court's attention in a motion for rehearing” and that "[i]n the usual case, we will treat the lack of adequate findings as an unpreserved error unless previously brought to the trial court’s attention.” See also Owens v. Owens, 32 Fla. L. Weekly D2095, - So:2d -, 2007 WL 2456208 (Fla. 1st DCA Aug. 31, 2007); Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001). But see Dorsett v. Dorsett, 902 So.2d 947, 950 n. 3 (Fla. 4th DCA 2005) (expressing disagreement with Mathieu and Broadfoot).

      Here, the wife did not file a motion for rehearing or demonstrate that she had otherwise brought the issue of the adequacy of findings to the attention of the trial court. In view of our determination that the absence of findings is not a basis for reversal under the circumstances presented here, we have not decided the preservation issue.

   CANADY, Judge.

Mary Alice Esaw, the wife, appeals a final judgment of dissolution of marriage. The wife seeks reversal of the judgment on the ground that the trial court’s findings were inadequate and on the ground that the judgment is fundamentally erroneous on its face. For the reasons expressed below, we reject both arguments for reversal and affirm the judgment.

I. Background

The Esaws were married in 1985 and had no children during their marriage. On November 10, 2004, the wife filed a petition for dissolution of marriage. The parties attempted mediation, but no agreement was reached. On January 20, 2006, a final hearing was held. There is no transcript of the hearing in the record, but the record contains a “COURT APPEARANCE RECORD” from January 20, 2006, prepared by the court’s clerk and indicating that the trial court ruled on the issues of equitable distribution, alimony, and attorneys’ fees. On February 16, 2006, a conference was held. There is no transcript of this conference in the record, but the record contains another “COURT APPEARANCE RECORD” from February 16, 2006, which indicates that corrections were made to valuations in regard to the marital property. It also states “FINAL JUDGMENT PREPARED BY [THE WIFE’S TRIAL ATTORNEY], CORRECTIONS MADE ON FINAL JUDGEMENT BY JUDGE DUNNIGAN.” On February 16, 2006, the trial court entered the final judgment of dissolution of marriage.

II. .■ The Claim of Inadequate . Factual Findings

The wife argues on appeal that the trial court erred in failing to make specific findings of fact supporting the alimony award and that the trial court erred in failing to value certain marital property when making the equitable distribution determination. She argues that these findings. are statutorily required and that therefore the trial court’s failure to include them is reversible error.

Section 61.08, Florida Statutes (2004), sets forth the factors for a trial court to consider in determining a proper award of alimony. “The statute requires the trial court to include findings of fact relative to the ... factors” set forth in the statute. Milo v. Milo, 718 So.2d 848, 344 (Fla. 2d DCA 1998); see § 61.08(1), Fla. Stat. “Failure to include findings of fact as required by section 61.08 is reversible error.” Farley v. Farley, 800 So.2d 710, 711 (Fla. 2d DCA 2001). The purpose of these findings “is to assist the appellate court in providing a meaningful review.” Milo, 718 So.2d at 344-45.

As for equitable distribution, section 61.075(3)(b) requires the trial court to make specific findings of fact regarding “[[Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset.” (Emphasis added.) “The final distribution of'marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence.” Guida v. Guido, 870 So.2d 222, 224 (Fla. 2d DCA 2004). “Failure to include the statutorily required findings of fact makes appellate review of the distribution scheme difficult, if not impossible, and requires reversal.” Id.

Here, the judgment does not contain any factual findings regarding the alimony factors. See § 61.08(2)(a)-(g). The judgment also omits findings concerning the value of several of the couple’s significant marital assets which were subject to equitable distribution. See § 61.075(3)(b).

The absence of findings is coupled here with the absence of a transcript of the hearing. The most salient impediment to meaningful review of the trial court’s decision is not the absence of findings, but the absence of a transcript. In Klette v. Klette, 785 So.2d 562 (Fla. 1st DCA 2001), the First District considered whether the lack of findings supporting an alimony award was reversible error where the appellant failed to provide a transcript of the hearing or an acceptable substitute. The court held that a harmless error analysis was mandated and that “[t]he lack of a transcript, or substitute, frustrate^] this requirement.” Id. at 564. Therefore, the court held “that appellant ... failed to demonstrate reversible error.” Id. (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)); see also Williams v. Williams, 923 So.2d 606, 608 (Fla. 2d DCA 2006) (citing Klette and recognizing that “[t]he failure to make the required findings may constitute harmless error when our review is not hampered by their absence”). But see Dorsett v. Dorsett, 902 So.2d 947, 950 (Fla. 4th DCA 2005) (holding that “[ejven when no trial transcript is provided to the reviewing court, [fjailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made” (internal citations omitted) (alterations in original)); Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) (same).

The reasoning of Klette is persuasive. It takes seriously the provision of section 59.041, Florida Statutes (2004), that “[n]o judgment shall be set aside or reversed ... for error as to any matter of ... procedure, unless” it is apparent “that the error complained of has resulted in a miscarriage of justice.” Under section 59.041, “[i]n a civil case, an error is reversible — that is, harmful error — [only] where ‘it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.’ ’’ Florida Institute for Neurologic Rehab., Inc. v. Marshall, 943 So.2d 976, 979 (Fla. 2d DCA 2006) (quoting Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979)). The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is “usually fatal” to the appellant’s claims. Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). Without such a record, it will ordinarily be impossible for the appellant to establish that an asserted error is harmful.

In Guida, where we reversed for insufficient findings, the court made a passing reference to the absence of a transcript and statement of the evidence. 870 So.2d at 223. The opinion in Guida does not, however, discuss the significance of the deficiencies in the record. There is no suggestion in Guida that the court considered the harmless error issue which provided the basis for the decision in Klette. Accordingly, Guida contains no holding on that issue. See State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930) (“[N]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.”).

We acknowledge that there are circumstances in which a claim of inadequate findings can lead to reversal even in the absence of a transcript or appropriate substitute. In particular, an award of attorney’s fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings. Giltex Coup. v. Diehl, 583 So.2d 734, 735-36 (Fla. 1st DCA 1991), held that even though a transcript and stipulated statement of the evidence were lacking, an order awarding attorney’s fees should be reversed “because the trial court’s order [was] fundamentally erroneous on its face for failure to make the express findings required by” Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). This court has followed the reasoning of Giltex. See Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So.2d 1063, 1065-66 (Fla. 2d DCA 2004); Bayer v. Global Renaissance Arts, Inc., 869 So.2d 1232, 1232 (Fla. 2d DCA 2004).

We have not; however, held that an order which lacks a finding required under section 61.08 or 61.075 is fundamentally erroneous simply by virtue of the technical deficiency in the trial court’s findings. There is no general rule that the lack of statutorily required findings constitutes fundamental error. In' the context of the admissibility of child hearsay statements, the supreme court has held that “the failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error.” State v. Townsend, 635 So.2d 949, 959 (Fla.1994). Furthermore, in the instant case the wife has not argued that the deficiencies in the trial court’s findings rendered the judgment fundamentally erroneous on its face.

Here, in the absence of a transcript or appropriate substitute, the wife is unable to demonstrate “that the error complained of has resulted in a miscarriage of justice.” § 59.041. “[T]he record brought forward by the [wife] is inadequate to demonstrate reversible error.” Applegate, 377 So.2d at 1152. Indeed, the wife has made no attempt to show how the inadequacy of the findings constitutes harmful error. Because the wife did not provide a transcript or appropriate substitute and did not demonstrate harmful error, we will not reverse the judgment on the basis of the wife’s claim that the findings are inadequate.

III. The Claim of Fundamental Error On the Face of the Judgment

The wife also argues that the trial court erred in concluding that the wife had the burden to prove that she was unable to work and in imputing income to the wife. She claims that the law provides that the party asserting that the other spouse is voluntarily unemployed has the burden of proof on the issue of imputation of income. The wife asserts that this portion of the final judgment is fundamentally erroneous on its face. See Hoirup v. Hoirup, 862 So.2d 780, 782 (Fla. 2d DCA 2003) (“[Wjhere a trial transcript or proper substitute does not appear in the record on appeal, the trial court’s order must be upheld unless the order is fundamentally erroneous on its face.”); see also Chirino v. Chirino, 710 So.2d 696, 697 (Fla. 2d DCA 1998) (stating that “the absence of a transcript does not preclude reversal where an error of law is apparent on the face of the judgment”). We. reject this argument.

In awarding alimony in its final judgment of dissolution of marriage, the trial court ruled that although the wife testified that she is physically unable to work, she failed to provide enough evidence that she is unable to be employed. The trial court imputed income to the wife in the amount of $1000 a month.

“[T]he two primary considerations in the award of permanent alimony are need and ability to pay. As to the need, the court must consider the standard of living enjoyed during the marriage and each party’s age, health, and earning ability.” O’Connor v. O’Connor, 782 So.2d 502, 503 (Fla. 2d DCA 2001) (emphasis added). Section 61.08(2)(g) specifically requires consideration of “[a]ll sources of income available to either party.” The trial court thus must consider the “ability [of the party seeking alimony] to contribute to her own support.” O’Connor, 782 So.2d at 504; see also Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999) (“As to the imputation of income to the [spouse seeking alimony], the amount of income a spouse [seeking alimony] may be able to earn is a factor the court should consider in determining an alimony award.” (citing § 61.08(2)(d), (g), Fla. Stat. (1997))).

Generally, a party seeking relief has the burden of establishing an entitlement to that relief. See Berg v. Bridle Path Homeowners Ass’n, 809 So.2d 32, 34 (Fla. 4th DCA 2002) (“It is well-settled in Florida law that the plaintiff is required to prove every material allegation of its complaint which is denied by the party defending against the claim.”). In accord with this general principle, a “litigant requesting ... alimony has the burden of proof on that issue.” Walter v. Walter, 442 So.2d 257, 259 (Fla. 5th DCA 1983), quashed on other grounds, 464 So.2d 538 (Fla.1985).

In proving ability to pay, a party requesting alimony has the burden to establish the income — including imputed income — available to the party from whom alimony is sought. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001) (holding that where wife who sought alimony “offered no competent, substantial evidence sufficient to support imputing income to the husband,” the trial court correctly refused to impute income to husband). Similarly, in proving need, a spouse requesting alimony has the burden of establishing the income available to the requesting spouse.

In support of her argument on this point, the wife relies on Andrews v. Andrews, 867 So.2d 476 (Fla. 5th DCA 2004), and Greene v. Greene, 895 So.2d 508 (Fla. 5th DCA 2005). Andrews states that “[t]he party asserting that the spouse is voluntarily unemployed or underemployed has the burden of proof.” 867 So.2d at 478 n. 2. Relying -on Andrews, Greene states that it is “contrary to current case law” for a trial judge to “placet ] the burden of proof’ on a spouse requesting alimony “to show she was not voluntarily unemployed or underemployed.” 895 So.2d at 512-13.

In both Andrews and Greene, the appellate court determined that the evidence did not support the trial court’s ruling concerning the amount of income available to the spouse requesting alimony. In both cases, the requesting spouse had presented evidence showing that the income available to the requesting spouse was less than the income determined to be available by the trial court. The Andrews and Greene decisions concluded that the spouse from whom alimony was sought had failed to present evidence sufficient to support the trial court’s determination concerning the imputation of income to the requesting spouse.

Andrews and Greene thus recognize that where substantial, competent evidence is adduced by the requesting spouse with respect to the income available to the requesting spouse, the spouse from whom alimony is sought then has the burden of adducing evidence to rebut the requesting spouse’s evidence on that issue. To the extent that Andrews and Greene suggest that the initial burden of proof with respect to the income available to a requesting spouse rests on the other spouse, we take a contrary view.

Here, it is apparent that the trial court considered the wife’s ability to work in relation to her claimed need for alimony. It is also apparent that the trial court determined that the wife presented insufficient evidence to support the conclusion that the wife was unable to work. Since there is no record of the evidentiary hearing, we do not know what evidence the husband adduced on this issue. Without the record of the evidentiary hearing, we cannot conclude that the trial court erred in determining that the wife did not establish her need. And there is nothing in the judgment which suggests the trial court made an error in its legal analysis. In this context, the reference in the judgment to the wife’s failure to provide sufficient evidence concerning her claimed inability to be employed does not render the judgment fundamentally erroneous on its face.

IV. Conclusion

Having determined (a) that the absence' of findings does not present a basis for reversal under the circumstances presented here and (b) that the judgment is not fundamentally erroneous on its face, we affirm the trial court’s final judgment of dissolution of marriage.

Affirmed.

FARNELL, DEE ANNA, Associate Judge, Concurs.

SILBERMAN, J., Concurs with opinion.

SILBERMAN, Judge,

Concurring.

I concur with the majority opinion and the observation that the absence of a transcript or a statement of the evidence is the most salient impediment to review of the final judgment. Although the judgment does not include detailed findings of fact, without an adequate record the wife cannot show that' the equitable distribution and alimony award are not supported by competent, substantial evidence.

Also, in footnote 1, the majority notes a possible issue as to whether the lack of adequate findings was properly preserved for review. Owens v. Owens, 32 Fla. L. Weekly D2095, — So.2d -, 2007 WL 2456208 (Fla. 1st DCA Aug. 31, 2007), Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004), and Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001), discuss the use of motions for rehearing to bring to the trial court’s attention its failure to make adequate findings, thereby preserving the error for appellate review. Dorsett v. Dorsett, 902 So.2d 947, 950 (Fla. 4th DCA 2005), reiterates that errors of law appearing on the face of an order may be reviewed notwithstanding the lack of a trial transcript. Dorsett also.states that reversal' is required when a court fails to make sufficient findings regarding the value of property and the identification of marital assets and debts. As to the latter statement concerning the failure to make sufficient findings, Dorsett cites Mathieu and Broadfoot as contrary authority. 902 So.2d at 950 n. 3.

In my view, because this court has not explicitly addressed the preservation question as discussed in Owens, Mathieu and Broadfoot, litigants should bring the lack of adequate findings to the trial court’s attention at the first available opportunity to try and avoid an appellate determination that the issue has not been properly preserved.


text:
    Levory W. HICKMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2388.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 2007.
    Levory Hickmon, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Archambault v. State, 781 So.2d 1194 (Fla. 5th DCA 2001).

PLEUS, ORFINGER and TORPY, JJ., concur.