text:
    Carlos LEDESMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2238.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Rehearing Denied July 13, 2007.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, and Carlos Ledesma, Okeechobee, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We grant the public defender’s Motion to Withdraw as counsel in this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We write, however, to address an error in the scoresheet that must be corrected. Because the error is harmless, resentenc-ing is not required.

Appellant committed an armed kidnapping and armed burglary in 1990 and was sentenced under the 1990 guidelines using a category 9 scoresheet listing armed kidnapping as the primary offense. Appellant was sentenced to 17 years in prison on the armed kidnapping followed by a consecutive term of 3 years probation for the armed robbery. Appellant was released from prison on the armed kidnapping sentence in 2004. He then violated probation by changing his residence without consent of his probation officer and failing to report to the probation office and file monthly reports as required.

Appellant admitted violating probation and accepted the court’s offer of 28 years in prison. The court rejected the state’s recommendation of 22 years in prison because the court found it incommensurate with appellant’s extensive criminal record and the gravity of the offenses appellant committed. Appellant was given credit for all time served in jail as well as all the time he previously served in prison on count I (about 13 or 14 years). See Tripp v. State, 622 So.2d 941 (Fla.1993). Later, the court reduced the sentence to 27 years in prison because the parties advised the court this was the maximum permitted by the 1990 guidelines.

In a motion to correct sentencing error, appellant argued that armed kidnapping was improperly scored as a life felony when in fact it was a first degree felony punishable by life. See § 787.01(2), Fla. Stat. (1989). This claim was properly denied because the armed kidnapping in this case was correctly enhanced to a life felony based on appellant’s use of a weapon during the offense. § 775.087(l)(a), Fla. Stat. (1989).

The same motion also argued that 38 points had been improperly scored under “Section III.B. SAME CATEGORY PRIORS (categories 3, 5, and 6 only).” Appellant argued that armed kidnapping was a category 9 offense to which this section did not apply. The state argued in response that armed robbery (to which the violation of probation related) was a category 3 offense and that this section applied to appellant’s category 5 and 6 prior offenses. The court denied the motion without addressing this issue.

Because no new offenses were before the court for sentencing, appellant had to be sentenced following revocation of probation with the same scoresheet that was used at his original sentencing. Holloman v. State, 600 So.2d 522 (Fla. 5th DCA 1992) (and cases cited therein).

Florida Rule of Criminal Procedure 3.701(d)(15) sets out the applicability of “Section III.B.” which resulted in the 38 additional points for prior record that were scored in this case. The rule explains that category 3, 5, and 6 offenses contain an additional factor to be scored as “prior record” for “prior convictions for similar offense.” Under the rule, “[sjcoring is limited to prior felony convictions included within the category.” Fla. R.Crim. P. 3.701(d)(15).

Here, a category 9 scoresheet was employed, and “Section III.B.” does not apply. This should have been obvious because the category 9 scoring form does not contain a formula for calculating a total for this section. Fla. R.Crim. P. 3.988(i). The face of the scoresheet also indicates that this section is for category 3, 5, and 6 offenses only. Appellant was being sentenced under the more severe category 9 scoresheet, and it was improper to add points for a factor that applies only on category 3, 5, and 6 scoresheets. Further, even if this factor applied, because the violation of probation related to the category 3 armed robbery, the prior offenses relied on by the state were category 5 and 6 offenses not category 3 offenses. The rule provides that scoring is limited to prior offenses “included within the category.” Fla. R.Crim. P. 3.701(d)(15). See also Hembree v. State, 519 So.2d 1138 (Fla. 2d DCA 1988); Wilson v. State, 514 So.2d 1127 (Fla. 1st DCA 1987); Bordeaux v. State, 471 So.2d 1353 (Fla. 1st DCA 1985) (applying this rule in the same fashion).

Removal of these 38 points from the scoresheet would lower the permissible sentencing range from 12-27 years to 9-22 years. Because the sentence was imposed after revocation of probation, however, the court could have imposed sentence using the next higher guidelines cell without stating reasons. Fla. R.Crim. P. 3.701(d)(14). Thus, the court could have imposed the 27-year sentence in this case when the automatic one-cell bump up is considered, and the sentence is not illegal. See Pire v. State, 575 So.2d 299 (Fla. 4th DCA 1991).

The record in this case is abundantly clear that the court would have imposed the same sentence if the scoresheet error had not occurred. State v. Anderson, 905 So.2d 111 (Fla.2005). The court rejected the state’s recommendation of 22 years and extended the offer of 28 years because of the seriousness of the offenses and because of appellant’s record. The court reduced the sentence to 27 years only because it was informed that this was the maximum permitted under the guidelines. There is no question that the court would have employed the one-cell bump up and imposed the same sentence absent the error. The scoresheet error is, therefore, harmless.

On remand, the trial court is directed to correct the scoresheet, but the appellant need not be resentenced.

Affirmed and remanded with directions.

STEVENSON, C.J., WARNER and FARMER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WASHINGTON CORRECTIONAL INSTITUTION, and York STB, Appellants, v. Joan E. GROSS, Appellee.
    No. 1D06-124.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Rehearing Denied June 28, 2007.
    Colleen Cleary Ortiz of Bozeman, Jenkins & Matthews, P.A., Pensacola, for Appellants.

      T. Rhett Smith and Teresa E. Liles of T. Rhett Smith, P.A., Pensacola, for Appellee.
   PER CURIAM.

Appellants, Washington Correctional Institution and York STB (employer/carrier and servicing agent), appeal an order of the JCC awarding Claimant, Joan Gross, a number of medical benefits. Appellants raise a number of issues on appeal, however, we find only one has merit. Because we conclude the JCC’s finding that the heating pad and oxygen supplementation were medically necessary to treat the appellant’s condition is not supported by competent, substantial evidence, we reverse the order to the extent it awards those benefits. We otherwise affirm the order.

“The JCC should only award those medical benefits which are determined to be a medical necessity.” Polk County Bd. of Comm’rs v. Varnado, 576 So.2d 833 (Fla. 1st DCA 1991). The standard of review in a workers’ compensation case as to the medical necessity of awarded benefits is whether competent, substantial evidence supports the JCC’s ruling. See CEM Enters., Inc. v. Thompson, 859 So.2d 1247 (Fla. 1st DCA 2003). In the instant case there was no'testimony in the record indicating that the heating pad was medically necessary to treat Claimant’s conditions. Additionally, the Claimant’s treating physician testified that oxygen supplementation would not be helpful or effective in treating her conditions. Thus, competent, substantial evidence does not exist to support the JCC’s finding that the heating pad and oxygen supplementation were medically necessary to treat Claimant’s conditions. Accordingly, we reverse the order to the extent it directs Appellants to reimburse Claimant for the heating pad, nasal cannula and oxygen rental. In all other respects the order is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

BROWNING, C.J., BENTON and LEWIS, JJ., concur.


text:
    Johnnie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1919.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.
    Rehearing Denied June 27, 2007.
    Daniel D. Mazar, of Mead Mazar, Winter Park, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Having carefully considered the challenges raised by the defendant to his conviction and sentence for possession of cannabis with intent to sell or deliver, we find no reversible error. We write to point out that even though the detention of the defendant may have been illegal, the inevitable discovery doctrine applies and the cannabis found pursuant to the drug dog alert on his inoperative motor vehicle would have inevitably been discovered in the course of the otherwise legitimate investigation. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Moody v. State, 842 So.2d 754 (Fla.2003); Hatcher v. State, 834 So.2d 314 (Fla. 5th DCA 2003); State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990).

AFFIRMED.

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


author: LAWSON, J.

text:
    Noah REDDING, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2894.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.
    Rehearing Denied June 26, 2007.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Noah Redding appeals from his convictions and sentences on charges of aggravated manslaughter of a child, and child abuse. Both relate to the death of his three-month-old daughter. Redding’s sole argument on appeal is that the trial court erred in denying his motions for judgment of acquittal. We agree with the trial court that the State presented sufficient evidence to support the convictions, and affirm.

At trial, it was undisputed that Redding was alone with his daughter on March 28, 2005, when she suffered severe head injuries that caused her death on that day. Although Redding made contradictory statements to police, he ultimately claimed that the child accidentally fell from his arms as he bent down to pick up a television remote. According to Redding, his daughter’s head struck the box spring of a bed, and then hit a carpeted floor.

According to the State’s medical experts, however, the child’s injuries could not have resulted from an accident inside the apartment. The child had a significant skull fracture, extensive subdural and sub-arachnoid hemorrhaging, diffuse brain swelling, and axonal injuries in the low brain stem and high spinal cord. The medical examiner testified that the kind of blunt-force trauma suffered by this infant could not have been caused accidentally “[ujnless the child was [accidentally] dropped from the second story” of a building. She testified that a child who accidentally fell from the shoulder-height of a person who was 6'2", and hit a box spring and carpeted floor, would not have sustained the type of injuries she observed on this child during the autopsy. She concluded that the child’s death “definitely” resulted from “an inflicted injury.” The other medical experts who testified for the State rendered similar opinions, ruling out accidental injury as the cause of death. Because opinions of the State’s medical experts, if believed by the jury, would exclude every reasonable hypothesis except that of guilt, Redding’s motions for judgment of acquittal were properly denied. Orme v. State, 677 So.2d 258, 262 (Fla.1996).

In his brief, Redding essentially argues that the opinion of his medical expert (who testified that the child’s death could have been accidental) is more credible than the opinions rendered by the State’s experts, because his expert better “accounts for” all of the medical evidence. However, weighing the credibility of competing expert opinions is the quintessential jury function, and is neither the role of a trial court considering a motion for judgment of acquittal nor of an appellate court reviewing the trial judge’s decision on that motion. As our supreme court explained in Orme, a court considering a motion for judgment of acquittal must view the evidence “in the light most favorable to the state.” Id. at 262 (quoting State v. Law, 559 So.2d 187, 188-89 (Fla.1989)). Further:

The state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Id. (quoting State v. Allen, 335 So.2d 823, 826 (Fla.1976)) (emphasis added).

Because the State presented competent evidence inconsistent with Redding’s theory that his daughter died from accidental injuries, the case was properly submitted to the jury.

AFFIRMED.

PLEUS, C.J., concurs.

GRIFFIN, J., concurs in result only, without opinion.


text:
    Donald G. FAIR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2209.
    District Court of Appeal of Florida, First District.
    May 18, 2007.
    Rehearing Denied June 22, 2007.
    Donald G. Fair, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Michele LOPES, Michael J. Gigante, and Matthew Gigante, Appellants, v. Gerard SAPPINGTON, Appellee.
    No. 4D06-1077.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied July 16, 2007.

      Peter N. Price of Peter N. Price, P.A., Hollywood, for appellants.
    Suzanne M. McLean of Webber, Hinden, McLean & Arbeiter, P.A., Pembroke Pines, for appellee.
   PER CURIAM.

Appellants, Michele Lopes, Michael J. Gigante, and Matthew Gigante (collectively “the Gigantes”), appeal a final judgment entered in favor of appellee, Gerald Sap-pington, on Sappington’s motion for summary judgment. The Gigantes simultaneously appeal the denial of their motion for rehearing of Sappington’s motion for summary judgment. We reverse.

The Gigantes allegedly entered into a contract for the purchase of real property owned by Sappington. Before the date set for closing in the contract, the Gigantes allegedly notified Sappington of an unsatisfied mortgage on the property. On August 26, 2004, after the date set for closing passed, the Gigantes’ attorney sent Sap-pington’s attorney a letter stating:

The closing was to be on or before August 17, 2004, my clients were ready to close, their financing was complete and all deposits were made. Apparently your client refused to close because of an unsatisfied lien on the property by California Federal Bank Mortgage in the amount of approximately $52,000. The contract specifically provides that the property is to be conveyed free and clear of encumbrances, this is the responsibility of the Seller, his refusal to deliver clear title constitutes a default under the contract.
The contract provides that in the event of a title defect the Seller shall be afforded 30 days to cure such defect, however our position is that the unsatisfied lien is not a title defect but rather it is the Seller’s obligation to satisfy the mortgage and provide clear title, the failure to do so constitutes a breach. A remedy provided in the contract for a breach is specific performance, which we intend to pursue.

On September 10, 2004, the Gigantes filed a two-count complaint against Sap-pington seeking specific performance (Count I) and damages for breach of contract (Count II). The Gigantes also filed a notice of lis pendens on the property. In Count I, the Gigantes alleged that Sap-pington failed to close as required by the contract. They invoked paragraph 32 of the contract, which states in pertinent part: “If Seller fails to perform any of the covenants of this Contract, all money paid or deposited by Buyer pursuant to this Contract shall be returned to Buyer upon demand, or Buyer shall have the right of specific performance.” The Gigantes voluntarily dismissed Count II.

Sappington filed a motion for summary judgment raising two grounds. First, Sappington argued that the contract does not entitle, and in fact precludes, the Gi-gantes’ requested remedy of specific performance, citing Taines v. Berenson, 659 So.2d 1276 (Fla. 4th DCA 1995), and paragraph 10.3 of the contract. Paragraph 10.3 entitled “TITLE DEFECTS” states:

Buyer shall have ten (10) days from the date of receiving evidence of title to examine same. If title is found to be defective, Buyer shall within said period, notify Seller in writing specifying the defects. If such defects render the title unmarketable, Seller shall have thirty (30) days from the receipt of such notice to cure the defects, and if after said period Seller shall not have cured the defects, Buyer shall have the option of (1) accepting title as it then is; or (2) terminating this Contract by delivery of written notice to Seller or his Authorized Representative, and deposits shall be returned to Buyer and all parties shall be released from all further obligations herein.

Second, Sappington contended no contract exists due to the Gigantes’ failure to comply with the contract’s delivery provision. Specifically, Sappington argued:

If [the Gigantes] have not complied with the conditions precedent required to be performed by [the Gigantes], including but not limited to, delivery of the Contract to [Sappington], closing by August 17, 2004, and delivery of a writing specifying the defects within ten (10) days of [the Gigantes’] receipt of evidence of title, [the Gigantes] cannot maintain a claim for specific performance against [Sappington].

(emphasis in original).

The trial court granted Sappington’s motion for summary judgment and issued a final judgment in favor of Sappington. The final judgment states in pertinent part:

The Court finds that the pleadings, affidavits, and other documents on file show that there is no genuine issue as to any material fact and that Defendant, GERALD SAPPINGTON, is entitled to a judgment as a matter of law.
The Court finds that the case of Taines v. Berenson, 659 So.2d 1276 (Fla. 4th DCA 1995) is on point and controlling in this action. In Taines v. Beren-son, the court held that the buyer’s remedies were limited by the terms of the contract to accepting title “as is” or demanding a refund of monies paid. 659 So.2d at 1277. The court specifically rejects the buyer’s argument that the seller’s failure to cure the defect should be viewed as a default. Id. at 1278. Therefore, a buyer’s remedy against a seller for failure to cure a title defect are [sic] limited to those remedies specifically provided for in that provision of the contract which governs title defects.
Likewise, in the case at bar, this Court finds that the Contract at issue does not provide [the Gigantes] with the remedy of specific performance. The unsatisfied mortgage is a defect in the title. As in Taines v. Berenson, the Contract at issue provides limited remedies of accepting title “as is” or terminating the Contract by written notice to [Sappington] and a return of the deposit, neither of which were exercised by [the Gigantes]. Additionally, as in Taines v. Berenson, [the Gigantes] elected to file suit prior to the expiration of the cure period, which act, separate and apart from above, renders the default provision unenforceable.

The trial court denied the Gigantes’ motion for rehearing.

The Gigantes argue the trial court erred in granting Sappington’s motion for summary judgment. We agree. In Fini v. Glascoe, 936 So.2d 52 (Fla. 4th DCA 2006), this Court recognized:

The standard of review of an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004). Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996).

Fini, 936 So.2d at 54.

There exist genuine issues of material fact as to whether Sappington breached the contract, which would render paragraph 32 applicable, or whether the unsatisfied mortgage constituted the type of title defect contemplated by paragraph 10.3. Thus, we reverse and remand for the trial court to vacate the final judgment in favor of Sappington and conduct further proceedings consistent with this opinion.

Reversed and Remanded with Directions.

WARNER, KLEIN and HAZOURI, JJ., concur.

      . The mortgage' in question appears to have been satisfied on December 23, 1993, but apparently the satisfaction had not been recorded.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Paul DUBIEL, Appellee.
    No. 4D06-1605.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied July 12, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Emily Ross-Book'er, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals an order granting the defendant’s motion to suppress the results of a blood test in connection with a charge of DUI causing injury to person or property. In its order, the court certified a question of great public importance:

When requesting a voluntary blood sample from a motorist suspected of driving under the influence, whether law enforcement must first read Florida’s implied consent warning and then further advise the suspect that said warnings are inapplicable?

We rephrase the question as follows:

Does the reasoning of State v. Iaco, 906 So.2d 1151 (Fla. 4th DCA 2005), which holds that failure to advise of the consequences of refusal to take a breathalyzer test does not warrant suppression of the tests in a criminal prosecution, apply to the failure to advise of the consequences of refusal to permit a blood test administered under section 316.1932(l)(c)?

As so phrased, we answer the question in the affirmative.

A law enforcement officer arrived at the Delray Community Hospital to perform a DUI investigation of appellee, Paul Dubiel, who was a patient and had been involved in an accident. The officer read Dubiel his Miranda rights and then asked Dubiel whether he would give a blood sample. Dubiel consented to the sample. The officer conceded that he did not advise him of the consequences of his failure to consent as explained in section 316.1932(l)(e). Du-biel was later charged with driving under the influence causing injury to person or property.

Dubiel moved to suppress the results of the blood drawn from him on various grounds. At the hearing, the sole issue presented to the court involved whether the results should be suppressed for failure to inform Dubiel of the consequences of a refusal to consent, as required by the statute. The court granted the motion to suppress, relying on Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988). While the state argued that the court should apply Iaco, the court declined to do so, because Iaco involved a breathalyzer test rather than the more intrusive blood draw. However, it agreed to certify the question to this court.

Iaco involved the construction of section 316.1932(l)(a), which sets forth the procedure for requesting a breath test incident to an arrest:

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

In Iaco, just as in this case, the officer did not read this portion of the statute and advise the arrested person of the consequences of refusal to consent to the breath test. We relied on our prior opinions in State v. Gunn, 408 So.2d 647 (Fla. 4th DCA 1981), and Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983), and held that the statute set forth the penalties to be applied if the driver refused to consent. We said in Gunn, “We find no legislative intent to impose a further sanction on the state by excluding as evidence the results of a chemical test administered to a driver ... merely because of his not being informed, prior to testing, of the consequences should testing be refused.” Id. at 649. Accord Iaco; Pardo. See also State v. Young, 483 So.2d 31, 34 (Fla. 5th DCA 1985) (“Even if no warning is given at all, the results of a consensual breath test are admissible in evidence at defendant’s trial.”).

The issue presented in this case is whether the same result obtains when an officer fails to inform of the consequences of refusal to undergo a blood test, rather than a breath test. Section 316.1932(l)(c) applies to blood tests. The language of the statute is nearly identical to that of section 316.1932(l)(a). Section (l)(c) provides:

Any person who is capable of refusal shall be told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of the person has been suspended previously as a result of a refusal to submit to such a test or tests, and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. The refusal to submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any criminal proceeding.

Where the same words or phrases are used in two statutes, we may assume that the legislature intended them to mean the same thing. See Goldstein v. Acme Concrete Corp., 103 So.2d 202, 204 (Fla.1958). Both statutes require the same penalty for refusal to submit to either test, and neither indicates a legislative intent to impose any greater consequences for failure to instruct on the consequences of refusal. Therefore, just as in Iaco, Gunn, and Par-do, we find that failing to advise of the consequences of refusal to allow a blood test does not warrant suppression of the results in a criminal proceeding.

The trial court relied on Chu v. State, 521 So.2d 330 (Fla. 4th DCA 1988), in granting the motion to suppress. Chu is distinguishable. The issue addressed in Chu involved a blood test administered outside of a hospital or other medical facility. Our court held that the legislature intended to provide for the use of breath and urine tests, except under circumstances described in sections 316.1932(l)(c) and 316.1933(1). Under those sections, blood tests may be requested in a hospital or other medical facility. Where those conditions do not exist, the legislature did not intend to authorize law enforcement to request a blood test. Despite this, our court refused to exclude a blood test requested outside a medical facility if that test was the result of voluntary consent with full knowledge that the implied consent laws required submission only to a breath or urine test and that the blood test was being offered as an alternative. Thus, the two cases are factually different, as Dubiel was in the hospital when the blood was requested. The blood test in Chu was not legislatively authorized, whereas the blood test here was.

We therefore answer the certified question in the affirmative, quash the order suppressing the blood test results, and remand this case to the county court for further proceedings.

GUNTHER and FARMER, JJ„ concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, INC., Petitioner, v. SOUTH MIAMI HEALTH CENTER, INC., a/a/o Fernando Jimenez, Respondent.
    No. 3D06-3189.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Fowler White Burnett and June G. Hoffman, Miami, for petitioner.
    George A. David, for respondent.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Upon consideration of the petition filed by United Automobile Insurance Company, Inc., certiorari is granted and the order dismissing the appeal is quashed. The appellate division of the circuit court is directed to reinstate the appeal and consider it on the merits. United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004)(en banc).

Certiorari granted.


author: ROTHENBERG, Judge.

text:
    Alex BEROES, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, on behalf of Mercedes PALACIOS, Appellee.
    No. 3D05-2150.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.

      Bofill & Vilar and Jose C. Bofill, Miami, for appellant.
    Bill McCollum, Attorney General, Orlando, and William H. Branch, Assistant Attorney General, Tallahassee, for appellee.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The former husband, Alex Beroes, appeals from a post-dissolution order awarding ongoing and retroactive child support to the former wife, Mercedes Palacios. We reverse and remand for an evidentiary hearing.

The former husband and the former wife, Mercedes Palacios, married in 1992 in Venezuela, and are the parents of a minor child born in 1992. In 2000, the parties, who were living in Miami at the time, separated and the former wife returned to Venezuela with their child.

In May 2000, the former husband, who had been living in Miami-Dade County for at least six months, filed a petition for dissolution of marriage alleging, in part, that the former wife should be designated the primary residential parent of the minor child, the former wife was in need of child support, and he had the ability to pay child support. The former wife was served by publication and, after the former husband filed an affidavit of diligent search, a default was entered against the former wife. In August 2000, a final judgment of dissolution of marriage (“Final Judgment”) was entered, which provides, in part, as follows:

2. The Court shall retain jurisdiction of the parties hereto and the subject matter hereof.
⅜ — The—parties—shall -be — awarded shared'parental responsibility of the-nai-nor child -with the primary residence being with the-Respondent
4 — The Court shaH-retain jurisdiction over the issue-of child support, custody and visitatiom-since the present whereabouts of the Respondent are- unknown at this time.-

Paragraphs three and four of the Final Judgment were crossed out and initialed by Judge Philip Cook.

In early 2002, the Department of Revenue (“the Department”), on behalf of the former wife, filed a Supplemental Petition for Modification of Final Judgment (“Supplemental Petition”) in the divorce action, alleging that “[ajlthough no child support was ordered in said Final Judgment, the Court retains jurisdiction of this cause for the entry of such future orders concerning child support as circumstances might require,” and requesting that the trial court impose ongoing and retroactive child support.

Thereafter, the former husband moved to dismiss the former wife’s Supplemental Petition, arguing that the trial court lacked subject matter jurisdiction to determine or establish child support because this matter was not determined in the Final Judgment, and that Judge Cook, by crossing out paragraph four of the Final Judgment, did not retain jurisdiction over the issue of child support.

In January 2003, the former husband’s motion to dismiss was heard by a hearing officer. The hearing officer’s recommended order provides that Judge Cook “did not permit the reservation of jurisdiction on issues of visitation, shared parental responsibility, custody and child support,” and therefore, the motion to dismiss should be granted “without prejudice should the Department of Revenue wish to file an initial Petition for Support.” Thereafter, Judge Arthur H. Taylor ratified the hearing officer’s recommended order.

The Department, however, filed a Motion to Vacate Judge Taylor’s order, and on June 2, 2003, Judge Taylor entered an order granting the Department’s motion to vacate, finding that based upon paragraph two of the Final Judgment, the trial court had jurisdiction to address the issue of child support.

The former wife’s Supplemental Petition was heard by a hearing officer in October 2004. The former husband and former wife did not attend the hearing, and no testimony was heard. The hearing officer, however, accepted from the Department a document from the Department of Labor regarding the former husband’s current earnings.

The hearing officer entered a recommended order on the former wife’s Supplemental Petition, finding, in part, that the former husband “failed to comply with Florida’s discovery rule 12.285, therefore, as a sanction, income is imputed to the [former husband] based on information from the Department of Labor.” The hearing officer recommended that the former wife be awarded ongoing and retroactive child support. Judge Taylor entered an order ratifying the hearing officer’s recommended order, and he denied the former husband’s motion for rehearing.

The first issue raised in this appeal is whether the trial court possessed subject matter jurisdiction to award child support to the former wife. While the former husband asserts that the trial court lacked subject matter jurisdiction, and the former wife takes the contrary position, both parties, while recognizing our holdings in Cruz v. Domenech and Birnbaum v. Birnbaum, agree that our standard of review in this case is de novo. We agree. The trial court’s ruling regarding subject matter jurisdiction did not involve the resolution of any question of fact. The issue was decided as a matter of law. We, therefore, conclude that the trial court’s ruling regarding subject matter jurisdiction in this instance must be reviewed by this court de novo. See Aravena v. Miami-Dade County, 928 So.2d 1163, 1166 (Fla.2006)(holding that where the trial court decides an “issue as a matter of law based on the undisputed facts,” the standard of review is de novo).

It is undisputed that when the trial court dissolved the marriage in 2000, it had subject matter jurisdiction over the action: the former husband satisfied the residency requirements and constructive service was made upon the former wife by publication. See Montano v. Montano, 520 So.2d 52, 53 (Fla. 3d DCA 1988)(holding that “[w]here the former wife resided in Florida for six months prior to filing the petition for dissolution, and the Guatemalan husband was properly served by constructive notice, the trial court properly exercised in rem jurisdiction to dissolve the valid Guatemalan marriage”).

While constructive notice was sufficient to dissolve the parties’ marriage, personal jurisdiction is generally required before a court may lawfully order payment of alimony, child support, or costs. Montano, 520 So.2d at 53; see also Davis v. Dieujuste, 496 So.2d 806, 808 (Fla.1986)(recognizing the “divisible divorce” concept, with one aspect relating to marital status and the other aspect to the property rights and obligations of the parties). As explained in Davis,

The concept of “divisible divorce” as adopted in Pawley[] recognizes that a dissolution proceeding has two separable aspects, that which relates to the marital res and that which relates to the property rights and obligations of the parties. While constructive service is sufficient for an adjudication of the former, personal jurisdiction is generally required for a determination of the latter.

Davis, 496 So.2d at 808.

Thus, the trial court in 2000 properly recognized that, while it had subject matter jurisdiction over the marriage and could properly dissolve the marital relationship, it lacked personal jurisdiction over the former wife and, therefore, it could not resolve the property rights nor the obligations of the parties, such as child support and alimony. See Orbe v. Orbe, 651 So.2d 1295, 1297 (Fla. 5th DCA 1995)(holding that in such cases, the court can grant the dissolution of the marriage without addressing the property rights and obligations of the parties).

The issues before this court are (1) whether under the circumstances in this case, where a “divisible divorce” was granted without addressing the issue of child support, must the trial court retain jurisdiction over this matter in order to subsequently address it; and (2) whether the trial court divested itself of subject matter jurisdiction over the issue of child support based on its striking of paragraphs three and four of the Final Judgment.

Our review of the case law leads us to the conclusion that providing for the support of the minor children of the parties in a dissolution proceeding, where there is need therefor, is an essential component of the proceeding. Therefore, reservation of jurisdiction to address and adjudicate child support is not required. See Kirk v. Kirk, 230 So.2d 694 (Fla. 3d DCA 1970).

In Kirk, the parties’ divorce decree was entered in October 1960, but the decree did not contain a provision regarding child support for the parties’ two minor children. Approximately nine years later, the former wife filed a petition in the divorce action requesting that the former husband be ordered to pay child support. The trial court granted the wife’s petition. In affirming the child support award, this court stated:

Providing for support of minor children of the parties to a divorce suit, where there is a need therefor, is an essential part of the suit or proceeding. This was not done in the present case at the time of the final hearing and decree. While the reservation of jurisdiction in the decree was not essential in order for the court to have jurisdiction thereafter to make orders necessary for the care and support of the children, in this case jurisdiction was expressly reserved in the decree in a form sufficient to authorize the court to so proceed later.

Id. at 696 (emphasis added).

We, however, need not determine whether reservation of jurisdiction was required, because in the instant case, the trial court expressly reserved jurisdiction by inserting paragraph two into its Final Judgment, which provides, “The Court shall retain jurisdiction of the parties hereto and the subject matter hereof.” As the trial court expressly reserved jurisdiction over the parties and the subject matter of the dissolution proceedings, we find that the trial court did not divest itself of subject matter jurisdiction to determine issues relating to child support, custody, or visitation by striking through paragraphs three and four of the Final Judgment.

Although we conclude that the trial court does possess jurisdiction to award child support to the former wife, we reverse the child support award imposed by the trial court and remand for an evi-dentiary hearing because (1) the trial court’s award was levied as a sanction against the former husband without affording the former husband due process; (2) the sole evidence relied upon in awarding and setting the amount of child support was unsworn hearsay; and (3) it was improper to grant retroactive child support to May 24, 2000, which is two years prior to the filing of the former wife’s Supplemental Petition seeking child support. Our conclusion that the child support award must be reversed and remanded for an evidentiary hearing is supported by the Department’s proper confession of error regarding this issue.

Affirmed in part, reversed in part, and remanded.

      . Cruz v. Domenech, 905 So.2d 938 (Fla. 3d DCA 2005)(holding that the trial court's determination regarding whether the pleadings properly invoke the trial court's subject matter jurisdiction, is reviewed using the abuse of discretion standard).

      . Birnbaum v. Birnbaum, 615 So.2d 241, 242 (Fla. 3d DCA 1993)("[T]he trial court did not abuse its discretion or authority in concluding it was vested with subject matter jurisdiction to proceed on the issue of custody.”).

        .Pawley v. Pawley, 46 So.2d 464 (Fla.), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950).


author: CORTIÑAS, Judge.

text:
    Jose R. GONZALEZ, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 3D06-1477.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Roy D. Wasson, Miami, for appellant.
    Jennifer A. Tschetter, Assistant General Counsel, Department of Business and Professional Regulation, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

The Appellant, Jose Gonzalez, seeks review of a final order from the Department of Business and Professional Regulation, Construction Industry Licensing Board, revoking his air conditioning contractor’s license. We affirm.

In August 2004, a default judgment in the amount of $17,973.49 was entered against the Appellant for failure to pay for materials and supplies in connection with his practice of air conditioning contracting. Subsequently, in August 2005, the Construction Industry Licensing Board (“Board”) filed an administrative complaint against the Appellant, pursuant to section 489.129(l)(q), Florida Statutes (2005), for failure to satisfy the judgment. In response, the Appellant filed an Election of Rights Form requesting a formal hearing and alleging the existence of disputed material facts. However, the Board concluded that there were no material facts in dispute and, thus, denied the Appellant’s request for a formal hearing.

Thereafter, the Board conducted an informal hearing on the Appellant’s case. At the hearing, the prosecutor presented evidence that the Appellant had four prior section 489.129 violations over a twenty-year span, including violations involving fraud, deceit, or untrue misrepresentations, and assisting in unlicensed activity. The Appellant presented evidence that, on the day before the hearing, he satisfied the judgment at issue. At the conclusion of the hearing, the Board agreed to fine the Appellant $5,258.35 and revoke his license.

In its final order, the Board erroneously stated that the Appellant failed to return an Election of Rights Form and, therefore, waived his right to a formal hearing pursuant to section 120.57(1), Florida Statutes (2005). Although the Board erred in that respect, their findings are affirmed as there were no material facts in dispute requiring the Board to conduct a formal hearing. See Schafer v. Dep't of Bus. & Prof'l Regulation, 844 So.2d 757, 758 (Fla. 1st DCA 2003)(finding that the Board’s erroneous statement m its final order that the appellant requested an informal, rather than a formal hearing, was harmless because the absence of a disputed material fact allowed the Board to proceed informally).

“When material facts are not in dispute, an agency need not refer a matter to the Department of Administrative Hearings for a formal hearing, even if such a hearing is requested by a party. It may, instead, proceed informally.” Id. (citing Nicolitz v. Bd. of Opticianry, 609 So.2d 92, 93-94 (Fla. 1st DCA 1992)). Here, the Appellant was charged with violating section 489.129(l)(q), which authorizes the Board to revoke a license when the licensee “fail[s] to satisfy within a reasonable time, the terms of a civil judgment obtained against the licensee, or the business organization qualified by the licensee, relating to the practice of the licensee’s profession.” The language “a reasonable time” is defined in rule 61G4-17.001(l)(q) of the Florida Administrative Code (2005), as “ninety (90) days following the entry of a civil judgment that is not appealed.” The undisputed facts show that the Appellant never denied that a civil judgment had been entered against him, that the Appellant paid the judgment on the day before the hearing, which was nearly nine months after it was entered, and that the outstanding judgment related to his profession. Therefore, even if the Appellant requested a formal hearing, the Board was within its rights to proceed informally.

Affirmed.

      . We find no merit in the Appellant’s contention that license revocation was an excessively harsh punishment. Given the circumstances of this case, license revocation was within the permissible range of penalties for a violation of section 489.129(l)(q). See Fla. Admin. Code R. 61G4-17.001(l)(q)(2005).

      . On appeal, counsel for the Board agrees that the Appellant filed an Election of Rights Form requesting a formal hearing and alleging the existence of disputed facts.


text:
    Charles MITCHELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4580.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Rehearing Denied July 13, 2007.

      Roy Black and Christine M. Ng of Black, Srebnick, Kornspan & Stumpf, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Charles Mitchell appeals his convictions for trafficking in cocaine and trafficking in marijuana. He claims that the court erred in refusing to give his special jury instruction on constructive possession of cocaine which more accurately stated the law to be applied on the facts of this case. We agree that the special jury instruction should have been given instead of the standard instruction which was misleading under these facts. We therefore reverse.

Palm Beach County Sheriffs deputies responded to a Lake Worth residence after receiving a 911 hang-up call. Appellant Mitchell answered their knock. The deputies asked Mitchell to exit the residence. When one of the deputies heard a female crying, he entered the apartment to check on her safety. As he passed through the home to find the female, Ms. Salazar, he observed in plain view numerous small Ziploc bags which contained suspected marijuana. He described them as looking as though they had been thrown on the floor during some sort of struggle.

While one deputy spoke to Salazar in the kitchen, another cleared the rooms of the house and then discovered more contraband. In an open closet he viewed a bag of cocaine, a large bag of marijuana, an electronic scale, and smaller individually-packaged baggies of marijuana. After these drugs were found, the deputies handcuffed Mitchell, who was still outside the residence and had not re-entered the house. The officer placed him in the back of a patrol car. No drugs were found on Mitchell.

Mitchell did not make any statements to police officers. However, Salazar did talk. She told the officers that the baggies of marijuana on the floor belonged to Mitchell. She denied knowledge of the other drugs in the house. She also told the deputy that Mitchell lived at the home where she would periodically stay the night with him.

The deputies secured a search warrant that day and found more drugs in the home. They found drugs in every room except the bathroom. In all, they found in excess of twenty-five pounds of marijuana and over 400 grams of cocaine. They also found $29,000 in cash.

In the main bedroom they found male clothing and one set of female clothing. In another bedroom they found children’s furniture and toys. No evidence linked these to Mitchell, except a deputy testified that the clothing would have fit a person about the size of Mitchell. The deputies found plane tickets in Mitchell’s name, and they observed pictures of Mitchell with other people throughout the residence. They also found a court event form with Mitchell’s name on it next to a digital scale and razor blade. Testing revealed no usable fingerprints on any of the contraband.

Mitchell’s van was parked outside the home, and the deputies searched the van but found no drugs. They also searched Salazar’s car and found 11.5 pounds of marijuana, almost $6,000 in cash, items belonging to Salazar’s daughter, and a registration form for Mitchell’s van. No one was charged for the contraband found in the car.

At trial Salazar testified that she and Mitchell had an off-and-on relationship. She said that she incriminated Mitchell the night of the incident, because the deputies threatened her with the loss of her children.

She testified that she, not Mitchell, leased the Lake Worth house, and she still had possession of the home. She identified a copy of the lease in her name which was admitted in evidence. The phone bill and security system contract were in her name. However, Mitchell’s name appeared on the electric bill. Salazar explained that this was because she could not obtain service in her own name. According to Salazar, Mitchell did not have a key to the home and did not reside there.

Salazar testified that four months before the incident she purchased a home in Port St. Lucie. At the time of the incident and discovery of drugs, Mitchell’s sister and her boyfriend were living at the home. Mitchell’s sister was a good friend, and Salazar continued to visit the home frequently. Salazar still had a key to the home. Mitchell never resided in the Lake Worth home, but spent time with her there and at his mother’s home in West Palm Beach. One of the deputies testified that a leasing agent for the building told him that a relative of Mitchell lived in the apartment.

On the night the officers responded to the Lake Worth home, Salazar and Mitchell had been fighting at a nightclub close to the Lake Worth home, so they decided to leave the club and go to the Lake Worth residence rather than drive all the way to Port St. Lucie. The fight continued when they arrived at the house, and during the fight the contents of her purse were strewn across the floor.

Based upon this evidence, Mitchell’s counsel requested a special jury instruction on constructive possession where the contraband is found on jointly possessed premises. The trial court denied the request and read the jury the standard jury instruction on possession. The jury found Mitchell guilty on both charges, and the court imposed concurrent twenty-year sentences. Mitchell appeals his convictions and sentences, challenging the court’s failure to read his special jury instruction instead of the standard instruction.

The trial court read the standard jury instruction on possession:

To “possess” means to have personal chargé of or exercise the right of ownership, management, or control over the thing possessed.
Possession may be actual or constructive.
Actual possession means
(a) the thing is in the hand of or on the person, or
(b) the thing is in a container in the hand of or on the person, or
(c) the thing is so close as to be within ready reach and is under the control of the person.
Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.
Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing, (2) knowledge that the thing was within the person’s presence, and (3) knowledge of the illicit nature of the thing.
Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.
If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed.

(emphasis added). Mitchell proposed to delete the bolded language regarding joint possession of an article and to substitute the following:

To establish constructive possession of a controlled substance, the State must show that Charles Mitchell had dominion and control over the contraband, that he had knowledge that the contraband was within his presence, and that he had knowledge of the illicit nature of the contraband. If the premises on which the contraband is found are in joint, rather than exclusive possession of Charles Mitchell, knowledge of the presence of the contraband on the premises and Charles Mitchell’s ability to maintain control over it will not be inferred. The State must establish knowledge and Charles Mitchell’s ability to maintain control over it by independent proof of Charles Mitchell’s actual knowledge, or evidence of incriminating statements and circumstances other than mere location of the substance.

This language is a modification of a quote from J.M. v. State, 839 So.2d 832, 834 (Fla. 4th DCA 2003) (quoting Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998)).

A defendant in a criminal case is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support the instruction. Smith v. State, 424 So.2d 726, 732 (Fla.1982). In Stephens v. State, 787 So.2d 747 (Fla.2001), the supreme court stated:

In order to be entitled to a special jury instruction, Stephens must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.

Id. at 756 (footnotes omitted).

The state concedes that the special jury instruction accurately states the law. However, the state contends that the facts do not support the modification in the way Mitchell requested and that it could be confusing to the jury. Mitchell, on the other hand, maintains that the standard instruction does not adequately cover his defense on the facts of this case, where he claimed that he was not in exclusive possession of the premises.

Mitchell correctly states that this is a case of constructive possession, but the state argues that it is a case of actual possession. All one needs to read is that portion of the standard jury instruction to recognize that this is not a case of actual possession, which requires the contraband to be in the hand of or within ready reach of the defendant. Actual possession refers to physical possession. See Scruggs v. State, 785 So.2d 605, 607 (Fla. 4th DCA 2001). Because Mitchell was not even in the home when the officers entered, having been removed by the officers, the drugs could not be within his ready reach.

Because this is a case of constructive possession, there is a crucial distinction between joint possession of the premises and exclusive possession of the premises. If the defendant were in exclusive possession of the premises, the knowledge of the presence of the contraband may be inferred. See, e.g., Murphy v. State, 511 So.2d 397, 399 (Fla. 4th DCA 1987). Mitchell’s theory of defense, however, was that because the premises were in joint possession, his knowledge of the presence of the contraband and his ability to maintain control over it could not be inferred from his possession of the premises.

The facts do not support a case of exclusive possession but instead support a theory of joint possession of the premises. In the context of contraband possession, we have construed exclusive possession to mean “vested in one person alone.” See Lee v. State, 835 So.2d 1177, 1179 (Fla. 4th DCA 2002). Here, the evidence showed joint possession of the premises. Both Salazar and Mitchell were present on the premises when the officers arrived. Salazar was the lessee of the premises and paid many of the bills. Before she moved to Port St. Lucie, Mitchell sometimes stayed with her at the Lake Worth home. Although she told deputies at the scene that Mitchell resided in the premises, she testified at trial that Mitchell did not reside in the apartment. Instead, Mitchell’s sister and her boyfriend lived there. Some evidence corroborated this statement.

At best even with Salazar’s statement that Mitchell resided on the premises, she had the legal possession as lessee and the ability to enter the premises at will. No evidence was presented to show that Mitchell had a lease agreement which would have given him possessory rights exclusive of Salazar. Furthermore, both were present on the premises when the officers arrived. Therefore, there was ample evidence to support Mitchell’s theory that possession of the premises was joint.

In cases of joint possession of the premises, the standard jury instruction is confusing. The instruction discusses joint possession of “the article” but does not discuss joint possession of the premises upon which the article is found. The standard instruction states:

Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.

The instruction does state, “If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed.” However, that seems to contradict the statement that where joint possession is shown, each person can be considered to be in possession of the article.

With respect to joint possession of the premises, the law is well-settled. If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof. See Brown v. State, 428 So.2d 250, 252 (Fla.1983). Where joint possession of the premises is shown, the knowledge element may be met by contraband in plain view in the common areas of the premises. Id. However, where the contraband is not in plain view, such knowledge cannot be inferred. In this case, some of the contraband was in plain view, but much of it was not. The mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the entire amount of contraband found upon a search of a residence. See Hill v. State, 873 So.2d 491 (Fla. 1st DCA 2004).

The standard jury instruction does not explain what must be proved where possession of the premises is in joint rather than exclusive possession of the defendant. The specially-requested instruction, unlike the standard instruction, instructs the jury that the elements of knowledge and ability to control may not be inferred from the mere fact of joint possession of premises where contraband is found, but must be established by independent proof. Therefore, in this case Mitchell’s special jury instruction was necessary in order to present Mitchell’s theory of defense.

Finally, the special instruction is not confusing or misleading, and we reject the state’s parsing of the language to try to make it seem confusing. On the whole, the instruction correctly states the law and provides to the jury legal principles necessary for it to decide the case. At trial, the state did not object to the instruction on the grounds that it was confusing. In fact, the state did not object at all. Instead, the trial court rejected the instruction because it believed that the standard instruction and the special instruction essentially said the same thing. As we have shown, the special instruction covers legal principles which the standard jury instruction does not.

Because the trial court erred in refusing to give the special jury instruction, we reverse Mitchell’s conviction and sentence and remand for a new trial. We also recommend to the Criminal Standard Jury Instruction Committee that it review the standard instruction for modification in cases where an issue at trial involves the joint possession of the premises on which contraband is found.

POLEN and GROSS, JJ., concur.


author: WELLS, Judge.

text:
    CITICORP INVESTMENT SERVICES, INCORPORATED, a foreign corporation, and Luis Prieto, in his individual capacity, Appellants, v. Vilma MEDANIC, individually and Armida Medanic, individually, Appellees.
    No. 3D06-2902.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.

      Bressler, Amery & Ross, and Alex J. Sabo and Seth V. Alhadeff, Miramar, for appellant.
    William L. Richey; Milton M. Ferrell, Jr., and Carlos A. Nunez-Vivas, Miami, and Lilly Ponce, for appellees.
    Before FLETCHER, WELLS and SUAREZ, JJ.
   WELLS, Judge.

Citicorp Investment Services, Inc. (“CIS”) and Luis Prieto appeal an order denying their motion to stay this action pending arbitration pursuant to an arbitration clause contained in plaintiffiappellee Vilma Medanic’s client agreement. We reverse.

CIS is a securities broker-dealer and a member of the NASD. Luis Prieto is a former financial executive at CIS, whose responsibilities included recommending financial investments for CIS clients and conducting transactions with respect thereto on the clients’ behalf. Appellee Vilma Medanic and her sister, Armida Me-danic, had individual accounts at CIS with Prieto as their financial advisor at all times relevant to this appeal.

In early 2000, Prieto allegedly advised the Medanic sisters to invest in a fixed annuity offered by Sun Life Assurance Company of Canada, which would guarantee the return of 100% of their capital investment and a minimum 5% annual interest over a 7 year period. The sisters allegedly agreed to invest in the fixed annuity but ultimately ended up with variable Sun Life annuities, which lost considerable value due to market fluctuations. Consequently, on July 6, 2005, the Medanic sisters filed suit against CIS and Prieto, raising their own, separate claims for breach of fiduciary duty, violations of Florida’s Blue Sky law, and constructive fraud. With respect to Vilma Medanic, the complaint alleged that Prieto had originally purchased a fixed annuity, but that “in August 2000, without authorization, Vilma’s money was transferred from the 7-year guaranteed fund to variable investments in the Fund.”

CIS, citing to virtually identical arbitration clauses in the client agreements signed by both plaintiffs, moved to stay the underlying action pending arbitration. The motion was granted as to Armida but denied as to Vilma because, according to Vilma, under Citigroup, Inc. v. Amodio, 894 So.2d 296 (Fla. 4th DCA 2005), the sale of the fixed annuity purchased through her CIS account and the subsequent purchase of the variable annuity did not constitute transactions within the meaning of the arbitration clause. We disagree and reverse.

As we explained in Armida’s companion case, the decision in Amodio, which involved the same arbitration clause as at issue here, turned on claims relating to the failure to engage in a transaction because of bad investment advice, rather than from a sale and subsequent purchase alleged, as here, to have been improper. See Medanic, 954 So.2d at 1213 (finding that “[w]hile in Amodio, the plaintiffs claim arose directly from the analysts’ advice, here, Medanic’s claims arise directly from the purchase of an investment product”). Amodio is simply inapposite.

Moreover, in light of Vilma’s express grant of broad authority to CIS and Prieto to “to use [her] brokerage account to process orders to purchase fixed or variable annuities,” the sale of the Sun Pife fixed annuity initially purchased through Vilma’s CIS account to purchase a Sun Life variable annuity (again purchased through that same CIS account) was a transaction that fell within the scope of the parties’ arbitration clause irrespective of the account in which these annuities were held.

Accordingly, the order denying a stay pending arbitration is reversed.

      . The order on appeal also granted CIS' motion to stay this action as to co-plaintiff, Armi-da Medanic’s claim. That portion of the order was affirmed by this Court in Medanic v. Citicorp Investment Services, 954 So.2d 1210 (Fla. 3d DCA 2007).

      . With respect to Armida Medanic, the complaint alleged that Prieto never purchased a fixed annuity at all, but instead purchased the variable annuity. Medanic, 954 So.2d at 1211.

      .The arbitration clause in Vilma’s agreement, which is substantially the same as that in Armida’s agreement, provides:
      CIS and you agree that all controversies which may arise concerning any order or transaction, or the construction, performance or breach of this agreement, whether entered into prior to, on or subsequent to the date hereof, and including any margin transaction, shall be submitted to and determined by arbitration conducted pursuant to the then current Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. Judgment upon any award rendered may be entered in any court having jurisdiction.
      Vilma’s client agreement also contains an "Annuities Transactions” provision, explaining:
      You understand that you may be able to use your brokerage account to process orders to purchase fixed or variable annuities. If this service is provided, the Clearing Broker will prepare confirmations of any transaction placed through your brokerage account. ...


author: WELLS, J.

text:
    Richard Joseph SCHISLER, Petitioner, v. The STATE of Florida, Respondent.
    No. 07-216.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Fisher & Lawrence and Joshua L. Fisher and Peter A. Butlien, North Miami Beach, for Petitioner.

      Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for Respondent.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   WELLS, J.

Richard Joseph Schisler petitions for a writ of mandamus to direct the trial court to quash an order denying his motion to disqualify Judge Lawrence A. Schwartz, claiming the Judge’s ruling was untimely under Rule 2.330(j) of the Florida Rules of Judicial Administration. We agree that because the trial court’s order was untimely under the rule, Schisler’s petition should be granted.

On December 8, 2006, Schisler filed a motion to disqualify Judge Lawrence A. Schwartz, claiming bias on the part of this judge. The motion was filed with the clerk of the circuit court and served by hand delivery on Judge Schwartz on the same day. According to a notation on the CJIS docket sheet, three days later, the motion was set for hearing at 9:00 a.m. on Tuesday, January 9, 2007, by Victor Wain-stein, the attorney who filed the motion to disqualify on Schisler’s behalf. As scheduled, the motion was heard on January 9, 2007- — 32 days after it was filed and served — and denied. Schisler now maintains that this matter must be reassigned because his motion was not ruled on within 30 days. We agree and grant relief.

Rule 2.330(j), as amended in 2005, expressly states that a motion to disqualify must be ruled on immediately and no later than 30 days after service under subsection (c) of the rule. This rule also provides that disqualification results upon the failure to rule on a disqualification motion within 30 days of service of the motion:

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Fla. R. Jud. Admin. 2.330(J).

The trial court’s failure to rule on Schis-ler’s motion within 30 days of its service therefore entitles Schisler to an order directing the clerk of the court to reassign this case. This is so even though the record confirms that the ruling was one day late, apparently because Schisler’s attorney acquiesced in having the motion set for hearing outside the 30 day time frame. In Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 302-03 (Fla.2003), the Florida Supreme Court first imposed a bright-line 30 day rule on disqualification orders. It also confirmed that the burden is on the court, not the litigants, to assure a determination within 30 days:

As an additional matter, this Court in [Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2001) ] found that the lower court’s focus on the petitioner’s failure to request a hearing on the disqualification motion was inappropriate. While this Court acknowledged that the petitioner should have requested a hearing to ensure that the trial court considered his motion, it noted that the rules did not require such a request to be made. Accordingly, this Court held that the failure of the trial judge to give an immediate ruling on the motion to disqualify violated rule 2.160. We agree with this reasoning.
Thus, based upon the reasoning of Fus-ter-Escalona and the history behind the enactment of the rule, we hold that a motion for judicial disqualification filed pursuant to Florida Rule of Judicial Administration 2.160 must be ruled on within thirty days following its presentation to the court. We believe that thirty days gives the trial court sufficient time to determine the sufficiency of a motion. A litigant who files a motion for disqualification should not be required to file a petition for a writ of mandamus to compel a trial judge to provide a ruling on the motion.

Tableau Fine Art Group, Inc., 853 So.2d at 302-03; see Fuster-Escalona, 781 So.2d at 1065 (observing “[t]he trial judge is the manager of the docket and has the ultimate responsibility to rule on pleadings that are properly pled before the court, in accord with applicable rules of procedure and court precedent”); see also G.C. v. Dep’t of Children and Families, 804 So.2d 525, 526 (Fla. 5th DCA 2002)(stating that neither sending a gentle reminder to the judge nor applying for a writ of mandamus “is a burden that should be placed on the movant. The rule places the burden on the judge to rule [as required by the disqualification rule] and the litigant should not be required to nudge the judge. Nor is it right to require a party to file a petition for writ of mandamus.”).

Therefore, under Rule 2.330(j), Schis-ler’s disqualification motion is deemed to have been granted because not ruled on within 30 days. Schisler’s petition for mandamus relief is therefore granted. The order under review is quashed and this matter remanded for entry of an order directing the clerk of the circuit court to reassign the instant case to a different judge.

      . Rule 2.330(c) governing service states that “[i]n addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.”

      . Because the thirtieth day fell on a Sunday, the order would have been timely had it been entered on Monday, January 8, making the order only one day late.

      .The Court also requested "that the Florida Bar Judicial Administration Rules Committee draft an amendment to rule 2.160 [the predecessor to current rule 2.330(j)] consistent with the opinion in this case.” Tableau Fine Art Group, Inc., 853 So.2d at 303.


author: SUAREZ, J.

text:
    DIGITAL MEDICAL DIAGNOSTICS a/a/o Jesus Gaber, Miriam Gaber, and Lidice Soto, Petitioners, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Respondent.
    No. 3D06-3097.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.

      Stephens, Lynn, Klein and Marlene S. Reiss, Miami, for petitioners.
    Michael J. Neimand, Miami, for respondent.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

Petitioners, Digital Medical Diagnostics a/a/o Jesus Gaber, Miriam Gaber, and Lid-ice Soto (“Digital”), by petition for writ of certiorari, seek review of a decision of the circuit court of Miami-Dade County in its appellate capacity reversing an order of the county court granting final judgment to Digital in three eases. We deny the petition for writ of certiorari.

The county court claims arise out of three consolidated cases. In each case, it was alleged that Digital, a healthcare provider, had rendered medical care to each of the above-named United Automobile Insurance Company (“UAIC”) insureds for injuries arising out of automobile accidents. Digital took an assignment from each insured and submitted a bill to UAIC for medical services rendered. When UAIC did not pay, Digital filed three lawsuits and the cases were consolidated. After four years of litigation, UAIC filed a motion for summary judgment claiming it had no duty to pay any of the three bills as, in each case, the individual bill fell below the insured’s deductible. The trial court denied the summary judgment stating that UAIC had waived the deductible defense as it had failed to raise the deductible issue as an affirmative defense. The parties had agreed that each bill was reasonable, related and necessary. Digital then filed a motion for summary judgment in each case which was granted and final judgment was entered.

UAIC filed an appeal in the appellate division of the circuit court. The circuit court reversed the summary judgments finding that the application of the deductible provision of a policy of insurance, as a matter of law, is not an affirmative defense which must be pled affirmatively and, therefore, had not been waived by UAIC. The circuit court also found that the evidence showed the medical bills for each insured fell below the PIP policy deductible. Therefore, UAIC had not breached the contracts of insurance. Digital then petitioned this court for a writ of certiorari.

The standard of review when a district court of appeal reviews by writ of certiorari a decision of a circuit court sitting in its appellate capacity is very narrow. The district court of appeal reviews the decision to determine whether the parties received due process of law and whether the circuit court applied the correct law. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003). The question presented in this case solely is whether the correct law was applied.

The appellate division of the circuit court was correct in reversing the final summary judgments. The application of the deductible provision in a policy of insurance is not a defense which must be raised as an affirmative defense but is, in fact, a basic part of the policy of insurance. See Appalachian Ins. Co. v. United Postal Sav. Ass’n, 422 So.2d 332, 334 (Fla. 3d DCA 1982)(“a deductible provision, being as much a basic part of the policy as the provision which sets the maximum amount of money recoverable under the policy, is not an affirmative defense which must be proved by the insurer”).

The appellate division of the circuit court also found there was no issue of material fact that each of the medical bills fell below the policy deductible. The question, once again for this court, is whether the circuit court applied the correct law. The correct law is whether there is an issue of material fact. This was the standard used by the circuit court. As such we affirm the circuit court’s decision.

Petition for writ of certiorari is denied.


author: GREEN, J.

text:
    GENERAL CAULKING COATING CO., INC., Petitioner, v. J.D. WATERPROOFING, INC., Respondent.
    No. 3D06-3041.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.

      Vincent F. Vacearella, P.A., and Vincent F. Vacearella, and Jordan M. Keusch, Aventura, and Rachael E. Kobin, for petitioner.
    Ferencik, Libanoff, Brandt, Bustamante & Williams, P.A., and Gavin D. Caddy, and Lori R. Shapiro, Ft. Lauderdale, for respondent.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   GREEN, J.

General Caulking & Coating Co., Inc., petitions this court for a writ of certiorari to review and quash the trial court’s order denying its “Motion to Quash Subpoena or in the Alternative Motion for Protective Order.” Because we find that the trial court departed from the essential requirements of the law, by ordering production of information and documents claimed to be trade secrets without conducting the requisite in camera inspection and making the necessary findings of fact, we grant the petition and quash the order under review.

This matter arises out of a construction project located in Miami-Dade County. Bovis Lend Lease, Inc., was the general contractor on the project. Bovis negotiated with J.D. Waterproofing, Inc., for the latter to perform the waterproofing work on the project. The parties entered into a letter of intent, but never contracted for the performance of the work. Bovis subsequently entered into a sub-contract with petitioner, General Caulking, to perform the waterproofing on the project.

J.D. Waterproofing brought suit against Bovis for breach of contract. General Caulking is not a party in the lower court action. Subsequently, J.D. Waterproofing served General Caulking with a subpoena duces tecum requesting, among other things, the bid and payment information for the project. General Caulking filed its Motion to Quash Subpoena or in the Alternative Motion for Protective Order asserting that the subpoena sought confidential business and trade secret information. The trial court heard General Caulking’s motion during motion calendar, and summarily denied the same. This petition followed:

It is a well-established principle of procedure that:

[w]hen the trade secret privilege is asserted as the basis for resisting production, the trial court must determine whether the requested production constitutes a trade secret; if so, the court must require the party seeking production to show reasonable necessity for the requested materials.... If production is then ordered, the court must set forth its findings.

Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So.2d 221, 222 (Fla. 3d DCA 2000), (citing Rare Coin-it, Inc. v. I.J.E., Inc., 625 So.2d 1277, 1278-79 (Fla. 3d DCA 1993)). Because the order under review makes no specific findings as to why it deemed the requested information not to be protected by the trade secret privilege we find that “it departs from the essential requirements of the law for which no adequate remedy may be afforded to petitioners on final review.” Arthur Finnieston, Inc. v. Pratt, 673 So.2d 560, 562 (Fla. 3d DCA 1996). Accordingly, we grant the petition for writ of certiorari, quash the order under review, and instruct the trial court to conduct an in camera inspection of the requested documents to make findings of facts determining whether the documents constitute trade secrets, and if so, whether the need for producing the documents outweighs the interest in maintaining their confidentiality. See Sheridan Healthcorp, 770 So.2d at 223.

Certiorari granted.


author: STEVENSON, C.J.

text:
    Roger R. LAVALLEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2487.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Rehearing Denied June 27, 2007.
    Carey Haughwout, Public Defender, and Sabarish P. Neelakanta and Margaret Good-Earnest, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, C.J.

Appellant, Roger Lavallee, was tried by jury and convicted of burglary of a dwelling and possession of marijuana. On appeal, Lavallee argues that the trial court erred in allowing impermissible hearsay, in allowing the prosecution to introduce testimony that he had gloves and a screwdriver in his pockets when arrested immediately after the burglary, and in denying a motion for judgment of acquittal as to the burglary charge. Because we agree the trial court abused its discretion in allowing testimony indicating that appellant had gloves and a screwdriver with him at the time of the burglary, we reverse.

The facts relevant to the issue which we will specifically address in this opinion are as follows. On the evening of July 26, 2005, Benjamin Pacitti entered his garage, left the garage door open, and went inside his house. When Pacitti thought he heard a tool fall shortly after 11:00 p.m., he went to the garage to investigate the noise. It was then that Pacitti saw a man holding a weed eater and trying to “finagle [his] generator out from beside the truck along the wall.” According to Pacitti, although the generator weighed between 250 and 300 pounds, a person could “just roll it” or “lift and carry it comfortably” because the generator had wheels and a handle. The defense stipulated that appellant was the person in the garage. Pacitti subsequently observed appellant exit the garage quickly and leave on a bicycle.

Sergeant Sills received a call concerning the alleged burglary and began patrolling the area looking for a suspect. Within moments of the incident and the call, Sills apprehended appellant, and Pacitti identified him as the man in his garage. The subsequent search of appellant revealed that he had marijuana, a screwdriver, and black leather gloves in his pockets.

Before the trial began, the defense attorney moved to prevent the police from testifying about the screwdriver and gloves. The defense attorney argued the evidence was irrelevant given that appellant was not charged with possession of burglary tools and the testimony was more prejudicial than probative. The trial judge denied the motion after the State asserted that the evidence showed appellant’s intent to commit a crime inside the garage. “The test of admissibility is relevancy.” Reddish v. State, 167 So.2d 858, 861 (Fla.1964). “ The concept of ‘relevancy’ has historically referred to whether the evidence has any logical tendency to prove or disprove a fact. If the evidence is logically probative, it is relevant and admissible unless there is a reason for not allowing the jury to consider it.’ ” State v. Taylor, 648 So.2d 701, 704 (Fla.1995) (quoting Charles W. Ehrhardt, Florida Evidence § 401.1 at 95-96 (1994)). “Overall, broad discretion rests with the trial court in matters relating to the admissibility of relevant evidence, and that ruling will not be overturned absent a clear abuse of discretion.” Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000). We find that the trial court abused its discretion in admitting the evidence in question.

Appellant relies on Shennett v. State, 937 So.2d 287 (Fla. 4th DCA 2006), which appears to be the closest case cited by either side. There, the passenger of a Ford Taurus, later identified as Shennett, broke into a Dodge Caravan by using a sparkplug to shatter the window. See id. at 289. The burglary was discovered while in progress, and the Taurus then led police on a high-speed chase. A search of the Taurus revealed a Ziploc baggie containing pieces of porcelain from a sparkplug and a screwdriver on the front passenger seat. Several pieces of porcelain were found mixed among the broken glass of the Dodge Caravan. The owner of the Taurus testified that he loaned the car to Shen-nett, that the screwdriver was his, and that he knew nothing about the bag with porcelain pieces. Id. at 290. Shennett was subsequently charged with, and convicted of, burglary and possession of burglary tools due to the baggie containing porcelain pieces.

On appeal, this court explicitly stated it was reversing Shennett’s convictions “because of the admission of testimonial hearsay that violated the Sixth Amendment Confrontation Clause.” Id. at 288. Germane to this case though, the court held that the trial court abused its discretion by admitting the screwdriver into evidence:

The screwdriver was irrelevant to the issues at trial because it did not “tend[ ] to prove or disprove a material fact” in the case. § 90.401, Fla. Stat. (2005). The burglary tool which Shennett was charged with possessing was “porcelain pieces.” There was no evidence that he used the screwdriver in any way to burglarize Brown’s minivan. The screwdriver had no connection with either charged offense [burglary and possession of burglary tools]. See Rigdon v. State, 621 So.2d 475, 478 (Fla. 4th DCA 1993).

937 So.2d at 292-93.

As in Shennett, there was no evidence that appellant used, or even attempted or intended to use, the screwdriver or gloves to facilitate his burglary of Pacitti’s home. Thus, consistent with the holding in Shen-nett, the evidence that appellant possessed a screwdriver and gloves shortly after the burglary, and most probably during the burglary, was irrelevant. There was simply no connection shown between appellant’s possession of the items and the crime charged. Indeed, the State compounded the error of the admission of the screwdriver and gloves by stating in closing arguments: “These are not items of a biker; these are items of a thief.”

Our independent research has revealed an earlier Florida Supreme Court case which bears consideration. In Rebjebian v. State, 44 So.2d 81 (Fla.1949), the defendant was convicted of breaking and entering with intent to commit grand larceny, and the court approved the introduction of evidence that the defendant carried a screwdriver and gloves even though there was no direct evidence that he used these items to commit the offense. The evidence in Rebjebian was that “the householder” had received several strange telephone calls during a period of about a week, which caused him to believe his home was being “cased” in preparation for a robbery. Id. at 82. The evidence suggested that the householder was a person of considerable means as there was $20,000 worth of jewelry in the master bedroom, silverware valued at $3,000, and a butler on staff. The householder notified police, who then set up a sting operation whereby they advised the householder to absent himself and his wife from the house for an afternoon while several detectives hid in the master bedroom. That afternoon, the telephone rang several times in succession, but was not answered. Shortly thereafter, Rebjebian attempted to enter the bedroom and was arrested. See id.

In Rebjebian, the court noted the fact that the defendant wore gloves and carried a screwdriver was relevant to the question of whether Rebjebian intended to commit an offense when he entered the house. The court remarked that, in light of the circumstances surrounding the incident, it was not unreasonable to assume the defendant “wore gloves for the purpose of leaving no telltale fingerprints.” 44 So.2d at 83. As for the defendant’s possession of the screwdriver, the court stated: “The screw driver, though a very commonplace tool, is hardly one that would be carried by a casual caller. Id. In discussing the surrounding circumstances, the court stated:

So, if we examine the circumstances surrounding the incident we find that there had been a persistent effort on the part of someone, shortly before the entry, to determine by calling on the telephone whether anyone was in the house. Following that, the defendants were seen to drive slowly past the house and to stop just beyond it, but near enough that one fleeing would have a means of escape. The defendant Rebjebian then looked into the house and rang the doorbell. When no one responded he made his way in by opening a door which had been locked. In a minimum of time he appeared in a room where the owners kept jewelry of considerable value. Upon being ordered to raise his hands he attempted to flee.

Id.

We find Rebjebian distinguishable from the instant case. In Rebjebian, there were a number of factors, as recognized by the court, which suggested the defendant had been attempting to gain unlawful entry into the victim’s home for some time. After Rebjebian satisfied himself that no one was in the dwelling, he went in through a door which had been locked. In view of all of the circumstances in that case, Rebjebi-an’s possession of a screwdriver and gloves achieved at least a modicum of relevancy.

Accordingly, we reverse the judgment and sentence for burglary and reverse and remand for a new trial. We affirm the conviction for possession of marijuana, which was not challenged in this appeal.

Reversed and Remanded.

HAZOURI and MAY, JJ., concur.


text:
    Dante G. MANYARI, Appellant, v. Maria A. MANYARI, Appellee.
    No. 3D06-1636.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    llene F. Tuckfield, for appellant.
    Braswell Sallato, P.A. and Maria Teresa Sallato, for appellee.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Based on the record before us, we cannot conclude that the trial court abused its discretion in permitting the former wife to relocate to Chile with the parties’ minor child based upon its findings made pursuant to Section 61.13(2)(d), Florida Statutes (2005). See e.g., Segarra v. Segarra, 947 So.2d 543, 546 (Fla. 3d DCA 2007)(District court reviews for abuse of discretion trial court’s decision on petition for relocation of child); Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001)(same). Accordingly, we affirm.


text:
    Steven D. HANSON, Appellant, v. OCEAN BEACH PROPERTIES and Florida Unemployment Appeals Commission, Appellees.
    No. 3D06-2074.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Steven D. Hanson, in proper person.
    John D. Maher, Tallahassee, for the Florida Unemployment Appeals Commission.
    Before GREEN, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Miller v. America’s Best Painting & Waterproofing, Inc., 897 So.2d 512 (Fla. 3d DCA 2005); King v. Fla. Unemployment Comm’n, 763 So.2d 1151 (Fla. 4th DCA 2000).


text:
    DIEUTAMY EXILUS ACQUISSA, Appellant, v. Venila JOHNSON, Appellee.
    No. 3D06-2924.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Catherine L. Roselli, Fort Lauderdale, for appellant.
    Francis R. Gil, Miami, for appellee.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001)(affirming where there was no indication that the need for statutory findings was called to the attention of the trial court); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (stating that without a transcript, the record is inadequate to demonstrate reversible error).


author: FULMER, Chief Judge.

text:
    Jose NEGRON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4857.
    District Court of Appeal of Florida, Second District.
    May 30, 2007.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

Jose Negron challenges the imposition of investigative costs in the amount of $520 in this appeal from his conviction for trafficking in phenethylamines. Because Neg-ron has not shown that the trial court failed to consider his financial resources when it imposed investigative costs as a lien, we affirm.

The date of the offense was February 13, 2001. In 2005 Negron pleaded guilty in exchange for a 44.4-month prison sentence. At the sentencing hearing, Negron offered no objection when the State requested investigative costs on behalf of the St. Petersburg Police Department and the trial court imposed them as a judgment lien. The trial court made no express inquiry into Negron’s financial circumstances; however, the record reflects that the court had found Negron to be indigent in 2003.

Negron’s appellate counsel filed a motion under Florida Rule of Criminal Procedure 3.800(b), arguing that the costs were not supported by documentation and the trial court did not consider Negron’s ability to pay before imposing the costs. The trial court denied the motion, stating:

The record reflects that supporting documentation was provided for the investigative costs via the arrest affidavit filed in this case.... Additionally, the language of section 938.27, Florida Statutes, indicates that imposition of investigative costs is mandatory. Section 938.27(4) also indicates that the defendant has the burden of proving his financial resources and needs, but need prove these only if the amount or type of costs is disputed. In the instant case, the Defendant did not dispute the imposition of the investigative costs.

The trial court attached the arrest affidavit to its order, which indicates a request for investigative costs in the amount of $520. However, the trial court erroneously relied on the current version of the statute in ruling on Negron’s assertion that the trial court failed to consider his ability to pay.

On appeal, Negron argues that, pursuant to the 2000 version of section 938.27, Florida Statutes, the trial court had to specifically ask whether Negron had the ability to pay before imposing the costs. Subsection (5) of the 2000 version of section 938.27 requires the court to “consider the amount of the costs incurred, the financial resources of the defendant, the financial needs and earning ability of the defendant, and such other factors which it deems appropriate.” Section 938.27 was amended effective July 1, 2003, and the current version of the statute omits the requirement that the court consider the financial resources, needs, and earning ability of the defendant. See § 938.27, Fla. Stat. (2006).

We agree with Negron that the trial court applied the wrong version of the statute in ruling on his 3.800(b) motion. However, we do not agree that the applicable version required the trial court to specifically ask whether Negron had the ability to pay before imposing the costs. Rather, the trial court was required to “consider” Negron’s financial resources, needs, and earning ability. We conclude that the trial court implicitly recognized, and thus “considered,” Negron’s lack of ability to pay by imposing the investigative costs as a judgment lien rather than requiring that they be paid within a specified period or in specified installments as authorized by subsection (3) of the 2000 version of section 938.27.

Affirmed.

CASANUEVA and STRINGER, JJ., Concur.

      . Ch.2003-402, § 127, Laws of Fla.

      . We recognize that in Thibault v. State, 945 So.2d 646, 647 (Fla. 2d DCA 2006), this court addressed a March 2003 offense and reversed investigative costs upon a concession by the State that the trial court failed to consider Thibault’s financial resources. However, the opinion does not reflect whether the costs were ordered to be paid within a specified period or whether they were simply imposed as a judgment lien.


text:
    Charles L. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-496.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Charles L. Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).


text:
    James DIEUDONNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1441.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    James Dieudonne, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

This appeal emanates from the trial court’s order summarily denying appellant’s motion for postconviction relief. On March 9, 2007, the circuit court clerk’s office accepted for filing appellant’s 49-page motion for posteonvietion relief with several attached affidavits. On the face of the motion is a notation: “Sent to Judge on 3/21/07 by [initials],” which we assume are the initials of a deputy clerk. The trial court denied the motion on March 22, 2007, by an order which states merely that a hearing on the motion is unnecessary. Nothing is attached to the order conclusively refuting the allegations of the motion, and the order does not set forth any rationale for denial.

We summarily reverse. A cursory look at the motion indicates that it is technically sufficient, and the grounds raised are such that review of the proceedings, or part of them, will be necessary to determine their sufficiency. There is no need to secure a response from the office of the Attorney General on behalf of the state, because without access to the trial court file, there is no way to determine the validity of the claims.

When a trial court denies a rule 3.850 motion without an evidentiary hearing, it must “either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)). The trial court’s order in this case does neither.

The order is reversed and remanded for attachment of records conclusively refuting the allegations of the motion or for an evidentiary hearing. Fla. R.Crim. P. 3.850(d) (explaining that, where summary denial is not based on legal insufficiency of the motion on its face, the portions of the record that conclusively show the movant is not entitled to relief must be attached to the order).

STONE, WARNER and MAY, JJ., concur.