author: SALCINES, Judge.

text:
    Peter MOHR, Petitioner, v. STATE of Florida, Respondent.
    No. 2D05-2150.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.
    Peter Mohr, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   SALCINES, Judge.

Peter Mohr, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds raised therein, and we deny, without comment, the remaining ground. In the second ground of the petition, Mohr alleged that appellate counsel was ineffective for failing to argue that the trial court reversibly erred in allowing certain portions of Mohr’s videotaped interview with the investigating detective to be presented to the jury as evidence. We agree with Mohr’s contention, and we conclude that Mohr is entitled to a belated direct appeal on this issue only.

Mohr was convicted, after jury trial, of sexual battery on a person physically helpless to resist. This court affirmed the judgment and sentence. See Mohr v. State, 875 So.2d 614 (Fla. 2d DCA 2004) (table decision). The appendix to the petition contains only a small portion- of the trial transcript, and Mohr relies, in part, on the statement of the case and facts contained in the initial brief on direct appeal. The statement of the case and facts indicates that the victim in this case knew Mohr through her husband. On the day in question, with her husband out of town at a wedding, the victim went out drinking and dancing with Mohr and another man named Josh Betts. The three of them then went to the victim’s house. Shortly thereafter, Betts left and went home. After vomiting in the bathroom, the next thing the victim remembered was waking up in her bed. Mohr was on top of her with his penis in her vagina. The victim had not consented to any sexual activity, and she immediately jumped up, got her cell phone, ran out of the bedroom, and called her husband.

Mohr did not testify at trial and, according to the State’s response to the petition, when questioned by the trial court after the State rested its case-in-chief, he averred that his videotaped statement to the detective contained everything he would have said had he testified. At trial, the State showed the jury the videotape of the detective’s interview with Mohr. The videotape as shown had statements of both the detective and Mohr redacted. The jury was also provided a redacted transcript of the interview to refer to while viewing the videotape. This transcript is included in the appendix to the State’s response to the petition.

In the first half of the interview, Mohr told the detective his account of what happened that night. During this time, the detective made a number of one-word comments in response to Mohr’s statements. His participation appears to have been designed to encourage Mohr to relate his version of events. Mohr indicated that he and the victim were both intoxicated from drinking alcohol when they engaged in consensual sex. There was kissing and foreplay. Mohr told the detective that the victim was a willing participant and the sex was consensual. When Mohr asked her, the victim said she was sure she wanted to have sex. Mohr stated he would not have engaged in consensual sex with the victim had he not been under the influence of alcohol. According to Mohr’s version, about ten minutes after the sexual encounter ended, the victim asked: “What did I do?” Mohr stated: “You know what you did.” At this point, the victim told him that she wanted to call her husband and Mohr got the phone for her.

In the second half of the interview, the detective challenged Mohr’s version of events, but Mohr stood by his prior statements. At no time did he indicate that the sexual encounter was other than consensual. The detective advised Mohr of what he believed happened. He indicated that he had no doubt the victim was telling the truth and that Mohr was lying. The detective told Mohr that he is a different person when he is drunk and that this was the person who had sex with the victim without her consent. The detective also opined that the victim would not have called her husband had she consented to the sexual encounter.

Prior to trial, Mohr moved in limine to exclude certain portions of the videotaped interview from evidence including the “[pjersonal views of law enforcement regarding the veracity of the alleged victim,” the “personal views of law enforcement regarding the defendant’s character,” and the “personal views of law enforcement regarding the incident.” At the hearing on the motion in limine, Mohr, the prosecutor, and the trial court considered the transcript of the interview. Mohr objected to certain of the detective’s statements being admitted into evidence on the grounds that the detective was stating his beliefs regarding what happened; that he was telling the victim’s version of events; that he was giving approval to the State’s theory; that he was attacking Mohr’s character by suggesting that he has a personality disorder and a dual personality; and that the detective was, in essence, making a closing statement to the jury. Finally, Mohr argued that any probative value of the detective’s comments was outweighed by the unfair prejudice to Mohr.

The transcript of the videotaped interview which was provided to the jury to refer to during the playing of the videotape contained the following statements' of the detective, none of which were adoptive admissions of Mohr:

You’re the nice guy Pete talking to me right now. Last night when you got drunk, you weren’t the nice guy Pete. You were the kind of guy that took advantage of her and had sex with her when she could not even think about consenting to you.
But, when you get drunk you lose, you lose control Pete. I’m telling you. You lose control. You jump on her and had sex with her. Okay? And she, there was no way in the world she wanted to have sex with you, okay?
But you turn into something different when you get shit faced. And that’s what you did last night.
She did not want to have sex with you last night. She was in no condition to have sex with you last night. Things got out of hand.
[The victim] don’t, you don’t jump up and scream rape and you don’t call people and you don’t, she didn’t even take a piss yet. Never even took a piss because she knows that your semen’s going to be inside her.
Well, [the victim] was oblivious to what was going on around her then. Because she was in no position to consent to have sex with you. Cause if she was, if she felt the least little bit responsible, there would have never been a phone call. She would a[sic] had to live with it, but she certainly wouldn’t a[sic] called her husband back from Jacksonville and all this shit. This shtick would have never happened. She would a[sic] said a mistake like a lot of wives and husbands do when they’re out of town or whatever. I’ll live with it. It’ll be tough. I’ll live with it. But she don’t jump up and down and start
screaming rape if [s]he’s even the slightest bit knowing what’s going on.
[The victim’s] down there getting poked and prodded [emotionally] á thousand different way [sic], which she would not be doing if it happened like you said. If you both made á bad decision, I’m sure that she’s an intelligent enough woman that she would say, hey I screwed up and my husband’s out of town. Maybe I’ll tell him, maybe I won’t.. But, I’m certainly not going to go through all this stuff. I’m not going to be, you know, she’s afraid to even take a piss because she wants, she wants to know that your, your evidence is going to be inside of her.
But now you’re trying to do -something worse by trying to cover it up. Okay? There’s no doubt in my mind that you had sex with her while she was passed out, okay? There’s no doubt in my mind.

The defendant in Pausch v. State, 596 So.2d 1216, 1218 (Fla. 2d DCA 1992), was convicted, after a jury trial, of second-degree murder and aggravated child abuse. Her son was the victim. See id. at 1217. This court held that Pausch was deprived of a fair trial based on the introduction into evidence of the statements of the investigating detective contained in an interview of the defendant. We noted:

Pausch never admitted responsibility for the death of her son. She simply asserted that Christopher must have fallen to the floor while asleep. [Detective] Bon-sall disbelieved her story and accused her of lying, and of abusing her son. .Bonsall persistently condemned Pausch as an unfit mother, and predicted that if Christopher returned to her care, she would eventually kill him.

Id. at 1218. The trial court allowed the jury to hear an unedited version of the tape of the interview despite Pausch’s objection on the ground of relevancy or, in the alternative, that any slight probative value the tape may have had was substantially outweighed by the prejudicial impact of the detective’s remarks. See id. The State argued that the issue was not preserved for appeal. See id. The Pausch court stated: “We agree that Pausch should have advanced a more specific objection to the tape recording, but we nonetheless find that the error fundamentally undermined the fairness of her trial.” Id. at 1218. The court concluded that the “introduction of Bonsall’s statements was prejudicial, confusing, and misleading.” Id- The court further concluded that “the jury in this case could not have reasonably been expected to isolate and extract from the recording that which was admissible as evidence of the crime while disregarding the aspersions of guilt created by Bonsall’s words.” Id. at 1219. We ordered that “[i]n any subsequent trial of this matter, only those sections of the tape that are relevant and free from the taint of Bon-sall’s words may be played to the jury.” Id.

In the present case, Mohr advanced more specific objections to the statements of the detective than did Pausch. Regardless, in Pausch this court found that the error in admitting the statements fundamentally undermined the fairness of Pausch’s trial. Here, the detective, through the admission of his statements in the videotape, advised the jury of his personal belief in Mohr’s guilt and his theories as to why Mohr committed the offense and why the victim was telling the truth. He presented his opinion as to the ultimate fact to be decided by the jury. The jury could not reasonably have been expected to disregard the aspersions of guilt created by the detective’s words. Appellate counsel’s failure to argue that the trial court erred in admitting into evidence the detective’s statements, including those cited above as well as other similar statements, constituted deficient performance that undermined confidence in the fairness and correctness of the appeal. See Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (holding that to establish a claim of ineffective assistance of appellate counsel, a petitioner must show that counsel’s performance was deficient and the deficiency of the performance compromised the appellate process to such a degree as to undermine confidence in the correctness and fairness of the appeal).

Although we hold that appellate counsel was ineffective in failing to argue that the trial court erred in admitting the statements into evidence, we do not have a sufficient record before us to determine whether the error was harmless. Compare Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004) (holding that our review of the record led us to conclude that the error was not harmless and that granting the petitioner a new appeal would be redundant because we would have been compelled to reverse the petitioner’s convictions had appellate counsel raised the issue in the direct appeal); see also Baker v. State, 877 So.2d 856, 858 (Fla. 2d DCA 2004) (awarding the petitioner a new appeal where the determination as to whether the error was fundamental required a full review of the record on appeal). We, therefore, grant the petition with instructions to the trial court to, within thirty-days from the date of the mandate in this case, appoint an appellate attorney to file a brief limited to the issue outlined above. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.

The petition is denied in part and granted in part.

WHATLEY and SILBERMAN, JJ., Concur.

      . At the hearing on the motion in limine, the trial court and the parties used the page numbers of a transcript of the interview to refer to certain statements contained therein. The re-dacled transcript which is included in the appendix to the State's response is paginated differently, and the statements in question do not have the same page designation.

      . At the hearing on the motion in limine, Mohr objected to these statements being admitted into evidence. Mohr renewed his objections prior to the videotape being played for the jury.


source: Caselaw Access Project

author: DONNER, AMY STEELE, Associate Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. David GRANDSTAFF, Appellee.
    No. 4D05-506.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   DONNER, AMY STEELE, Associate Judge.

The State of Florida appeals the trial judge’s decision to mitigate Appellee’s DUI sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). This Court treats such appeals as petitions for common-law writs of certiorari. See State v. Woodard, 866 So.2d 120, 121 (Fla. 4th DCA 2004); compare Fla. R.App. P. 9.100(c)(1), with Fla. RApp. P. 9.140(c). Because the trial court did not. depart from the essential requirements of the law in mitigating Appellee’s sentence, we deny the writ.

On November 2, 2004, Appellee, David Grandstaff, was found guilty of driving under the influence and sentenced to 364 days in jail. Grandstaff was ordered to attend an internal substance abuse program while incarcerated. If the substance abuse program was completed within six months, the judge stated that Grandstaff would be placed on six months of probation.

Grandstaff filed a motion to mitigate his sentence within the sixty-day period required. See Fla. R.Crim. P. 3.800(c). Hearing on the motion was delayed due to confusion on the part of the court administration regarding the assignment of the judge who would hear the motion. This delay caused the hearing to be held past the expiration of the sixty-day period. Grandstaff was not responsible for the hearing’s delay.

The motion to mitigate was heard on January 12, 2005. Grandstaff presented several arguments in support of his motion. Grandstaff argued that due to the jail staffs inability to accommodate attendance in a substance abuse program, the staff was uncertain as to when the program could be started. As the intent of the trial judge was to ensure Grandstaff received treatment, the inability to participate in a substance abuse program was argued as grounds for sentence mitigation. Also, Grandstaff was unable to care for his developmentally-delayed sibling while incarcerated.

The trial judge granted Grandstaff s motion. The original sentence was vacated and the trial judge resentenced him to seventy-four days in jail with credit for seventy-four days. Grandstaff was additionally required to complete a drug program. The State seeks our review of this decision.

Florida Rule of Criminal Procedure 3.800(c) provides that a trial court may reduce or modify a sentence “within 60 days after the -imposition[.]” This rule has been construed to require reduction or modification within the sixty-day period, irrespective of the timeliness of a motion. See Woodard, 866 So.2d at 121; Hussey v. State, 739 So.2d 123, 124 (Fla. 4th DCA 1999). However, those decisions are based on the defendant’s own lack of diligence in ensuring that his or her motion is heard within the sixty-day period. Woodard, 866 So.2d at 121; Hussey, 739 So.2d at 124.

Here, Grandstaff timely filed his motion, and was diligent in seeking a hearing prior to the sixty-day deadline. Through no fault of his own, a hearing was not held until after the sixty-day period had already expired. Where the court itself is at fault for failing to timely consider motions before it, strict adherence to procedural niceties leads to an inequitable result. See Lackos v. State, 339 So.2d 217, 219 (Fla.1976) (“The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial.”). The equitable intent of the rules is to see that justice is done. Id.

Allowing Grandstaffs timely motion to be denied due to the trial court administration’s inability to determine which judge should hear the motion results in an inequitable and unjust application of the Florida Rules of Criminal Procedure. Clearly, the trial court had jurisdiction to grant the motion when it was filed. The absence of a judge to act on the motion promptly was not the fault of Grandstaff. To find that jurisdiction was ultimately lost simply because no judge was available does not comport with the equitable intent of the Florida Rules of Criminal Procedure. Such a finding would deal an injustice to those who properly comply with the terms of the Rules, but are thwarted in obtaining relief due to circumstances beyond their control. The trial court acted within the essential requirements of the law in granting Grandstaff s motion. See Barnett Bank of S. Fla., N.A. v. Statewide Mortgage Corp., 464 So.2d 187, 188 (Fla. 4th DCA 1986).

We conclude that the issue presented by this appeal is one of great public importance and has a great effect on the proper administration of justice. Therefore, we certify the following question to the Florida Supreme Court for its discretionary review pursuant to Florida Rules of Appellate Procedure 9.030(a)(2)(A)(v) and 9.030(a)(2)(B):

Where defendant timely files a motion for reduction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), but, through no lack of diligence in obtaining a hearing date or no fault of his or her own, the hearing does not take place until after the expiration of the sixty-day period as provided in the Rule, is the Court divested of jurisdiction to consider and rule upon the timely filed motion ? Affirmed.

GUNTHER and FARMER, JJ., concur.


author: KLEIN, J. REYES, ISRAEL U., Associate Judge,

text:
    Quincy JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2014.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-EUen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of shooting a deadly missile and aggravated battery with a deadly weapon. We affirm on all issues except the firearm enhancement of his sentence for shooting a deadly missile. Although some cases hold to the contrary, we conclude that the use of the firearm was an essential element of the crime.

As a result of appellant’s shooting several times into a house, he was found guilty of shooting a deadly missile. Because the jury found that he discharged a firearm, the trial court enhanced the offense. He argues that the enhancement amounts to an illegal sentence because the firearm enhancement statute, section 775.087(1), Florida Statutes (2001), does not apply to felonies in which the use of a “weapon or firearm” is an essential element.

The conviction for shooting a deadly missile is based on section 790.19, Florida Statutes (2001), which provides in pertinent part:

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Our weapon or firearm enhancement statute, section 775.087(1), Florida Statutes (2001), provides for enhancement to a higher degree of felony except for “a felony in which the use of a weapon or firearm is an essential element.” Florida Standard Jury Instructions in Criminal Cases section 3.3(b) expressly defines “weapon,” for purposes of applying section 775.087(1), the weapon enhancement statute, as follows:

A “weapon” is legally defined to mean any object that could be used to cause death or inflict serious bodily harm.

The instruction was adopted in 1981, and in State v. Burris, 875 So.2d 408 (Fla.2004), our supreme court held that the instruction is the definition of weapon as used in section 775.087. Accordingly, the crime of which appellant was convicted has, as an essential element, the use of a weapon.

The state relies on our decision in Robertson v. State, 807 So.2d 708 (Fla. 4th DCA 2002), in which the issue was whether additional sentencing points are authorized when the defendant uses a firearm and is convicted of shooting a deadly missile. We held that it was permissible to impose the additional sentencing points because possession of a firearm was not an essential element of the crime. We relied on Bradford v. State, 722 So.2d 858 (Fla. 1st DCA 1998), which came to the same conclusion for sentencing points. Before Bradford, the first district held in Horn v. State, 677 So.2d 320 (Fla. 1st DCA 1996), that the use of a firearm wás a necessary element of shooting at an occupied vehicle in violation of section 790.19, Florida Statutes (1993). The third district has also held that the use of a firearm is a necessary element of shooting into an occupied vehicle. Jones v. Singletary, 621 So.2d 760 (Fla. 3d DCA 1993).

We do not deem it necessary, at the present time, to determine if there is an inconsistency between Robertson, which involved sentencing points, and the present case, which involves the enhancing of the felony to a higher degree, because the analysis involves different statutes. Although it is arguable, from White v. State, 714 So.2d 440 (Fla.1998), that the analysis should be the same, we have concluded that the sentencing points issue should await a case involving that precise question.

We accordingly remand for resentencing on the conviction of shooting a deadly missile. We have considered the other issues and find them to be without merit.

Reversed.

STONE, J., concurs.

REYES, ISRAEL U., Associate Judge,

concurring specially in part.

It is my opinion that the majority reached the right conclusion, but for the wrong reasons, regarding the firearm enhancement issue. Therefore, I concur only in the judgment for the reasons stated herein.

The first consideration of statutory construction is the plain meaning of the statute, because legislative intent is derived primarily from its language. See State v. Bodden, 877 So.2d 680 (Fla.2004); State v. Rife, 789 So.2d 288, 292 (Fla.2001); Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898 (Fla.1996). Florida courts have long held that one of the most fundamental tenets of statutory construction requires that statutory language be given its plain and ordinary meaning unless words are defined therein. See Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So.2d 1351 (Fla.1984); Green v. State, 604 So.2d 471 (Fla.1992); State v. Del Castillo, 890 So.2d 376 (Fla. 3d DCA 2004). If not defined in a statute, a court may refer to a dictionary to ascertain the plain and ordinary meaning that the legislature intended to ascribe to a term. See L.B. v. State, 700 So.2d 370 (Fla.1997).

Additionally, where the language of the statute is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the Legislature as expressed in the plain language of the statute. See Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (Fla.2000). A court cannot construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. See Velez v. Miami-Dade County Police Dep’t, No. SC04-1944, — So.2d -, 2006 WL 345702 (Fla. Feb. 16, 2006). To do so would be an abrogation of legislative power. See McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)).

Section 790.19, Florida Statutes (2004), states in pertinent part:

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Although the terms “weapon” and “firearm” are not used in the statute, the terms “shoot” and “missile” are used. Since those terms are not defined in the statute, this court must look to the dictionary to determine the meaning of “shoot” and “missile.” The American Heritage Dictionary of the English Language 1259 (4th ed.2000), defines “shoot” as “[t]o hit ... with a missile fired from a weapon.” Id. According to Black’s Law Dictionary 1378 (6th ed.1990), “shoot” “generally implies the use of firearms.” The American Heritage Dictionary of the English Language 872 (4th ed.2000), defines “missile” as “[a] ... weapon that is fired ... at a target.” Fired means to have been discharged from a firearm. Id. at 512.

The question now becomes whether a weapon or firearm is an essential element of the crime by application of section 776.087(l)(b), Florida Statutes (2001):

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element,^[] and during the commission of such felony the defendant carries, displays, or uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified ... [i]n the case of a felony of the second degree, to a felony of the first degree.

(Emphasis added).

Thus, the plain meaning of the modifier “essential” is at issue. Again, since the term “essential” is likewise, not defined in the statute, this court must look to the dictionary to determine the meaning of that term. The American Heritage Dictionary of the English Language 469 (4th ed.2000), defines “essential” as “basic or indispensable; necessary.” Id. According to Black’s Law Dictionary 546 (6th ed.1990), “essential” means indispensably necessary, requisite.

If the reasonable and obvious implications of the word “shoot,” as used in the statute, are that one must use a firearm or other weapon to shoot or fire a missile (itself a weapon), then the reasonable and logical interpretation of the statutory language is that a weapon or firearm is indispensably necessary or a basic requisite for the commission of the felony enumerated in section 790.19, Florida Statutes (2001). Thus, the use of a weapon or firearm clearly becomes an essential element of that felony.

Accordingly, since the unambiguous plain language of both statutes is controlling and this court cannot abrogate legislative power, I would reverse on that basis.

      . The elements of the subject crime are derived from the statutory definition of section 790.19, Florida Statutes (2001). See § 790.19, Fla. Stat. (2001); Reynolds v. State, 842 So.2d 46 (Fla.2002).

      . I do not maintain that the weapon at issue here was the projectile/missile. The weapon at issue was the firearm. Nowhere in the record did the defendant, in raising his objection, ever state that the weapon in question was the missile/projectile. Since the trial court was not afforded an opportunity to address it, the defendant did not preserve this issue for appeal. See Cornwell v. State, 425 So.2d 1189 (Fla. 1st DCA 1983) (to satisfy the requirements of the contemporaneous objection rule, an objection must be specific enough to inform the judge of the alleged error and to preserve the issue for intelligent review on appeal).


author: MAY, J.

text:
    Edward HUGHES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D05-529, 4D05-530, 4D05-701.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his sentences on violations of community control. He argues the trial court erred in failing to give him credit for the time served on community control before the violations. We agree and reverse.

On July 28, 2004, the defendant entered a plea of nolo contendré in case number 04-8197 to possession of cocaine and drug paraphernalia. On the same day, the defendant entered another plea of nolo con-tendré in case number 04-6005 to possession of cocaine and drug paraphernalia. In both cases, the trial court sentenced him to two years of community control followed by three years of drug offender probation.

The defendant began his community control sentences on July 28, 2004. On October 28, 2004, the State charged the defendant with new charges of possession of cocaine and drug paraphernalia in case number 04-17528. Three days later, affidavits of violation were filed in the two earlier cases.

On the two violations of community control and the new substantive charge, the trial court sentenced the defendant to 38.1 months in state prison followed by two years drug offender probation. The combined sentence was 62.1 months. The defendant appealed his sentences on the three cases. We consolidated the appeals.

After filing the notices of appeal, but before filing his initial briefs, the defendant filed a motion to correct sentencing error. He argued his 62.1 month sentence violated the statutory maximum sentence for possession of cocaine and asked the trial court to reduce his probationary term by 2.1 months. He also requested credit for the months served on community control prior to his violation. The trial court reduced the defendant’s sentence to 38.1 months in state prison followed by 21.9 months probation to conform to the 60-month maximum allowable sentence, but did not give the defendant credit for the time served on community control.

On appeal, the defendant continues to argue he is entitled to credit for the months served on community control. The State concedes the point. Our supreme court has stated:

In imposing a sentence following a revocation of probation, the combination of [new] sanctions imposed must not exceed the statutory maximum for the underlying offense. If the trial court includes probation as part of a sentence upon revocation of probation, the trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation- total more than the statutory-maximum for the underlying offense.

Waters v. State, 662 So.2d 332, 333 (Fla.1995) (quoting Bragg v. State, 644 So.2d 586, 587 (Fla. 1st DCA 1994)); see also Meader v. State, 665 So.2d 344 (Fla. 4th DCA 1995).

Possession of cocaine is a third degree felony for which the maximum term of imprisonment is five years. §§ 893.13(6)(a), 775.082(3)(d), Fla. Stat. (2004). His current sentences require him to serve 38.1 months in state prison followed by 21.9 months probation, totaling five years. However, the defendant has already served 91 days on community control. The defendant must be given credit for those 91 days.

Reversed and Remanded.

STONE and FARMER, JJ., concur.


author: PER CURIAM.

text:
    Anthony Eugene HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-179.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Anthony Eugene Hope, was convicted of attempted robbery with a deadly weapon and aggravated battery with a deadly weapon. He was sentenced to two consecutive life sentences. Appellant argues that the trial court erred in denying his motion for judgment of acquittal. We affirm the convictions.

Appellant also argues and the state concedes that it was improper for the trial court to sentence appellant to consecutive life sentences. In State v. Parker, 812 So.2d 495 (Fla. 4th DCA 2002), a case in which section 775.087, Florida Statutes (2002), the 10-20-Life enhancement statute, was applied, this court held:

As the supreme court explained in [State v.] Christian, [692 So.2d 889 (Fla.1997)], the stacking of minimum mandatory terms of imprisonment is impermissible where the offenses arise from a single criminal episode and the defendant does not fire the weapon at more than one person.... See Christian, 692 So.2d at 890-91.

Parker, 812 So.2d at 498. Under the facts of this case, there was only one criminal episode and the weapon was fired at only one person. We therefore remand this case for resentencing.

Affirm Convictions; Remand for Resen-tencing.

WARNER, GROSS and HAZÓURI, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Michael DIBARTOLO, et al., Respondents.
    Nos. 4D04-3375, 4D04-3377, 4D04-3379.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for petitioner.
    Ira D. Karmelin, West Palm Beach, for respondents.
   PER CURIAM.

Affirmed. See Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006).

GUNTHER, STONE and MAY, JJ., concur.


text:
    Willie BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1300.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Willie Butler, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to refile in the trial court a timely and verified motion for posteonviction relief with original signature, and which otherwise comports with the requirements of Florida Rule of Criminal Procedure 3.850(c). See Lawson v. State, 754 So.2d 86 (Fla. 4th DCA 2000); see also McNeil v. State, 676 So.2d 48 (Fla. 1st DCA 1996).

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


text:
    Joseph W. GORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4604.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Joseph Gorman was charged with driving while license suspended (DWLS) because of an event occurring on August 1, 2002. The DWLS statute was enacted by chapter 98-223, Laws of Florida, which was later codified as section 322.34(6)(b), Florida Statutes. He pleaded no contest, and the trial court sentenced him on the violation. He appeals from the conviction. We accept the State’s concession of error.

The supreme court held chapter 98-223 invalid as violating the single subject rule. Fla. Dep’t of Highway Safety and Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003); see also Art. III, § 6, Fla. Const. Only those defendants falling within the period of the invalidity are entitled to relief. Gillman v. State, 860 So.2d 1099, 1100 n. 1 (Fla. 1st DCA 2003) (holding that only defendants who committed the offense from July 1, 1998, until the effective reenactment on May 21, 2003, are entitled to relief under Critchfield); see also Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (following Gillman). Because Gor-man’s offense falls within the period of invalidity, he is entitled to the benefit of Critchfield. We therefore reverse only his DWLS conviction and remand for the entry of an appropriate order consistent with Critchfield.

POLEN, FARMER and GROSS, JJ., concur.


author: WALLACE, Judge.

text:
    M.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-145.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant;
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

M.S., a juvenile, appeals from the disposition order that adjudicated him delinquent for committing an aggravated battery and that departed from the recommendation of the Department of Juvenile Justice (the Department) concerning the restrictiveness level most appropriate for him. M.S. raised three issues on appeal: two that addressed the trial court’s finding of guilt and adjudication of delinquency and one that addressed the disposition order and the trial court’s departure by committing him to a moderate-risk-level residential program. We affirm without further comment the trial court’s finding of guilt and adjudication of delinquency. However, because we find that the trial court departed from the Department’s recommendation concerning the restrictiveness level without stating sufficient reasons for the record, we reverse the disposition order and remand for a new disposition hearing.

At M.S.’s trial for aggravated battery, the trial court found him guilty as charged and ordered the Department to complete a predisposition report before the disposition hearing. In its report, the Department recommended “probation with house arrest” and additional sanctions, including “sanctions that would address [M.S.’s] issues with anger.” The trial court departed from the Department’s recommendation and instead committed M.S. to a moderate-risk-level residential program. The trial court stated:

The seriousness of this incident and the serious injuries sustained obviously aggravate the situation.
Per the [Department’s] expert evaluation that was done in this case, you do have a history of anger as you know. And you’ve dealt with that before in counseling sessions. You do have prior burglaries and thefts although those were dealt in a diversion aspect.... So this isn’t your first brush with the law. [The Department’s] recommendation is well intentioned. Reasonable people can differ, but it is not in line with their own expert evaluation. I do not believe that probation is appropriate.... [I]t just doesn’t recognize the seriousness of this....
..: There will be a moderate level commitment..

M.S. filed a motion to correct the disposition order, which the trial court denied. In its order denying M.S.’s motion, the trial court found that it had “provided the following reasons” for departing from the Department’s recommendation:

1. Serious injury occurred (the result of an intentional stabbing).
2. Although diverted, the child had been charged previously with two separate incidents, a prior burglary and a prior theft.... Diversion programs where a child’s needs are addressed in the community can be analogized to the concept of probation, and diversion was not sufficient to teach the child to not engage in criminal activity.
3. The child has a history of anger that was not successfully treated in outpatient counseling.

A trial court may not depart from the Department’s recommendation simply because it does not agree with the Department’s assessment. X.W. v. State, 903 So.2d 318, 320 (Fla. 2d DCA 2005). However, a trial court may depart from the restrictiveness level recommended by the Department if it “state[s] for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.” § 985.23(3)(c), Fla. Stat. (2003). The trial court “must ‘reference the characteristics of the restrictiveness level vis-a-vis the needs of the child.’ ” A.J.V. v. State, 842 So.2d 1027, 1029 (Fla. 2d DCA 2003) (quoting P.R. v. State, 782 So.2d 911, 913 (Fla. 5th DCA 2001)).

Although the trial court gave three reasons for its departure from the Department’s probation recommendation for M.S., the reasons failed to address why the restrictiveness level the trial court selected would better serve M.S.’s needs. See X.W., 903 So.2d at 320 (stating, “The focus of the disposition should be on the child’s needs.”); N.B. v. State, 911 So.2d 833, 836 (Fla. 1st DCA 2005) (reversing a departure from the Department’s recommendation because the trial court did not explain why the child “should be placed in a ... residential facility rather than on probation”); E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002) (reversing a departure because the trial court failed to “set forth its reasons in the context of the needs of the child”). Specifically, the trial court indicated its concern about M.S.’s history of anger but did not state why his commitment to a moderate-risk-level residential program would address M.S.’s needs differently than the Department’s recommendation that included “sanctions that would address [M.S.’s] issues with anger.” The trial court also failed to explain how the features of the moderate-risk-level residential program would address M.S.’s other needs.

Accordingly, we affirm the delinquency adjudication but reverse the disposition order and remand for a new disposition hearing. For the guidance of the trial court and the parties on remand, we note that the trial court’s rationale for departing from the Department’s recommendation must be supported by evidence in the record or an appropriate stipulation. See J.A.R. v. State, 923 So.2d 604 (Fla. 2d DCA 2006).

Affirmed in part, reversed in part, and remanded.

WHATLEY and CASANUEVA, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Nicholas Shawn HILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-449.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Nicholas Shawn Hill appeals the revocation of his probation and resulting sentence for two counts of lewd battery. We affirm the order revoking Hill’s probation but reverse Hill’s sentence and remand for a new sentencing hearing.

We first note that the State presented competent, substantial evidence that Hill willfully and substantially violated his probation. As to Hill’s argument concerning an alleged discovery violation, our review of the record reflects that any violation was harmless. See Scipio v. State, 928 So.2d 1138, 1141, 2006 WL 345025 (Fla. Feb. 16, 2006) (citing State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)).

Hill correctly contends that the trial court erred in sentencing him to over fifteen years’ imprisonment when the trial court was under the mistaken belief that Hill was not eligible for youthful offender sentencing. Pursuant to a plea agreement, Hill was originally sentenced as an adult to a year and a day in prison, to be followed by ten years’ probation. The trial court believed that because Hill was originally sentenced to prison as an adult, the court was foreclosed from considering a youthful offender sentence on violation of probation.

Upon revocation of a defendant’s probation, a trial court is “free to impose any sentence it may have originally imposed before placing him on probation.” Means v. State, 779 So.2d 282, 283 (Fla. 2d DCA 1998); see also § 948.06(2)(b), Fla. Stat. (2004) (providing, upon revocation of probation, for the trial court to “impose any sentence which it might have originally imposed before placing the probationer on probation”). The Fourth District cited section 948.06(2)(b) and Means. in Williams v. State, 889 So.2d.969 (Fla. 4th DCA 2004). There, the defendant was placed on probation as an adult, and upon revocation of probation, “the trial court was under the mistaken belief that it could not impose a youthful offender sentence because the original probation was not a youthful offender sentence.” Id. at 970. The Fourth District reversed and remanded for the trial court to consider whether to impose a youthful offender sentence but noted that the trial court remained “free to re-impose the existing sentence.” Id.

Thus, we reverse Hill’s sentence and remand for a new sentencing hearing at which the trial court should consider youthful offender sentencing as one of its options.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and KELLY, JJ„ Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Albert Steven COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-637.
    District Court of Appeal of Florida, Second District.
    May 10, 2006.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Albert Steven Coleman challenges his judgments and sentences for one count of delivery of cocaine, two counts of possession of cocaine, and one count of possession of drug paraphernalia. We affirm his convictions. However, we reverse his habitual felony offender sentences on the two counts of possession of cocaine.

Section 775.084(l)(a)(3), Florida Statutes (2003), precludes sentencing a defendant as a habitual felony offender for violating section 893.13 relating to purchase or possession of a controlled substance. See Virgil v. State, 884 So.2d 373, 373-74 (Fla. 2d DCA 2004). Mr. Coleman apprised the trial court of the sentencing error in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days; therefore, the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B) and (b)(2)(B); O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003).

Affirmed in part; reversed in part, and remanded for resentencing on the two possession of cocaine counts.

SALCINES and LaROSE, JJ., Concur.


author: FARMER, J.

text:
    Ronald FESTA, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-279.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Garrett Elsinger, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for respondent.
   FARMER, J.

Defendant petitions for a writ of prohibition against being retried on a charge of child abuse, arguing that his exoneration on appeal from an earlier conviction bars any further trial. We agree, grant the writ and discharge him. In so doing, we find prohibition a proper remedy to assert a right against double jeopardy and conclude that we are not bound by the direction in the former appeal to the effect that any retrial would be limited to the charge of child abuse.

Defendant and a co-defendant were charged with aggravated child abuse. § 827.03(2)(b), Fla. Stat. (2005). This statute makes it a first degree felony to “[wjillfully torture[ ], maliciously punish[ ], or willfully and unlawfully eage[ ]. a child.” Id. At the jury trial, neither side asked to have the jury instructed on any lesser included offense. Both were found guilty as charged.

On appeal we held that the trial court erred in denying defendant’s motion for judgment of acquittal because there was insufficient evidence as a matter of law to support his conviction for aggravated child abuse, charged and tried solely under the malicious punishment alternative. We also held that the court erred in prohibiting defendant from discovering records relevant to his defense. We remanded with instructions that — because the evidence was not sufficient to support the charge of aggravated child abuse — at any retrial defendant could be tried for no offense other than simple child abuse. Festa v. State, 901 So.2d 1026 (Fla. 4th DCA 2005).

On remand the State filed a new information based on the same incident, this time charging defendant with simple child abuse. § 827.03(l)(b), Fla. Stat. (2005) (third degree felony to do “[a]n intentional act that could reasonably be expected to result in physical or mental injury to a child”). Defendant moved to dismiss and argued that at the previous trial he did not request any instruction on a lesser included offense, electing the all-or-nothing strategy in hopes of an acquittal. The record shows that the State did not object to defendant’s request that no lesser included offenses be submitted to the jury. There are no category 1, necessarily lesser included offenses to aggravated child abuse. See Fla. Std. Jury Instr. (Crim.) 16.1, Aggravated Child Abuse (simple child abuse is a permissive, category 2, lesser included offense). Moreover the State did not request an instruction as to the permissive, category 2, lesser included offense of simple child abuse.

Defendant sought dismissal of the charge of simple child abuse as a “related offense” under rule 3.151 because a retrial would subject him to double jeopardy. He argued that when no lesser in-eluded offenses are submitted to the jury for determination in a previous trial resulting in a conviction on the principal charge, the accused cannot then be retried on any lesser included offense when the conviction is reversed because of the insufficiency of the evidence. See Webster v. State, 549 So.2d 784, 785 (Fla. 4th DCA 1989) (holding that defendant could not be retried on same charge or “any lesser included offenses if jury was not charged [ ]on those lesser included offenses”). The State argued that at the previous trial it was “precluded” from a jury instruction on child abuse because it was not a category 1, lesser included offense. Defendant replied that the rule makes all permissive, category 2, lesser included offenses “related offenses” as well.

We find the answer to these arguments primarily in two supreme court decisions. In State v. Johnson, 601 So.2d 219 (Fla.1992), the court was asked to consider the following issue:

“Is the state entitled to have jury instructions given on Category 2 included lesser offenses, in addition to Category 1 necessarily included lesser offenses, in a case where the defendant requests that no such instructions be given and knowingly and intelligently waives his right to such instructions?”.

601 So.2d at 219. In other words, the issue was whether the State may require an instruction on a category 2, permissive lesser included offense simply by asking for it. Answering the question in the affirmative, the court explained:

“We can think of no reason why the rule should be different depending on the nature of the lesser included offense. Providing the charging document and the evidence support the charge, the conviction of a permissive lesser included offense carries the same weight as a conviction of a necessarily included offense. Thus, we hold that the State has a right to insist on the giving of instructions on permissive lesser included offenses over the defendant’s objection.” [e.s.]

601 So.2d at 220. Hence the State is incorrect in arguing that it had no right to an instruction on the permissive lesser included offense of child abuse at the first trial. It did have the right under Johnson to request this category 2, lesser included, related offense instruction. Its election not to do so demonstrates that it, too; was employing the same all-or-nothing strategy asserted by defendant.

In State v. Gibson, 682 So.2d 545, 546 (Fla.1996), the court held that “lesser offenses not presented to the original jury cannot be prosecuted by the State after a conviction has been vacated” on appeal. In that case the appellate reversal was not based on the insufficiency of the evidence but instead because attempted felony murder “was no longer a crime in Florida.” 682 So.2d at 546 (relying on State v. Gray, 654 So.2d 552 (Fla.1995)). The court noted that in State v. Wilson, 680 So.2d 411 (Fla.1996), it had held that when an attempted felony murder conviction is vacated the proper remedy is a retrial on any lesser included offense that was “instructed on at the original trial." [e.s.] 682 So.2d at 546. The court explained:

“We conclude that our use of the phrase ‘any lesser offense instructed on at trial’ was meant to indicate that those lesser offenses not instructed at trial could not be retried. We reaffirm that statement from Wilson and hold that lesser offenses not presented to the original jury cannot be prosecuted by the State after a conviction has been vacated on the authority of Gray.” [e.s.]

Id. The court made clear that its holding was “dictated” by rule 3.151(c), whose purpose was to protect defendants from multiple prosecutions arising from the same conduct. 682 So.2d at 546-47. Therefore the rule applicable to this case is: “those lesser offenses not instructed at trial cannot be retried.” Because simple child abuse was not submitted to the jury at the previous trial, it follows that defendant cannot now be forced to stand trial on that charge. Both sides went for all or nothing. One of them, the State, is left with nothing.

Writ Granted; Charge Dismissed; Defendant Discharged.

KLEIN and SHAHOOD, JJ., concur.

      . See Gallo v. State, 491 So.2d 541, 543 (Fla.1986) (holding that “for the waiver of lesser included offense instructions to be effective, the state had to consent to the waiver”), receded from on other grounds in Gould v. State, 577 So.2d 1302 (Fla.1991) (holding that Gallo could not be interpreted to mean that all "permissive lesser-included offenses are necessarily included lesser offenses”).

      . See Fla. R. Crim. P. 3.151(c) (Dismissal of Related Offenses after Trial. When a defendant has been tried on a charge of 1 of 2 or more related offenses, the charge of every other related offense shall be dismissed on the defendant's motion unless a motion by the defendant for consolidation of the charges has been previously denied, or unless the defendant has waived the right to consolidation, or unless the prosecution has been unable, by due diligence, to obtain sufficient evidence to warrant charging the other offense or offenses.).

      . The State also argued that because our reversal was not based solely on the insufficiency of the evidence defendant cannot claim double jeopardy. Here the State argues that a reversal on dual grounds — one for denying defendant access to evidence and the other for insufficiency of the State's evidence— should not be deemed a reversal for insufficiency of the evidence. We reject this contention without further comment. We also reject the State's argument that our remand instruction in the previous appeal limiting any trial to simple child abuse precludes, on law of the case grounds, the double jeopardy argument now being made. See Sigler v. State, 881 So.2d 14, 17 (Fla. 4th DCA 2004) (illegal conviction well within the concept of exceptional circumstances and manifest injustice to require relaxation of law of case).

      . See Fla. R. Crim. P. 3.151(a) (Related Offenses. For purposes of these rules, 2 or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on 2 or more connected acts or transactions.).

      . On the co-defendant's appeal, another panel held that the evidence was not sufficient to support the charge and reversed. Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). Unlike the present case, however, that panel directed the trial court to enter judgment on the lesser included offense of child abuse, relying on a statute. See § 924.34, Fla. Stat. (2005) (“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.”). In Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under similar circumstances that section 924.34 is no longer valid when a factual issue critical to the lesser included offense was not itself submitted to the jury at trial. Because we have no way of knowing from the record in this case whether the co-defendant also waived all instruction on lesser included offenses, we express no opinion as to whether, because of our disposition in this case, the outcome in the co-defendant’s case should be changed.


author: WARNER, J.

text:
    Louis Blaine TROUT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2693.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The issue presented in this appeal from a sentence is whether appellant is entitled to credit for time served in jail in another county on the pending charges. The trial court found that he was not actually arrested on the current charges while in custody in the other county because the paperwork on the arrest was never completed, and the court therefore denied jail credit. Relying on the statutory provisions regarding arrest, we hold that appellant was arrested on the charges when the officer informed him of his arrest on the charges. Therefore, appellant is entitled to jail credit for his time in jail since his arrest.

Appellant, Louis Trout, was convicted and sentenced in 2002 in St. Lucie County for felony battery and resisting an officer without violence. He was sentenced to eight months in jail followed by four years probation for the felony battery and a concurrent term of eight months in jail for the second charge. He was released from jail in March 2003.

On March 4, 2004, an affidavit of violation of probation was filed and a warrant for Trout’s arrest was issued based upon several violations of probation. An amended affidavit and warrant issued on April 7.

Trout was arrested in Martin County on May 30, 2004. He was stopped in his vehicle by a Stuart police officer. When the officer ran his license, dispatch informed him of the St. Lucie warrant for Trout’s arrest for violation of probation. The officer arrested Trout on the warrant and placed him in the police vehicle. He also filled out an arrest affidavit, indicating Trout’s arrest pursuant to the St. Lucie warrant. The affidavit lists an arrest on “warrant no. 013204CF out of St. Lucie County for felony battery.”

At the same time, Trout was also arrested for driving under the influence (“DUI”), leaving the scene of an accident with property damage, and refusing to submit to a breath test. Trout remained in the Martin County jail and was sentenced on the Martin County charges in December 2004.

Trout was brought from Martin County to the St. Lucie County jail in April 2005 where he was booked in on the violation of probation warrant. An April 12th arrest affidavit in St. Lucie County states that Trout was arrested on the same warrant number as contained in the arrest affidavit executed in Martin County.

Trout admitted the violation charges, which by then had been amended to include his 2004 Martin County violations of law. The prosecutor agreed to a sentence of twenty-four months in the department of corrections. At the sentencing hearing in June 2005, Trout requested jail credit for the one year he had served in Martin County after his May 2004 arrest. The trial court denied this credit, because it found that the paperwork was never completed on the violation of probation, and the Martin County jail had not booked Trout into the jail on that charge. Trout appeals this denial of jail credit.

Section 921.161(1), Florida Statutes, provides:

(1) A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence;

A defendant is entitled to jail credit for time spent in a county jail when he has been arrested pursuant to a warrant from another county. See Gethers v. State, 838 So.2d 504 (Fla.2003); Daniels v. State, 491 So.2d 543 (Fla.1986); Norman v. State, 900 So.2d 702 (Fla. 2d DCA 2005). Gethers draws the distinction between execution of an arrest warrant and the issuance of a detainer by another county:

The difference between an executed warrant and a detainer is significant in these situations. A warrant is a “writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search, or a seizure.” Black’s Law Dictionary 1579 (7th ed.1999). An arrest warrant must be signed by a magistrate and conform to specific content requirements. See Fla. R.Crim. P. 3.121; [citations omitted]. A detainer, on the other hand, “is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” [citations omitted].

Id. at 507. The Gethers court held:

that absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.

Id. at 505 (emphasis supplied).

Section 901.04, Florida Statutes, provides for the direction and execution of a warrant:

Warrants shall be directed to all sheriffs of the state. A warrant shall be executed only by the sheriff of the county in which the arrest is made ... An arrest may be made on any day and at any time of the day or night.

Section 901.16, Florida Statutes, provides for the method of making an arrest with a warrant:

A peace officer making an arrest by a warrant shall inform the person to be arrested of the cause of, arrest and that a warrant has been issued ... The officer need not have the warrant in his .or her possession at the time of the arrest but on request of the person arrested shall show it to the person as soon as practicable.

The two statutory sections show that a warrant may be executed merely by a peace officer informing the person to be arrested of the cause for arrest and that a warrant has been issued. The officer does not have to have physical possession of a copy of the warrant. Id.; Johnson v. State, 660 So.2d 648 (Fla.1995).

In this case, the officer actually arrested Trout on the violation of probation arrest warrant when Trout was stopped in his vehicle. The officer filed an arrest affidavit attesting to his arrest. Contrary to the statement by the trial judge, the statute requires no paperwork to effect an arrest pursuant to the warrant. See § 901.16, Fla. Stat. Thus, as the arrest warrant was executed, Trout was entitled to credit for all time spent in the Martin County jail while arrested on the violation of probation charge.

We therefore reverse Trout’s sentence and remand with directions to the trial court to credit Trout with jail time served in the Martin County jail from the time of his arrest on the violation of probation arrest warrant.

GROSS and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    James J. DELLA RATTA, Appellant, v. Joseph M. DELLA RATTA and Faye C. Della Ratta, Appellees.
    No. 4D05-2932.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Thomas J. Ali of Kramer, Ali, Fleck, Hughes, Gelb & Bornstein, Jupiter, for appellant.
    Stephanie Reed Traband, Matthew Triggs and Bruce Gorman, Jr., of Pros-kauer Rose, LLP, Boca Raton, for appellee Joseph M. Della Ratta.
   GROSS, J.

James J. Della Ratta appeals from a final judgment dismissing with prejudice his two-count amended complaint for failure to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). The pleading sought (1) damages for “unjust enrichment,” and (2) the imposition of an equitable lien on a condominium apartment owned by appel-lees, Faye C. Della Ratta (James’s mother), and Joseph M. Della Ratta (James’s stepfather). We reverse, holding that the amended complaint adequately stated both causes of action.

In reviewing an order granting a rule 1.140(b)(6) motion to dismiss, this court’s “gaze is limited to the four corners of the complaint.” Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999). The facts alleged in the amended complaint must be accepted as true and all reasonable inferences are drawn in James’s favor. See id.

According to the amended complaint, appellees orally promised James that they would either convey the condominium to him as a gift or give him a right of first refusal to purchase the unit; estate planning considerations and tax consequences would determine the method of transfer. Appellees allowed James to occupy the condominium pending performance of their promises. Relying on appellees’ assurance that he would one day own the unit by gift or purchase, James relocated to Florida and resided in the condominium. From the time he moved into the unit until the filing of the amended complaint, James paid all the carrying charges on the unit, including real estate taxes, maintenance fees, association fees, insurance, utilities, maintenance, and repairs. On an annual basis, these charges approximated $8,000.00 to $10,000.00. In addition to these payments, James made capital improvements of $40,000.00 to the condominium; all these improvements were made with appellees’ knowledge and consent.

James claimed that the intent of the parties’ arrangement was to allow him to live in the unit pending his ultimate receipt of title by gift or purchase. When he offered to purchase the condominium, ap-pellee Joseph M. Della Ratta declined, indicating that he intended to sell the property to a third party.

The amended complaint sought two remedies — the imposition of an equitable lien on the condominium and an award of damages measured by “the value of the repairs and capital improvements” that James made to the unit.

“Whether the allegations of a complaint are sufficient to state a cause of action is a question of law.” K.M. v. Publix Super Mkts., Inc., 895 So.2d 1114, 1116 (Fla. 4th DCA 2005). “It follows that this court applies a de novo standard of review to an order dismissing a complaint for failure to state a cause of action; we must accept the allegations of the complaint as true, but do not defer to the trial court’s conclusions regarding the legal sufficiency of the allegations.” Id.

As to the unjust enrichment count, the trial court’s dismissal was based upon the fact that James’s claim was for compensation for services between a child and his parent; the court applied “the presumption of law [ ] that a parent is not bound to pay a child, though of full age, for services while living with said parent at home and as one of the family in the absence of proof of a prior special contract or an express or implied antecedent promise to compensate the child.” Fla. Nat’l Bank & Trust Co. of Miami v. Brown, 47 So.2d 748, 763 (Fla.1950); see also McLane v. Musick, 792 So.2d 702, 705 (Fla. 5th DCA 2001). The trial court dismissed the equitable lien count because there were no “allegations of fraudulent inducement.”

The trial court incorrectly applied the “family member presumption.” The amended complaint does not allege that James lived with appellees when he resided in the condominium, a fact essential to the application of the presumption.

The supreme court articulated the “family member presumption” in Mills v. Joiner, 20 Fla. 479, 1884 WL 2067 (1884). There, a daughter sued her father for payment for housekeeping services she performed for him and her mother in their home for almost ten years. During this time, she lived in the home with her parents. The daughter alleged that her father agreed to pay for her services. Seven years later, the father reneged on the deal. At trial, the court charged the jury that the daughter could not recover unless she proved “ ⅛ special contract or express promise that she was to be paid for her services.’ ” Id. at 492; Mills, 1884 WL 2067, at *4 (emphasis in original). The jury found for the father.

As to this jury charge, the supreme court reversed, holding that the daughter could recover damages if she established that either an express contract or a contract implied in fact existed between her and her father.

The law raises no presumption of a promise to enable a child to maintain an action against the father to recover compensation; but the reverse may be established by proof of either an express or implied contract. An implied contract being proven by facts and circumstance which show that both parties at the time the services were performed contemplated or intended pecuniary recompense. It is competent in such a case for a jury to infer a promise by the father from the surrounding circumstances. It is a presumption of law that the father is not bound to pay a child, though of full age, for services while living with him at home and as one of the family; but this presumption may be overcome by proof of a special contract express promise, or an implied promise; and such implied promise or understanding may be inferred from the facts and circumstances shown in evidence.

Id. at 492-93; Mills, 1884 WL 2067, at *4 (boldface supplied); see also Brown, 47 So.2d at 759, 763 (supreme court followed Mills in affirming the ruling that a daughter had not proved an express or implied contract that overcame the family member presumption, even though the daughter had rendered services to her mother for many years).

The “family member presumption” described in Mills applies to personal services that a child performs for a parent while living “at home with [the parent] and as one of the family.” Id. at 492; Mills, 1884 WL 2067 at *4. The amended complaint in this case did not plead this type of family relationship. James did not reside with appellees when he made the improvements described in the amended complaint. Also, James seeks reimbursement for the improvements he made to the condominium, not compensation for personal services rendered to appellees. Finally, even when the family member presumption is applicable, it may be overcome by proof of an express contract or a contract implied in fact. In this case, the family member presumption does not apply.

Count I of the amended complaint stated a claim for a contract implied in law, also known as “unjust enrichment.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (en banc). To state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a- benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Id.; see Magwood v. Tate, 835 So.2d 1241, 1243 (Fla. 4th DCA 2003). If proven, the facts stated in count I of the amended complaint would support an unjust enrichment claim.

The equitable lien count also should have survived the motion to dismiss. In Florida, an equitable lien is an appropriate remedy to prevent unjust enrichment between family members or those with close personal relationships. See Palm Beach Sav. & Loan v. Fishbein, 619 So.2d 267 (Fla.1993); Johnson v. Craig, 158 Fla. 254, 28 So.2d 696 (1947); Sonneman v. Tuszynski, 139 Fla. 824, 191 So. 18, 19-20 (1939). “An equitable lien ‘is a right granted by a court of equity, arising by reason of the conduct of the parties affected which would entitle one party as a matter of equity to proceed against’ certain property.” Epstein v. Epstein, 915 So.2d 1272, 1275 (Fla. 4th DCA 2005) (quoting Gables Racing Ass’n v. Persky, 148 Fla. 627, 6 So.2d 257, 263 (1942)). Such a lien “may be declared by a court of equity out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings.” Plotch v. Gregory, 463 So.2d 432, 436 (Fla. 4th DCA 1985). One circumstance “justifying the imposition of an equitable lien exists ‘when the claimant has furnished funds for the improvement of land with the knowledge and consent of the owner.’ ” Id. (citations and footnote omitted); see Frambach v. Dunihue, 419 So.2d 1115 (Fla. 5th DCA 1982).

On the equitable lien count, James relies on McLane, 792 So.2d at 702, a case that supports his contention that he stated a cause of action for an equitable lien.

In McLane, Howard McLane and Loretta Monroe cohabitated for a number of years with the understanding that they would marry and each would execute a will in favor of the other. Monroe died intestate before they married. McLane sought reimbursement from Monroe’s estate for his services and money he paid to support her property. Monroe and McLane first lived together in Monroe’s home in the Florida Keys and then moved to Pierson, Florida, where Monroe purchased ten acres and a mobile home. The couple had a joint checking account with right of sur-vivorship and paid for all their expenses and purchases out of the account. Both contributed funds to the account. McLane bought equipment for a land clearing business he started and used this equipment to improve Monroe’s property by putting in a road and grading it. He also paid all of Monroe’s medical bills out of the joint account and cared for her until she died. Id. at 704-05.

The trial court granted summary judgment against McLane on all his claims.

In count I, McLane sought monies for his personal care of Monroe during her terminal illness. When asked if he did this with the expectation of being paid, he said he would have rendered the services even if he knew he would not be paid. In count II, he sought reimbursement for the monies he paid for her medical bills which were paid out of their joint account. The fifth district affirmed the summary dismissal of these two counts, holding that in light of the couple’s “close family-like relationship,” there was insufficient evidence to “imply a contract for compensation.” Id. at 705.

The second aspect of McLane is pertinent to the equitable lien count in this case. In two other counts of his complaint, McLane sought reimbursements for improvements he made to Monroe’s property in Pierson. He alleged that he was fraudulently induced to make the improvements by Monroe’s promise to leave the property to him. The district court found that these allegations were sufficient to permit a court to impose an equitable lien on the property to prevent unjust enrichment. Id. at 705-06.

Appellees attempt to distinguish McLane by pointing out this case involves no allegations of fraud. However, fraud is not the only basis for imposing an equitable lien. In Fishbein, the supreme court “clarified that equitable circumstances other than fraud or misrepresentation, including the prevention of unjust enrichment, are proper grounds for imposing” an equitable lien. Spridgeon v. Spridgeon, 779 So.2d 501, 502 (Fla. 2d DCA 2000); see Plotch, 463 So.2d at 436 n. 1.

The unjust enrichment claim in count I of the complaint was an action at law. The same grounds that would support a claim for unjust enrichment as a contract implied in law would also justify the imposition of an equitable lien.

In the light most favorable to James, the amended complaint states a cause of action for unjust enrichment supporting both an action at law for damages and an equitable lien for the value of the repairs and capital improvements. See Sonneman, 139 Fla. at 829-32, 191 So. at 20-21.

We reverse and remand to the trial court for further proceedings.

WARNER and HAZOURI, JJ., concur.

      1. In WPB, Ltd. v. Supran, 720 So.2d 1091, 1092 (Fla. 4th DCA 1998), we explained that a "special contract"
      is one with peculiar provisions or stipulations not found in the ordinary contract relating to the same subject matter. These provisions are such as, if omitted from the ordinary contract, the law will never supply-
      (citing 17 C.J.S. Contracts § 10 (1963)). "A special contract is always an express contract, 'one whose provisions are expressed and not dependent on implication.' ” Id. (citing Fitz

        patrick v. Vermont State Treasurer, 144 Vt. 204, 475 A.2d 1074, 1077 (1984)).

      . In Florida, all implied contract actions, including unjust enrichment,
      were part of the action of assumpsit, which was an action at law under the common law. E.g., Boyce Constr. Corp. v. District Bd. Of Trustees, 414 So.2d 634, 637, n. 1 (Fla. 5th DCA 1982); Carter v. Suggs, 190 So.2d 784, 788 (Fla. 1st DCA 1966). Although some Florida courts have described quasi contracts as being "equitable in nature,” "e.g., Gene B. Glick Co., Inc. [v. Sunshine Ready Concrete Co.], 651 So.2d 190 [(Fla. 4th DCA 1995)], the term has been used in the sense of 'fairness,' to describe that quality which makes an enrichment unjust, and not as a reference to the equity side of the court.”

        Commerce P’ship, 695 So.2d at 390.


text:
    George BRIDGES, Appellant, v. CITY OF BOYNTON BEACH, Florida, Appellee.
    No. 4D05-3117.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Gordon R. Leech of Samster, Konkel & Safran, LLC, Milwaukee, WI, for appellant.
    Michael T. Burke and Cindy A. Williams of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

Appellant, a probationary police officer, brought a complaint against his employer, the City of Boynton Beach, alleging that the City violated his rights under the Whistle-blower’s Act when the City terminated him in retaliation for a protected communication he made regarding a superior officer. The trial court dismissed his suit on statute of limitations grounds. He contends that because he was entitled to first utilize the appeal procedure in the collective bargaining agreement between the police union and the City, he filed his complaint within the applicable statute of limitations. We affirm, because he did not have any appeal rights under the collective bargaining agreement, and applying the correct statute of limitations, he filed his complaint four days late.

Appellant, Bridges, was hired as a full-time police officer for the City. According to the City’s Personnel Policy Manual, Bridges was considered a probationary employee until he served for a year and had no administrative remedies if terminated within that year. The Chief of Police terminated Bridges just short of the expiration of his probationary period. Bridges attempted to appeal his termination through the appeal procedure of the collective bargaining agreement (“CBA”) between the City and its police union. However, the City refused to process the appeal or participate in arbitration, because it maintained that, as a probationary employee, Bridges was not entitled to invoke the procedures of the CBA.

Bridges then filed his action pursuant to the Whistle-blower’s Act, 184 days after he was terminated from employment. Section 112.3187(8)(b), Florida Statutes, provides that if the employer has not esr tablished administrative procedures for handling such complaints, the employee must bring suit within 180 days of termination. The City moved to dismiss the complaint, contending that because Bridges was a probationary employee, he had no administrative remedies and therefore was required to file his complaint within 180 days, which he failed to do. Bridges argued that he was entitled to the administrative provisions of the CBA and thus was not governed by the 180-day statute of limitations. The trial court granted the motion to dismiss, and Bridges appeals. We affirm, concluding that Bridges was not entitled, to the administrative provisions of the CBA, thus requiring him to bring his action within 180 days.

The CBA defined the bargaining unit in Article 2 as all full-time sworn police officers. The parties do not dispute that the plaintiff was a full-time sworn police officer at the time the City terminated his employment. Further, the agreement itself does not contain any provisions related to the probationary status of employees.

Article 32 of the CBA provides as follows:

ARTICLE 32
DEPARTMENTAL POLICIES, RULES AND REGULATIONS
Section 1. It is agreed and understood that the Police Department currently has policies, rules and regulations governing employment. The formulation, amendment, revision and implementation of any rule shall not be arbitrary or capricious. In the event of a conflict between the rules and specified provisions of this Agreement, the Agreement shall control.

(Emphasis supplied).

Article 34 of the CBA provides that all bargaining unit members are covered under the terms of the collective bargaining agreement and the City’s Personnel Policy Manual:

ARTICLE 34
COMPLETE AGREEMENT AND WAIVER CLAUSE
This Agreement is the complete Agreement between the parties... All bargaining unit members are covered under the terms of this Agreement and the City’s Personnel Policy Manual and not under any Civil Service Rule/Regulation and heretofore in existence.

(Emphasis supplied).

Article 27 of the agreement classifies termination as major- discipline and provides for an appeal of major disciplinary action to an arbitrator.

The City’s Personnel Policy Manual defines a probationary employee as “any employee who is serving in a new position either by appointment, promotion, demotion, or reclassification.” The Personnel Policy Manual further defines “Probationary Period” as “a period of twelve (12) months. During this period an employee may be discharged, demoted, or suspended without warning or statement of cause.” Additionally, the manual provides that a probationary employee is subject to termination without cause and has no right to appeal a termination or disciplinary action. With respect to the positions covered by the manual’s policies, the manual states:

These policies shall apply to all non-contract employees. These policies apply to union employees only when they are incorporated in the union employees [sic] collective bargaining agreement, and have been ratified by the City Commission and the bargaining unit. These policies apply to employees with individual contracts only if incorporated by reference in the employee’s contract.

The City’s Ordinance No. 098-06 adopts the Personnel Policy Manual and makes it a part of the City’s ordinances. A later ordinance applies the policies to bargaining unit members when incorporated into the collective bargaining agreement.

Bridges contends that because he was a full-time sworn police officer, he was a member of the collective bargaining unit and had the right to appeal his termination to an arbitrator as provided in Article 27 of the CBA. Although the Personnel Policy Manual does not provide for any right of appeal, Bridges argues that the CBA trumps the Personnel Policy Manual to the extent that the provisions of the manual are inconsistent with the rights granted in the collective bargaining agreement. However, we disagree with his construction of those agreements.

Collective bargaining agreements are interpreted under general principles of contract law. See, e.g., In re Murray, 166 Vt. 198, 689 A.2d 463, 466 (1997). Bridges’ argument centers on Article 32 of the CBA which states that “[i]t is agreed and understood that the Police Department currently has policies, rules and regulations governing employment” and further provides that “[i]n the event of a conflict between the rules and specified provisions of this Agreement, the Agreement shall control.” Bridges therefore argues that the City’s Personnel Policy Manual applies only to the extent that it does not conflict with the CBA.

We disagree with Bridges’ argument that Article 32 is designed to “trump” the provisions of the City’s Personnel Policy Manual. Article 34 of the CBA expressly adopted the City’s Personnel Policy Manual by stating “all bargaining unit members are covered under the terms of this Agreement and the City’s Personnel Policy Manual.” The “conflict” provision of Article 32 does not directly reference the City’s Personnel Policy Manual, but instead refers to departmental rules and policies more generally. It is a well-settled principle of contract law that “a contract provision specifically dealing with a particular subject matter controls over a provision generally dealing with that same subject matter.” Aucilla Area Solid Waste Admin. v. Madison County, 890 So.2d 415, 416 (Fla. 1st DCA 2004). Applying this principle to the case at bar, the express adoption of the City’s Personnel Policy Manual in Article 34 of the CBA is controlling over the general reference to the CBA prevailing over inconsistent departmental rules and policies.

Because the City’s Personnel Policy Manual permits the termination of probationary employees without a right of appeal, the City provided no administrative right of appeal. Therefore, under the statute of limitations contained in the Whistle-blower’s Act, Bridges had to file his action within 180 days of his termination. . He failed to 'do so, and the trial court correctly dismissed his suit on statute of limitations grounds.

Affirmed.

GROSS and HAZOURI, JJ., concur.


text:
    Robert TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1171.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order that denied his amended motion to withdraw his' plea. He argues that the plea was involuntary because both his trial counsel and the trial court failed to inform him of the three-year mandatory minimum sentence. We agree and reverse.

The State charged the defendant with multiple counts including trafficking. The defendant entered a plea of no contest to the charges based upon the State’s offer of 50.6 months to resolve multiple cases. After sentencing, the defendant moved pro se to withdraw the plea on the basis that it was entered involuntarily because his special public defender did not advise him of the three-year mandatory minimum sentence. After a long period of inactivity and without an evidentiary hearing, the trial court denied the motion.

The defendant maintains his position on appeal that his plea was involuntary because both his counsel and the trial court failed to inform him of the three year mandatory minimum sentence. He also argues that despite the fact that the written plea contained language advising him of the mandatory minimum sentence, the trial court failed to conduct a sufficient inquiry to determine if he was able to comprehend the written plea form. The State responds that the trial court did not abuse its discretion when it denied the motion and that the defendant’s reliance on Thornton v. State, 747 So.2d 439 (Fla. 4th DCA 1999), is misplaced. The State also argues that it is irrelevant whether trial counsel informed the defendant of the three-year mandatory minimum because he was informed of it on the record by the State when it advised the court that the charge carried a three-year mandatory minimum.

We review an order on a motion to withdraw a plea for abuse of discretion. Hill v. State, 895 So.2d 1122, 1123 (Fla. 4th DCA 2005). When the motion is filed after sentencing, we will reverse only when a manifest injustice has occurred. Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003).

One of the authorized bases for bringing a motion to withdraw plea after sentencing is when the plea was entered involuntarily. Fla. R.Crim. P. 3.170(1); Fla. R.App. P. 9.140(b)(2)(A)(ii)e. “A mandatory minimum sentence is a direct consequence of a defendant’s plea, and the failure to advise a defendant of this consequence renders a plea involuntary.” Thornton, 747 So.2d at 441.

Under rule 3.170(1), Florida Rules of Criminal Procedure, the trial court is not required to hold an evidentiary hearing on a motion to withdraw plea. However, when the record fails to conclusively refute the defendant’s allegation of entitlement to relief, due process requires an evidentiary hearing. Snodgrass, 837 So.2d at 509.

The colloquy in this record fails to conclusively refute the defendant’s allegation that his lawyer failed to advise him of the three-year mandatory minimum sentence. See Cherry v. State, 837 So.2d 597, 598 (Fla. 2d DCA 2003). While the record reflects a comment by the State to the court concerning the three year mandatory minimum, it is insufficient to establish that the defendant was informed of that fact by his counsel. Not only is that allegation not refuted, the record reveals that the trial court also failed to determine if the defendant understood the nature of the charges against him, the mandatory minimum sentence, and the maximum sentence possible.

The State argues that because the defendant signed a written Acknowledgement of Plea and Waiver of Rights form containing the three-year mandatory minimum sentence, he had notice of the terms of the agreement rendering his plea voluntary. However, the trial court made no effort to determine if the defendant could read the form, had the requisite level of education or mental capacity to understand the form, or whether the form had been read or explained to him. See Snodgrass, 837 So.2d at 509 (finding that the existence of a signed plea agreement was relevant evidence of the voluntariness of the defendant’s plea but it was not disposi-tive). “ ‘[A] judge using a preprinted rights form as a part of a plea colloquy must orally verify that the defendant has intelligently consumed the written information contained within it.’ ” Thornton, 747 So.2d at 441 (quoting Hen Lin Lu v. State, 683 So.2d 1110, 1112 (Fla. 4th DCA 1996)).

We therefore reverse the order denying the defendant’s motion to withdraw plea and remand for an evidentiary hearing.

Reversed and Remanded.

STONE and FARMER, JJ., concur.


author: STONE, J.

text:
    Dietrick LARGE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Department of Children and Families, Appellees.
    No. 4D05-1627.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.

      Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.
    Deborah Guller and John J. Copelan, Jr., Fort Lauderdale, for Appellee-Department of Children and Families.
   STONE, J.

We reverse an order of the Unemployment Appeals Commission, affirming an appeals referee’s decision denying benefits.

Large was employed by the Department of Children and Families (DCF). The rec-' ord reflects that Large, on disability and taking medication for health problems at the time he commenced employment, experienced escalated stress and anxiety levels with the intensified demands of an increasing workload which adversely impacted his health. Large asked his supervisor for reassignment on several occasions. When his supervisor declined to transfer him, Large quit. No one disputes that Large had health problems. In fact, several months prior to his resignation, DCF had given him time off to deal with these issues based on his doctor’s recommendation.

It is undisputed that good cause includes illness or disability of the claimant, requiring separation from work. DCF’s defense to Large’s claim is that he did not make an additional effort to retain employment by asking for family leave before resigning, ensuring a job to return to once leave was concluded. The referee agreed that, for this reason, he voluntarily left without good cause.

We conclude that the commission order is clearly erroneous because it fails to recognize that the referee’s decision misapplies the law to the facts.

Failure to apply for family leave did not preclude the claimant from eligibility. A claimant qualifies for benefits unless he or she left employment without good cause attributable to the employing unit or which consists of illness or disability of the individual requiring separation from his or her work. § 443.101(l)(a)(l), Fla. Stat.; Stanick v. T & B Metal Works, Inc., 867 So.2d 523, 523 (Fla. 1st DCA 2004). In determining this, the proper inquiry “should be whether the individual is physically unable to perform the job duties,” Krulla v. Barnett Bank, 629 So.2d 1005, 1007 (Fla. 4th DCA 1993), not whether the individual first applied for family leave. The statute does not impose a requirement on sick employees to needlessly exhaust family leave options. There is no indication in the record that the employer offered or suggested that the proposed leave be with pay.

We also note that the provision regarding illness or disability has been construed broadly so that a family member’s medical emergency can also be deemed good cause to leave. Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498 (Fla. 4th DCA 2004).

In Rivero v. Miami-Dade County, 764 So.2d 850 (Fla. 3d DCA 2000), a worker suffered debilitating migraine headaches which resulted in absences and a reduction in his hours. The referee found that Rive-ro had a medical condition which prevented him from working, but that he had caused his separation by not providing information to perfect an application for medical leave. The Third District reversed the denial of benefits because there was no evidentiary support for the referee’s decision, but also recognized that the referee had incorrectly focused the hearing on whether Rivero had properly applied for leave. Id.

Similarly, in Blodgett v. Unemployment Appeals Commission, 880 So.2d 814 (Fla. 1st DCA 2004), a worker, already on leave for pregnancy complications, failed to properly submit paperwork necessary to extend her leave time. The employer discharged her and, after denial of claimed benefits, the appeals referee determined that she was disqualified for misconduct. Id. The First District reversed, finding that the claimant was unable to work for health reasons, and her employer was merely inconvenienced by her late paperwork. The failure to extend family leave was not misconduct and did not preclude receipt of benefits. Id. at 816. See also Grossman v. Jewish Comty. Ctr. of Greater Ft. Lauderdale, 704 So.2d 714, 717 (Fla. 4th DCA 1998) (holding that failure to utilize internal procedures that were not feasible should not disqualify a claimant).

Here, the record reflects that Large, without re-assignment, was medically unable to continue employment with DCF.

Therefore, the order is reversed, and we remand for benefits to be reinstated.

FARMER and MAY, JJ., concur.