author: BRYAN, Judge.

text:
    Ronald G. FLORES v. Cheryl L. FLORES.
    2060408.
    Court of Civil Appeals of Alabama.
    Aug. 3, 2007.

      Norman Bradley, Jr., Huntsville, for appellant.
    William P. Burgess, Jr., and Rebekah L. Howard of William P. Burgess, Jr., P.C., Huntsville, for appellee.
   BRYAN, Judge.

Ronald G. Flores (“the husband”) appeals a judgment modifying his periodic-alimony obligation. Cheryl L. Flores (“the wife”) requests an attorney’s fee on appeal. For the reasons given below, we dismiss the appeal.

In January 2005, the trial court entered a divorce judgment incorporating the terms of the husband and the wife’s settlement agreement. Pursuant to the divorce judgment, the trial court, among other things, awarded the wife periodic alimony in the amount of $323 per month for a period of 24 months; ordered the husband to pay the monthly mortgage indebtedness on the parties’ marital residence until it is sold; awarded the wife primary physical custody of the parties’ minor daughter subject to the visitation rights of the husband; and awarded the wife child support in the amount of $677 per month.

In April 2006, the wife petitioned the trial court seeking, among other things, an increase in the husband’s periodic-alimony obligation. Answering, the husband counterclaimed for ah award of an attorney’s fee. The husband amended his counterclaim to seek, among other things, an award of primary physical custody of the parties’ daughter, termination of his child-support obligation, and an award of child support. The trial court, among other things, ordered a separate trial for the husband’s amended counterclaim.

The husband then sought pendente lite custody of the parties’ daughter. On November 30, 2006, the trial court entered an order that, among other things, granted the husband pendente lite custody of the parties’ daughter and suspended his child-support obligation. That same day, the trial court entered a separate judgment that, among other things, awarded the wife periodic alimony in the amount of $600 per month conditioned on the husband’s paying the mortgage indebtedness on the marital residence until that residence is sold. Additionally, that judgment stipulated that, after the marital residence is sold, the husband must pay the wife periodic alimony in the amount of $1,500 per month for a period of 36 months minus the number of months that he paid the mortgage indebtedness. That judgment disposed of all issues except the issues of custody and child support and denied all other relief requested; the trial court certified the judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

The husband then moved the trial court to alter, amend, or vacate its judgment or, in the alternative, to grant a new trial. After the trial court denied that motion, the husband timely appealed.

On appeal, the husband argues that the trial court erred in modifying the award of periodic alimony because, he says, there was insufficient evidence to establish that the wife had a need for an increase and that the husband had the ability to pay.

Neither the husband nor the wife addresses the appropriateness of the trial court’s certification of the judgment as final pursuant to Rule 54(b). That rule states, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

Our supreme court has stated:

‘“Rule 54(b), [Ala.] R. Civ. P., provides a means of making final “an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality.” Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984). “Rule 54(b) certifications should be granted only in exceptional cases and ‘should not be entered routinely or as a courtesy or accommodation to counsel.’ Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978).” Foster, 446 So.2d at 610.’ ”

Summerlin v. Summerlin, 962 So.2d 170, 173 (Ala.2007) (quoting Branch v. South-Trust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). Furthermore, “ ‘ “[a]ppellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect.” ’ ” Point Clear Landing Ass’n v. Point Clear Landing, Inc., 864 So.2d 369, 371 (Ala.Civ.App.2003) (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999)). . “Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ ” Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d at 1374).

In the case now before us, the wife sought modification of the award of periodic alimony. At trial, the wife, as the party seeking the modification, had the burden of establishing that a material change in circumstances had occurred, that she had a need for an increase in periodic alimony, and that the husband had an ability to pay. See Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004).

In considering a payor’s ability to pay, a court considers evidence of the payor’s expenses, which include his or her child-support obligation. See Corsino v. Corsino, 904 So.2d 1261 (Ala.Civ.App.2004) (reversing the judgment increasing a payee spouse’s periodic-alimony award when, in considering that payor spouse’s child-support, private-school-tuition, and alimony obligations, the payor spouse could not afford to pay an increase in periodic alimony). Thus, the determination of the husband’s obligation to pay child support has bearing on whether he has an ability to afford to pay an increase in his periodic-alimony obligation. However, the trial court has yet to adjudicate the husband’s petition for custody and, therefore, has yet to determine whether he has an obligation to pay child support. Because the wife’s claim for a modification of periodic alimony is so intertwined with the husband’s counterclaim seeking custody and the termination of his child-support obligation, a Rule 54(b) certification of the judgment modifying the wife’s award of periodic alimony is inappropriate. Because the judgment in this case was not an appropriate judgment to be certified as final pursuant to Rule 54(b), we dismiss the appeal. We also deny the wife’s request for an attorney’s fee on appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Paul Sylvester ABRAMS, Jr. v. STATE.
    CR-05-0364.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Paul Sylvester Abrams, Jr., pro se.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   COBB, Judge.

Paul Sylvester Abrams appeals from the circuit court’s summary denial of his second Rule 32, Ala. R.Crim. P., petition. Abrams was convicted in 1994 of two counts of robbery in the first degree and was sentenced to 35 years’ imprisonment on each count; the sentences were to be served concurrently. According to Abrams’s pleadings his convictions and sentences were affirmed on direct appeal and the circuit court’s denial of his request for relief from his conviction presented in a habeas corpus petition and in a prior Rule 32, Ala. R.Crim. P., petition were also affirmed on appeal by this Court. The instant Rule 32 petition was filed on September 8, 2005. The circuit court issued an order denying the petition on the grounds that it was procedurally barred and that it was without merit, although the order contained no findings of fact.

On appeal, as in his petition, Abrams contends that the trial court was without jurisdiction to render judgment and to impose sentence for two convictions based on a single robbery. Specifically, he claimed that he committed a robbery against Regina Shoemaker, an employee of the Rebel Social Club. The State responded to the petition asserting various procedural pre-clusions and asserting that “[ijtems from two different victims were taken even though they were part of the same course of conduct and therefore this claim is moot and due to be denied.” (CR. 29.) He asserts that he stole personal items from Shoemaker, the cashier at the Rebel Social Club, and that he stole money from the cash register at the club. He also claimed that the United. States Constitution prohibits being convicted twice for one course of conduct.

In reviewing the circuit court’s denial of Abrams’s petition, we will affirm the circuit court “[i]f the circuit court is correct for any reason, even though it may not be the stated reason.... See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999); see also Ex parte City of Fairhope, 739 So.2d 35, 39 (Ala.1999).

Couched as a constitutional error, Abrams’s claim fails. A constitutional challenge is nonjurisdictional and therefore subject to the procedural bars set forth in Rule 32, Ala. R.Crim. P. See, e.g., Ex parte Sanders, 792 So.2d 1087 (Ala.2001) (constitutional issues are subject to the procedural bars of Rule 32); Bowen v. State, 899 So.2d 310 (Ala.Crim.App.2004).

We believe, however, that Abrams has pleaded a jurisdictional claim that warrants a remedy.

Abrams was indicted as follows:

“Count I
“... Paul Sylvester Abrams Jr., AKA Ronald Dean Pruitt ... did in the course of committing a theft of a gold chain, rings, lawful United States currency and a wallet and its contents, the property of Regina Shoemaker, threaten the imminent use of force against the person of Regina Shoemaker, with intent to compel acquiescence to the taking of or escaping with the property, while the said Paul Sylvester Abrams, Jr., ... or another participant was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41 of the Code of Alabama. ...
“Count II
.. Paul Sylvester Abrams, Jr., ... did in the course of committing a theft of lawful United States currency, the property of Rebel Club, Inc., threaten the imminent use of force against the person of Regina Shoemaker, with intent to compel acquiescence to the taking of or escaping with the property, while the said Paul Sylvester Abrams, Jr., ... or another participant was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41 of the Code of Alabama. ...”

(Clerk’s record on direct appeal at p. 7.)

“A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense.” Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). Thus, Abrams’s claim that he was the victim of multiple prosecutions for the same course of conduct implicates the trial court’s jurisdiction to render judgment and to impose sentences. “Jurisdictional matters may be raised at any time.” Whitt v. State, 827 So.2d 869, 876 (Ala.Crim.App. 2001); see also Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App.1998)(jurisdictional claims are “not precluded by the limitations period or by the rule against successive petitions”). Thus, this claim is exempt from the procedural bars contained in Rule 32, Ala. R.Crim. P.

We addressed a similar factual situation and argument in Craig v. State, 893 So.2d 1250 (Ala.Crim.App.2004), as follows:

“The facts adduced at trial indicate the following: On July 9, 2001, Paulette Gallahar was working at a dry-cleaning business when Craig entered the store, pulled out a weapon, and announced, ‘ “Oh by the way, this is a robbery.... I’m taking money out of this store and I’m taking your car.” ’ (R. 95.) Craig stole $45 from the cash register and forced Gallahar into the back of the store. In the back of the store, Craig took $5 and car keys from Gallahar’s purse. Craig forced Gallahar to kneel in a corner, put plastic around her head, and held a gun to her head. Another customer entered the front of the store. Craig went to wait on the customer, so as to not cause any suspicion. Gallahar ran to the doorway to the front of the store and shouted, ‘ “It’s a robbery, it’s a robbery.” ’ (R. 103.) She ran out the back door, yelling, jumped into her car, and locked the doors. Craig followed her and, with her keys, unlocked the passenger side door. Craig got into the passenger side of the front seat, grabbed Gallahar’s wrist, and stated, ‘Okay, bitch, you’re driving.’ (R. 105.) Gallahar jerked away from Craig, jumped out of the car, and ran. Craig drove away from the scene of the crime in Gallahar’s car. Craig was arrested in Kentucky several days later in Galla-har’s car. Gallahar later picked Craig out of a photographic lineup.
"... Craig argues on appeal, as he did at trial, that he robbed only one person, albeit twice, and that, therefore, ‘double jeopardy principles are implicated.’ (C. 47.) ...
“ ‘The constitutional guarantee against double jeopardy protects a defendant from being subjected to multiple punishments for the same offense. This guarantee bars the conviction of a defendant for two separate counts of first-degree robbery where the evidence adduced at trial tended to show that the defendant committed only one act of robbery against one victim. Moore v. State, 709 So.2d 1324 (Ala.Crim.App.1997).’
“Young v. State, 724 So.2d 69, 73 (Ala.Crim.App.1998).
“ ‘This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299 (1932).... The pertinent inquiry in deciding whether [these convictions are] acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 349 U.S. 81 (1955).
“ ‘ “ ‘A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const, of 1901, Art. I, § 9; U.S. Const. Amend. V.’ Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). Such question of double jeopardy is determined by the following principles:
“ ‘ “ ‘It has been aptly noted that “the Blockburger [v. United States, 284 U.S. 299 (1932),] test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.” Rashad v. Burt, 108 F.3d 677 (6th Cir.1997). This is because when “a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.” State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). The “appropriate inquiry” in such a case “asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act_The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor.” Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000)(concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant’s possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales).’
“ ‘ “4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed.1999). See also Project, ‘Twenty Ninth Annual Review of Criminal Procedure,’ 88 Geo. L.J. 879, 1293 (2000) (‘when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown’).”
‘Townsend v. State, 823 So.2d 717, 722 (Ala.Crim.App.2001) (footnote omitted [in Girard]).’
“Girard [v. State], 883 So.2d [714] at 715-16 [ (Ala.Crim.App.2002) ].
“ ‘ “Robbery is an offense against the person....”’ Ex parte Windsor, 683 So.2d 1042, 1046 (Ala.1996)(quoting Windsor v. State, 683 So.2d 1027, 1032 (Ala.Crim.App.1994)). That is, the victim in this case was Gallahar, not the dry-cleaning business, although some of the property taken belonged to the business. Proof of an actual taking of property is not required to sustain a conviction for robbery. See Cook v. State, 582 So.2d 592 (Ala.Crim.App.1991). Thus it is the use of force, or the threat of the use of force, against the person that constitutes the crime; therefore, the unit of prosecution is the act of violence against the person. Thus, the number of charges against the defendant is not determined by the number of pieces of property actually taken, as was done in this case. Cf. Connolly v. State, 539 So.2d 436, 441-42 (Ala.Crim.App.1988)(‘The State could not convert a single theft of various items of property into separate offenses by alleging the theft of different items in separate indictments. All the property was taken during the same transaction and constituted one offense. Such is not permitted.’).
“In Young, this Court reasoned:
“ ‘In the present case, the court differentiated the two counts of robbery as follows:
“ ‘ “And the State is maintaining that the first robbery charge is in regard to the $42 or $43 that [V.E.] said was taken from his wallet. And then that the other robbery charge was the going to the, I believe, the front bedroom, seeking money on that occasion.”
“ ‘(R. 416.)
“‘The State presented evidence of one [robbery], but not two separate robberies. The evidence tended to show that Young committed one continuous act of robbery against V.E., using a deadly weapon while committing a theft. The fact that Young forced V.E. into another room does not create a second robbery. The trial court erred in instructing the jury that it did. See Rolling v. State, 673 So.2d 812, 815 (Ala.Crim.App.1995).’
“724 So.2d at 73.
“The evidence in this case, like the evidence in Young, shows that Craig committed one continuous act of robbery against Gallahar. For the reasons stated above, the fact that Craig took property from both Gallahar and from the dry-cleaning business does not create two separate robbery offenses. Therefore, because Craig was twice placed in jeopardy by being indicted for and convicted of two separate charges of first-degree robbery when he in fact committed only one crime against one victim, one of Craig’s convictions for first-degree robbery is to be vacated, along with the accompanying sentence.”

893 So.2d at 1252-56 (footnote omitted). See Smith v. State, 895 So.2d 381, 382-385 (Ala.Crim.App.2004)(relying on Craig, this Court found that two convictions for first-degree robbery violated principles of double jeopardy where the appellant took money from the business cash drawer and from office manager’s purse); McPherson v. State, 933 So.2d 1114 (Ala.Crim.App.2005) (finding Craig to be factually similar, this Court found the appellant’s convictions for two counts of discharging a firearm into an occupied dwelling during one course of conduct was a double-jeopardy violation).

Therefore, we remand this case to the circuit court with directions to grant Abrams’s Rule 32 petition and to enter a new order that adjudges Abrams guilty of the single offense of robbery and to sentence Abrams for that single offense. On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.

      . “The Court of Criminal Appeals can take judicial notice of its own records.’’ Ragland
        v. State, 883 So.2d 730, 731 n. 2 (Ala.Crim.App.2003), citing Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987).


author: WISE, Judge.

text:
    Dominic Pernell MAYFIELD v. STATE of Alabama.
    CR-05-1886.
    Court of Criminal Appeals of Alabama.
    March 23, 2007.
    Dominic Pernell Mayfield, pro se.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Dominic Pernell May-field, appeals from the circuit court’s denial of his motion for reconsideration of sentence pursuant to' § 13A-5-9.1, Ala.Code 1975. On January 15, 1993, Mayfield was convicted of theft of property in the first degree and was sentenced as an habitual felony offender to life imprisonment. On February 11, 1994, this Court affirmed Mayfield’s conviction and sentence. Mayfield v. State, 641 So.2d 1294 (Ala.Crim.App.1994).

On May 25, 2006, Mayfield filed a motion in the circuit court seeking reconsideration of his sentence, alleging that his sentence should be reevaluated pursuant to § 13A-5-9, Ala.Code 1975, as amended, and pursuant to the Supreme Court’s holding in Kirby v. State, 899 So.2d 968 (Ala. 2004), because, he said, he was a nonviolent offender and he had not been convicted of a Class A felony. Specifically, Mayfield states that the two convictions used to enhance his sentence were for burglary in the third degree and receiving stolen property in the second degree but that his case action summary states that his sentence was enhanced with three prior felony convictions. On May 30, 2006, the trial court denied Mayfield’s motion stating it had addressed the claim in a previously filed Rule 32, Ala.R.Crim.P., petition. On December 1, 2001, the trial court ruled that because Mayfield had been sentenced to life imprisonment, as opposed to life imprisonment without the possibility of parole, he did not have jurisdiction to reduce or to modify the sentence. On March 15, 2002, this Court affirmed the trial court’s denial of Mayfield’s Rule 32 petition, by unpublished memorandum, stating that the effective date of the amendment to the Habitual Felony Offender Act was December 1, 2001, and because the trial court issued its ruling on October 18, 2001, the new amendment making the Habitual Felony Offender Act was not in effect when the trial court issued its ruling. Mayfield v. State (No. CR-01-0618), 854 So.2d 1228 (Ala.Crim.App.2002) (table).

On appeal, Mayfield argues that the circuit court abused its discretion when it denied his motion for sentence reconsideration, because, he says, the trial court did not make a proper determination of his eligibility for a reduction in sentence pursuant to § 13A-5-9.1, Ala.Code 1975.

After this Court released its unpublished memorandum in 2002 affirming the denial of Mayfield’s Rule 32 petition, the Alabama Supreme Court held that the proper method by which an inmate should seek reconsideration of his or her sentence was by filing a motion for sentence reconsideration, rather than through petitioning the court pursuant to Rule 32, Ala. R.Crim.P. Kirby v. State, 899 So.2d 968 (Ala.2004). In Kirby, the Supreme Court discussed which inmates were eligible to seek resentencing, stating:

“Reading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.
“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated.”

899 So.2d at 974 (emphasis added).

Our examination of the record indicates that the conviction as to which Mayfield was seeking sentence reconsideration was for one count of first-degree theft of property, a Class B felony. See § 13A-8-3(d), Ala.Code 1975. Pursuant to § 13A-5-9, as it existed at the time of this conviction, the trial court was required to sentence May-field to life imprisonment, if it found that Mayfield had three or more prior felony convictions. After December 1, 2001, Mayfield fell within the category of inmates eligible to file a motion for sentence reconsideration, requesting that the trial court resentence him under the amended provisions of § 13A-5-9, Ala.Code 1975. See Kirby, supra, 899 So.2d at 974; Mack v. State, 925 So.2d 999, 1001 (Ala.Crim.App.2005). Accordingly, the trial court mistakenly concluded that Mayfield was not eligible to file a motion for reconsideration of his 1993 sentence for life imprisonment.

Because the trial court mistakenly concluded that Mayfield was not eligible to file a motion for sentence reconsideration and because some confusion exists concerning whether, at the time of sentencing, two prior felony convictions or three prior felony convictions were used to enhance May-field’s sentence, this case is remanded for the trial court to enter a new order addressing the merits of Mayfield’s request that he be resentenced for the aforementioned Class B felony pursuant to § 13A-5—9(c)(2), as amended, effective May 25, 2000, and to determine whether he was properly sentenced following his 1993 conviction. The trial court’s order shall specifically set out the number of prior felony convictions used to enhance Mayfield’s sentence for first-degree theft, and it should list each of the convictions used to sentence Mayfield as a habitual offender. If the trial court determines that Mayfield was erroneously sentenced, it should re-sentence him in accordance with the provisions of § 13A-5-9, Ala.Code 1975.

The trial court shall make all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ., concur.

      . The circuit court had jurisdiction to consider the motion because Judge Wilson presided over Mayfield’s trial. See Holt v. State, 960 So.2d 726, 735 (Ala.Crim.App.2006).


author: PER CURIAM. WELLS, J., QUINCE, J.,

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—NO. 2007-02 AND STANDARD JURY INSTRUCTIONS IN CIVIL CASES REPORT RE: PROPOSED INSTRUCTION 2.11.
    No. SC07-471.
    Supreme Court of Florida.
    March 20, 2008.
    Honorable Terry David Terrell, Chair, Standard Jury Instructions in Criminal Cases Committee, First Judicial Circuit, Pensacola, FL, Scott D. Makar, Chair, Standard Jury Instructions in Civil Cases Committee, Office of Attorney General, Tallahassee, FL, Tracy Raffles Gunn, Vice-Chair, Standard Jury Instructions in Civil Cases Committee, Fowler, White, Boggs, and Banker, P.A., and Joseph H. Lang, Jr. of Carlton Fields, P.A., Tampa, FL, for Petitioner.
    Jay Thomas, Second District Court of Appeal, Lakeland, FL, Responding with comments.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Criminal Committee) has filed a report proposing new Standard Jury Instruction 2.11 and asks that the Court authorize the proposed new standard instruction for publication and use. The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Civil Committee) filed a report recommending against the authorization of a standard civil instruction similar to the instruction proposed by the Criminal Committee. We have jurisdiction. See art. V, § 2(a), Fla. Const.

In September 2006, we authorized for publication and use several new standard jury instructions for use in criminal and civil trials addressing the situation that arises when a taped conversation in a foreign language and a transcript of the English translation of the conversation are introduced at a trial. See In re: Standard Jury Instructions in Criminal Cases (No. 2005-7) & In re: Standard Jury Instructions in Civil Cases (No. 2005-01), 937 So.2d 1092 (Fla.2006). We declined to authorize at that time a standard jury instruction that had been proposed by the Criminal Committee for use when the parties dispute the accuracy of the transcript of the English translation of a conversation conducted in a foreign language. Instead, we asked the Criminal and Civil Committees to further consider the issue. Id. at 1093.

On March 9, 2007, the Criminal Committee submitted report number 2007-02 proposing new Standard Instruction 2.11. The proposed instruction is identical to the Standard Instruction 2.11 that the Criminal Committee had previously proposed in its report number 2005-7. The proposed instruction was published for comment in the April 30, 2007, edition of The Florida, Bar News. No comments were received.

On March 26, 2007, the Civil Committee submitted its report, expressing the Civil Committee’s position that an instruction identical or similar to instruction 2.11 is unnecessary in the civil context. The Civil Committee’s position and a proposed instruction for use in civil trials (identical to Standard Instruction 2.11 proposed by the Criminal Committee) were published for comment in the July 15, 2007, edition of The Florida Bar News. Only one comment was received, to which the Civil Committee filed a response.

Upon consideration of the committees’ reports, the comment filed, and the Civil Committee’s response, we hereby authorize the publication and use of new standard jury instruction in criminal cases 2.11 and new standard jury instruction in civil cases 1.13, as set forth in the appendix to this opinion. We believe that the new standard jury instruction in civil cases 1.13 is necessary to ensure that all jurors in civil cases consider the same evidence and that bilingual jurors do not become independent translators of a foreign language tape.

In authorizing these instructions, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LEWIS, C.J., and ANSTEAD and PARIENTE, JJ., concur.

WELLS, J., concurs in part and dissents in part with an opinion, in which BELL, J., concurs.

QUINCE, J., concurs in part and dissents in part with an opinion, in which CANTERO, J., concurs.

WELLS, J.,

concurring in part and dissenting in part.

I concur with the adoption of Standard Criminal Jury Instruction 2.11, as recommended by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases.

I dissent as to the adoption of Standard Civil Jury Instruction 1.13. I would follow the recommendation of the Supreme Court Committee on Standard Jury Instructions in Civil Cases.

BELL, J., concurs.

QUINCE, J.,

concurring in part and dissenting in part.

I agree with the majority that these instructions should be adopted and applied in both criminal and civil cases, I cannot agree, however, with the portion of instruction 2.11 that tells jurors not to rely on their own knowledge of a foreign language. I agree with some of the comments that were filed in this case which indicate that jurors are otherwise told to weigh evidence in light of their own knowledge and common sense. To ask a juror to set aside her or his own knowledge is asking for the impossible. Therefore, I would not adopt that portion of instruction 2.11.

CANTERO, J., concurs.

APPENDIX

Standard Jury Instruction for Use in Criminal Trials

2.11 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY IN DISPUTE)

You are about to listen to a tape recording in [language used]. Each of you has been given a transcript of the recording. The transcripts were provided to you by [the State] [the defendant] so that you could consider the content of the recordings. The transcript is an English translation of the foreign language tape recording.

Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.

Comment

This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is an issue. See, e.g., United States v. Jordan, 223 F.3d 676, 689 (7th Cir.2000). See also Seventh Circuit Federal Criminal Jury Instructions, § 3.18.

Standard Jury Instruction for Use in Civil Trials

1.13 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/INTERPRETATION

TRANSCRIPT OF RECORDING IN FOREIGN LANGUAGE (ACCURACY IN DISPUTE)

You are about to listen to a tape recording in [language used]. Each of you has been given a transcript of the recording. The transcripts were provided to you by [the plaintiff] [the defendant] so that you could consider the content of the recordings. The transcript is an English translation of the foreign language tape recording.

Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.

Comment

This instruction is appropriate immediately prior to the jury hearing a tape-recorded conversation in a foreign language if the accuracy of the translation is an issue. See, e.g., United States v. Jordan, 223 F.3d 676, 689 (7th Cir.2000). See also Seventh Circuit Federal Criminal Jury Instructions, § 3.18.

      . The criminal instruction in the appendix will appear on the Court’s website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instruction as it appears on the website and the published version of the instruction. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.215.
    No. SC07-596.
    Supreme Court of Florida.
    March 27, 2008.
    Judge Robert T. Benton, II, Chair, Florida Rules of Judicial Administration Committee, First District Court of Appeal; John F. Harkness, Jr., Executive Director, and J. Craig Shaw, Bar Liaison, The Florida Bar, Tallahassee, FL; Circuit Judge Jennifer D. Bailey, Vice-Chair, Florida Court Education Council, and Circuit Judge Kevin M. Ernas, Florida Court Education Council, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rule of Judicial Administration 2.215. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On April 3, 2007, The. Florida Bar’s Rules of Judicial Administration Committee (Committee) filed an out-of-cycle report proposing amendments to Rule of Judicial Administration 2.215, Trial Court Administration. The proposed rule change derived from a proposal presented to the Committee by the Florida Court Education Council in September 2005. The amendments at issue pertain to rule 2.215(b)(10), which establishes the minimum felony trial experience and educational training required for circuit court judges to preside over capital cases and the responsibility of the chief judge in assigning capital cases. After submission to the Court, the proposed amendments to rule 2.215 were published in the June 1, 2007, edition of The Florida Bar News. No comments were filed with the Court. Upon consideration of the Committee’s proposal, we hereby adopt rule 2.215(b)(10) as proposed.

Under rule 2.215(b)(10), the chief judge shall not assign a circuit judge to preside over a capital case, whether it be the initial proceeding where the state is seeking the death penalty or a collateral proceeding brought by a death row inmate, unless the judge has met the requisite educational and experiential qualifications. The amendment reorganizes the rule, breaks down the requirements into new subdivisions, and clarifies when a circuit judge must take the refresher course to remain in compliance with the rule. The amendment also clarifies that the judge must have presided for a minimum of six months in a felony division and adds the alternative of presiding in a division that includes felony criminal cases. As amended, rule 2.215(b)(10)(B) allows for waiver of the requirements.

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The amendments shall become effective April 1, 2008, at 12:01 a.m.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 2.215. TRIAL COURT ADMINISTRATION

(a) (No Change)

(b) Chief Judge.

(l)-(9) (No Change)

(10) The chief-judge shal-l-ensure that-no judge presides oyer a capital case in which the state is seeking the death penalty or collateral proceedings brought by a death row inmate untfl-that judge-has served a minimum of 6 months in a felony criminal division and-has -successfully-completed the “Handling Capital Cases” course offered through-the Florida College of Advanced Judicial Studies. — Each judge must complete the — Handling-Capitah-Cases” course as soon as practicable upon entering the criminal division.- Once a judge successfully completes the “Handling Gapital Cases” course, the-judge-must thereafter attend a “refresher” course during each of the-subsequent-continuing judicial education reporting periods. — The- chief-justice may waive-lhe course-requirement in exceptional circumstances at-the request of the chief judge- — This requirement -shall not -preclude a judge from- presiding in collateral proceedings in a case in which the judge presided-over the trial or an earlier collateral proceeding.

(A)The chief judge shall not assign a judge to preside over a capital case in which the state is seeking the death penalty, or collateral proceedings brought by a death row inmate, until that judge has become qualified to do so by:

(i) presiding a minimum of 6 months in a felony criminal division or in a division that includes felony criminal cases, and

(ii) successfully attending the “Handling Capital Cases” course offered through the Florida College of Advanced Judicial Studies. A judge whose caseload includes felony criminal cases must attend the “Handling Capital Cases” course as soon as practicable.

(B) The chief justice may waive these requirements in exceptional circumstances at the request of the chief judge.

(C) Following attendance at the “Handling Capital Cases” course, a judge shall remain qualified to preside over a capital case for three calendar years, and may maintain that qualification by attending a “Capital Case Refresher” course during each following three-year period. A judge who has attended the “Handling Capital Cases” course and who has not taken the “Capital Case Refresher” course within three years must requalify to preside over a capital case by attending the refresher course.

(D) The refresher course shall be at least a 6-hour course and must be approved by the Florida Cpurt Education Council. The course must contain instruction on the following topics: penalty phase, jury selection, and proceedings brought pursuant -to Florida Rule of Criminal Procedure 3.851.

(E) This rule shall not preclude a judge from presiding in collateral proceedings in a case in which the judge presided over the trial or an earlier collateral proceeding.

(c)-(i) [No Change]

Court Commentary

(No Change)


author: LEWIS, J.

text:
    STATE of Florida, Petitioner, v. Robert Nelson BALDWIN, Respondent.
    No. 1D07-3077.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Rehearing Denied March 7, 2008.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Petitioner.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Respondent.
   LEWIS, J.

The State of Florida petitions this Court for a writ of certiorari to review a trial court order excluding three witnesses from testifying in the State’s case-in-chief. The trial court’s ruling was based on its determination that Robert Baldwin, Respondent, had been afforded insufficient time to prepare for the cross-examination of these witnesses. However, neither the trial court’s order, nor the hearing transcript reflects consideration of reasonable alternatives to the categorical exclusion of these witnesses. Because the trial court departed from the essential requirements of the law in failing to undertake such a consideration, we grant the petition and remand the case for further proceedings consistent with this opinion.

A petition for writ of certiorari is the proper vehicle for seeking review of a pretrial order excluding critical evidence from the State’s case in a criminal trial. State v. Storer, 920 So.2d 754, 758 (Fla. 2d DCA 2006). However, certiorari relief should not be granted merely because an appellate court concludes that the trial court’s analysis was incorrect. State v. Smith, 951 So.2d 954, 957 (Fla. 1st DCA 2007). Instead, the State must demonstrate that “the trial court committed an error so serious that it amounts to a miscarriage of justice.” Id. When the State challenges a pretrial evidentiary ruling via a petition for writ of certiorari, it must show that the trial court either “applied the wrong procedure in evaluating the admissibility of the evidence” or “applied the wrong law in deciding the issue on the merits.” See id.

Witness exclusion is a severe measure, to be invoked as a last resort. Donaldson v. State, 656 So.2d 580, 580 (Fla. 1st DCA 1995). A trial court is permitted to exclude witnesses only under “the most extreme or compelling circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative.” Id. at 581. For this reason, this Court has observed that a trial court may use its discretion to exclude witnesses only after conducting “an adequate inquiry to determine whether any other reasonable alternatives might be used to overcome or mitigate possible prejudice.” Id. A trial court must strictly adhere to this procedure because excluding a witness from trial implicates the State’s right to a fair trial, which includes the right to call witnesses. See State v. Gerry, 855 So.2d 157, 161 (Fla. 5th DCA 2003) (acknowledging that these rights belong to both the State and the defendant).

Here, certiorari relief is appropriate because the trial court failed to inquire into reasonable alternatives to the categorical exclusion of three State witnesses, and thus, failed to apply the proper procedure for taking the extreme measure of preventing a witness from testifying. It was proper for the trial court to consider whether the defense had been given sufficient time to prepare for the cross-examination of these witnesses, particularly because Respondent had invoked his right to a speedy trial. See Vega v. State, 778 So.2d 505, 506 (Fla. 3d DCA 2001)(“A defendant should not have to choose between the right to a speedy trial and the right to discovery within sufficient time to adequately prepare for trialHowever, this consideration did not eliminate the need for the trial court to consider reasonable alternatives to complete exclusion, as required by Donaldson, 656 So.2d 580-81.

Accordingly, the petition is GRANTED, the order is QUASHED, and the case is remanded for further proceedings consistent with this opinion.

VAN NORTWICK and THOMAS, JJ., concur.,

      . We acknowledge that the trial court's order did not prevent the witnesses from testifying as rebuttal witnesses. However, under such an allowance, whether the witnesses would be permitted to testily was entirely within the control of the defendant. Thus, for all practical purposes, these witnesses were excluded from the trial, and the State’s right to call witnesses was violated.


text:
    Kirk DIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5974.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2008.
    Rehearing Denied April 11, 2008.
    Kirk Dixon, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BENTON, and PADOVANO, JJ., concur.


author: BROWNING, C.J.

text:
    Benjamin COKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5738.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    Rehearing Denied April 17, 2008.

      Jonathan W. Dingus, Panama City, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant challenges the denial of his postconviction motion, alleging both fundamental error in that no competency hearing was held, and ineffective assistance of counsel in that counsel did not demand a competency hearing. We affirm as to the claim of fundamental error, without further discussion, but we reverse the ruling on the ineffective assistance claim because Appellant has adequately shown both deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Counsel’s performance was deficient in that he obtained the trial judge’s oral authorization for a mental evaluation of Appellant, but never drafted a written order for the judge to sign, so no competency hearing under Florida Rule of Criminal Procedure 3.210 was held. When an accused’s competency is in doubt, a competency hearing is required. Rogers v. State, 954 So.2d 64 (Fla. 1st DCA 2007). The failure to secure a written order so providing constitutes deficient performance and compels relief if Appellant can show prejudice resulting from such failure.

Appellant has shown that his counsel’s deficient performance prejudiced him by the doctor’s testimony adduced at the evidentiary hearing that, in his opinion, Appellant was incompetent to stand trial at the time he entered his plea. This testimony shows that had a competency hearing been held, Appellant could have been adjudicated incompetent to enter his plea of guilty.

For these reasons, we REVERSE the denial of Appellant’s postconviction motion, and REMAND for a competency hearing to determine if Appellant was competent at the time he entered his plea. If Appellant is found incompetent, his conviction and sentence shall be voided. If Appellant is found competent, his sentence and conviction stand.

BARFIELD and DAVIS, JJ„ concur.


author: VILLANTI, Judge.

text:
    PARROT COVE MARINA, LLC, Appellant, v. DUNCAN SEAWALL DOCK & BOATLIFT, INC., Appellee.
    Nos. 2D06-3720, 2D06-4582.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2008.

      Charles F. Johnson, Mary Fabre Le-Vine, and Fred E. Moore of Blalock, Walters, Held & Johnson, P.A., Bradenton, for Appellant.
    Douglas R. Bald of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Appellee.
   VILLANTI, Judge.

Parrot Cove Marina, LLC, appeals two orders of the trial court: a final judgment of foreclosure and an award of attorney’s fees and costs in favor of Duncan Seawall Dock & Boatlift, Inc. For the reasons explained below, we affirm the final judgment of foreclosure but reverse the award of attorney’s fees and costs.

Parrot Cove and Duncan entered into an agreement under which Duncan would excavate silt material from property owned by Parrot Cove. It appears that a dispute arose between the parties after Duncan began performing the work, and Parrot Cove did not pay part of the contract price. On May 4, 2005, Duncan filed a lawsuit against Parrot Cove for breach of contract and foreclosure of a lien on the property. During most of the litigation, Parrot Cove was represented by the Mack-ey Law Group, P.A. On January 17, 2006, following a case management conference, the trial court issued an “Order Scheduling Case for Non-Jury Trial,” which included the following language pertinent to this appeal:

1. Trial Date. This Cause is hereby set for non-jury trial during the one-week trial period beginning JUNE 19, 2006. All counsel and pro se parties will be ready for trial at 8:30 a.m. on the first day of said trial period and will remain on standby status for the entire trial term until further notice by the court. Tentative and final trial dockets will be posted on our website, www.12 circuit.state.fl.us as soon as practicable. Pretrial will be scheduled only upon request.

A copy of the order was mailed to Parrot Cove’s counsel, who had been present at the hearing. Thereafter, neither side requested a pretrial conference.

On March 28, 2006, Parrot Cove’s counsel served a motion to withdraw as counsel in the case. A copy of the motion to withdraw was mailed and also faxed to Parrot Cove. On May 18, 2006, following a hearing, the trial court entered an order granting the Mackey Law Group’s motion to withdraw as counsel for Parrot Cove. The trial court’s order specifically stated that Parrot Cove had “thirty (30) days from the date of this order to obtain new counsel” and contained no reference to any changes in the pending trial date. A copy of the order granting the motion to withdraw was mailed to Parrot Cove.

As noted above, the trial court’s scheduling order had already set the case for trial the week of June 19, 2006. We also note that a corporation must be represented by an attorney to defend or prosecute a lawsuit. Nicholson Supply Co. v. First Fed. Sav. & Loan Ass’n of Hardee County, 184 So.2d 438, 440-42 (Fla. 2d DCA 1966). Based on the trial court’s order, Parrot Cove was required to obtain new counsel by June 17, 2006. Because June 17 was a Saturday, Parrot Cove had to obtain new counsel by the next business day — June 19, 2006 — which, coincidentally, was the date when the one-week trial calendar began. The record contains no evidence that Parrot Cove retained new counsel on or before June 19, 2006. Parrot Cove did not appear for trial at any time during the week of June 19, nor did it make any effort to ascertain the status of the trial, despite the fact that the order scheduling trial provided a website through which Parrot Cove could easily confirm tentative and final trial dockets. Furthermore, the record does not reflect any effort on Parrot Cove’s part to alert the trial court of any difficulty obtaining counsel. On appeal, Parrot Cove could not point to anything objective in the record as to why it failed to abide by the trial court’s order to obtain new counsel within thirty days of the trial court’s order.

On June 22, 2006, the trial court called the case for nonjury trial; Parrot Cove did not attend the trial. The trial proceeded that morning, and that same day the court entered a final judgment for construction lien foreclosure in favor of Duncan. On June 23, 2006, Parrot Cove’s agent Robert Gertz, who is not a lawyer, sent a handwritten letter to the court alleging that Parrot Cove had not received notice of the trial date until the afternoon of June 22, 2006, when it received by mail a letter dated June 19, 2006, from the trial judge’s judicial assistant stating that the case would be called for trial on June 22, 2006. It is evident from this letter that Parrot Cove still had not retained new counsel as of June 23, 2006. On June 28, 2006, Parrot Cove’s new counsel made an appearance, moving for rehearing and relief from final judgment. The trial court summarily denied Parrot Cove’s motion. Parrot Cove appeals the trial court’s final judgment of foreclosure, making two arguments.

First, Parrot Cove argues that it did not have sufficient notice of the trial because its counsel withdrew from representation. In support of its motion for rehearing and to set aside the final judgment, Parrot Cove filed with the trial court Mr. Gertz’s affidavit which stated:

Parrot Cove’s prior counsel withdrew from this case in May 2006. At this time, prior counsel discussed this withdrawal with Affiant but never discussed the approaching trial date or any steps [Parrot Cove] would need to take with regard to it with Affiant or, to the best of Affiant’s knowledge, with any other agent or representative of ... Parrot Cove.

(Emphasis added.) Thus the affidavit did not actually assert that Parrot Cove’s attorney never informed it of the trial date, only that counsel did not discuss the trial date with Parrot Cove when counsel withdrew from representation. Parrot Cove’s argument would in effect require a trial court to readdress, reissue, or renotiee any pending trial deadlines every time a party changes counsel during the pendency of a case. This burden-shifting proposal is untenable. Regardless, it is well established that “as agent of the client, any notice by or to the attorney in the proceeding is notice to the client.” King-Coleman v. Geathers, 841 So.2d 593, 595 (Fla. 4th DCA 2003).

In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client, and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client.

Fla. R. Jud. Admin. 2.505(h). Although Parrot Cove argues that it did not receive notice of the trial date, it is clear from the record that on January 17, 2006 — months before withdrawing as counsel in the case — Parrot Cove’s counsel attended a case management conference related to the case, and the trial court mailed to Parrot Cove’s counsel a copy of the order scheduling the case for trial the week of June 19, 2006. Moreover, the trial court’s order granting counsel’s motion to withdraw directed Parrot Cove to obtain new counsel within thirty days. It is clear from the record that Parrot Cove failed to abide by the trial court’s order. Had Parrot Cove retained counsel within the requisite period of time, its new counsel would also have become aware of the upcoming trial, and Parrot Cove would have been represented at trial on June 22, 2006. Under these circumstances, notice of trial to Parrot Cove’s counsel is considered notice of trial to Parrot Cove itself. Even if the affidavit were more specific in asserting Parrot Cove’s lack of actual notice of trial, the trial court did not abuse its discretion in rejecting Parrot Cove’s argument regarding lack of notice — -legally or factually.

Second, Parrot Cove contends that an order setting the case for trial during a one-week period, rather than on a specific date, did not provide sufficient notice under Florida Rule of Civil Procedure 1.440(c). However, rule 1.440(c) only provides: “If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial.” The order setting the trial “during the one-week trial period beginning JUNE 19, 2006,” contained a date more than thirty days after the order’s issuance and clearly complied with this rule. We note that the practice of setting cases for week-long or month-long trial calendars is common in many state and federal courts. Given the existing volume of litigation, many courts would be unable to function efficiently if they were not able to schedule trials in such fashion. In the context of this case, we reject Parrot Cove’s argument that the scheduling order’s directions that the parties be on “standby status” during the week-long trial term “until further notice by the court” should be construed to require the trial court to issue a second notice with .the exact day during that one week when the case would be tried. The clear import of the trial court’s scheduling order was that absent indication from the court that the case had been removed from the trial docket, it would remain on “standby” during the week-long trial calendar. We affirm the trial court’s final judgment of foreclosure.

Parrot Cove also appeals the trial court’s order awarding Duncan attorney’s fees and costs. The trial court’s final judgment also provided:

Unless [Parrot Cove] shall pay [Duncan] the sums specified-in paragraph 5 above, together with reasonable attorney’s fees and costs of the suit as to which the Court reserves jurisdiction to enter supplementary relief on behalf of [Duncan], the Clerk of the Court shall advertise for and conduct a foreclosure sale in accordance with Section 45.031(1), Florida Statutes.

On July 20, 2006, Duncan served a notice of hearing, but no motion, on the issue of attorney’s fees. On appeal, Duncan admits that Parrot Cove’s counsel asked Duncan’s counsel whether Duncan intended to file a motion for attorney’s fees. Duncan’s counsel responded that a motion for attorney’s fees was not necessary. On July 21, 2006 — twenty-nine days after the final judgment — Duncan served an amend: ed notice of hearing, still without filing a motion, clarifying that the issue to be decided at the hearing would be “Attorney’s Fees Determination Pursuant to Provisions of Final Judgment for Construction Lien Foreclosure.” In fact, Duncan did not serve a motion for attorney’s fees at any time. The trial court denied Parrot Cove’s motion to strike Duncan’s request for attorney’s fees and costs and entered an order awarding Duncan $26,080 in attorney’s fees and costs. On appeal, Parrot Cove argues that the award was improper because Duncan failed to serve a motion for attorney’s fees and costs within thirty days of judgment as required by Florida Rule of Civil Procedure 1.525. We agree with Parrot Cove and reverse the trial court’s award- of attorney’s fees and costs to Duncan.

Rule 1.525 provides: “Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Duncan did not file a motion for attorney’s fees, but it simply noticed the matter for a hearing. Duncan invites us to make an exception to the requirements of rule 1.525 based on two arguments. First, relying on Hart v. City of Groveland, 919 So.2d 665 (Fla. 5th DCA 2006), Duncan invites this court to carve out an exception to the language of rule 1.525 which requires that a motion for attorney’s fees be served in order to recover fees and costs. Duncan argues that the June 22, 2006, final judgment had already awarded it attorney’s fees, leaving only the amount of fees for determination. Duncan points out that the Fifth District in Hart questioned “whether it makes sense to require a motion be filed within 30 days of the rendering of a judgment, when the judgment itself awards one party attorney’s fees and costs.” Hart, 919 So.2d at 669. The Fifth District then concluded that it would be superfluous to require a party to file a motion seeking to tax fees and costs where that party already has a judgment that awards it fees and costs. Id. at 669. Our precedent and the plain language of rule 1.525 prevent us from following Hart. In Gulf Shores, L.L.C. v. Riverwood Community Development District, 927 So.2d 246, 247-48 (Fla. 2d DCA 2006), we held that “[e]ven if a trial court enters an order finding that a party is entitled to fees but reserving jurisdiction to determine the amount, the party must still serve a timely motion under rule 1.525.” See also Molloy v. Flood, 884 So.2d 256, 257 (Fla. 2d DCA 2004) (holding that service of a notice of hearing where the final judgment reserved jurisdiction as to attorney’s fees and costs did not comply with rule 1.525). Thus rule 1.525 is a bright-line rule that is strictly applied. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 600 (Fla.2006). Therefore, Duncan was required to file a motion for attorney’s fees and costs.

Second, Duncan invites this court to create an exception to the requirements set forth in rule 1.525 by relying on dictum from Gulf Landings Ass’n v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003). In Gulf Landings this court held that a notice of hearing which simply provided the date for a final hearing on attorney’s fees did not comply with the requirement of rule 1.525. Gulf Landings, 845 So.2d at 346. However, in Gulf Landings Judge Alten-bernd suggested that there might be a set of circumstances under which a notice of hearing might contain information sufficient to bring the notice under the definition of a “motion” set forth in Florida Rule of Civil Procedure 1.100(b). Id. We decline Duncan’s request that we apply Gulf Landings ’ dicta to this case because, in our view, this case does not present the set of circumstances alluded to in Gulf Landings. Duncan’s notice of hearing did not contain such information — it merely referenced the final judgment. Because Duncan failed to file a motion for fees which complied with rule 1.525 within the thirty-day time period prescribed by the rule, the trial court’s fees and costs award must be reversed.

In closing, we note that Duncan has properly filed a motion for appellate attorney’s fees pursuant to Florida Rule of Appellate Procedure 9.400(a)-(b) and section 713.29, Florida Statutes (2006). Parrot Cove filed a motion for attorney’s fees pursuant to rule 9.400(a). Parrot Cove prevailed on the attorney’s fee issue only because Duncan failed to comply with rule 1.525. Rule 1.525 does not provide a substantive basis to support an award of attorney’s fees to Parrot Cove even though it was a party that benefited from Duncan’s noncompliance with the rule. Therefore, we deny Parrot Cove’s appellate fees motion because it did not prevail on a substantive issue. Based upon our holding, we tentatively grant Duncan’s appellate fee request, but we remand to the trial court for further proceedings to consider the issues of entitlement and fee amounts. Florida Rule of Civil Procedure 1.525 and Florida Rule of Appellate Procedure 9.400 provide separate and distinct rights to attorney’s fees. Therefore, as to Duncan, its prior noncompliance with rule 1.525 does not preclude its timely filed motion for appellate attorney’s fees under rule 9.400(b). To the extent that the parties’ motions request costs, the requests are stricken -without prejudice to either party filing an appropriate request with the circuit court. See Fla. R.App. P. 9.400.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY, J., and BARBAS, REX MARTIN, Associate Judge, Concur.

      . The record on appeal does not contain a transcript of that hearing.

      . Also, nothing prevented Parrot Cove from calling the judicial assistant or other attorneys on the docket to confirm the date of trial.

      . We view this letter as a courtesy because it was not required or referenced in the order setting the case for trial. The parties had no expectation such a letter would be issued, and therefore, its timely receipt was not an issue that would change this analysis.

      . Because the rule itself contains little procedural or substantive guidance as to what should be contained in the motion for fees, we suggest it would be appropriate for the Civil Procedure Rules Committee to consider adding such further guidance as it deems appropriate. This would hopefully then prevent confusion as to when, if ever, a notice of hearing should actually be regarded as a motion for fees.

      . Parrot Cove’s motion for appellate fees also claimed entitlement to attorney’s fees based on the parties' contract. In its response to Duncan’s motion for rehearing or clarification, Parrot Cove explained that Duncan’s complaint below had claimed entitlement to attorney's fees pursuant to the parties' contract and that, therefore, Parrot Cove was entitled to recovery of appellate fees under the same contract.

      . Thus, it is immaterial that the parties’ contract may have contained a provision for attorney's fees.


text:
    Fred BLACKWELL, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D07-2518.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2008.
    Fred R. Blackwell, pro se, Appellant.
    Maximillian J. Changus, Assistant General Counsel, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant argued below that the Department of Corrections has no jurisdiction over him because his judgment form was not signed; when his petition for relief was denied, he brought the instant appeal. We affirm on the merits of this claim without comment. Appellant also challenges the circuit court’s imposition of a lien on his inmate trust account. We affirm as to the lien issue because Appellant’s claim is not a collateral criminal proceeding, as he did not request any change in his judgment or sentence. See Sykes v. State, 974 So.2d 1133 (Fla. 1st DCA 2008).

AFFIRMED.

VAN NORTWICK and ROBERTS, JJ„ concur.


author: THOMAS, J.

text:
    Charles DUNLAP, Appellant, v. CSR RINKER TRANSPORT and Rinker Transport and/or Norma Deal Trucking and/or Roger Bartolo, Appellees.
    No. 1D06-6631.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2008.
    Rehearing Denied April 11, 2008.

      Laurie Thrower Miles of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquas-to, P.A., Tallahassee, Attorneys for Appellant.
    Richard A. Sherman, Sr., of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale; James B. Birmingham of Ful-mer, LeRoy, Albee, Baumann & Glass, P.L.C., Orlando, Attorneys for Appellees.
   THOMAS, J.

In the case we have before us, Claimant appeals an order from the Judge of Compensation Claims (JCC) denying his claim that Appellee Rinker Transport (Rinker) is his statutory employer under section 440.10(l)(b), Florida Statutes (2001). Although we agree with Claimant that the JCC failed to conduct the proper analysis, we affirm on other grounds.

The record reflects Claimant was injured while working as a mechanic for Norma Deal Trucking (Norma Deal), which did not have workers’ compensation insurance. Claimant argued below that Rinker had a contractual duty with third parties to haul materials and sublet a part of these duties to Norma Deal. Accordingly, Claimant believes that Norma Deal was a subcontractor of Rinker; thus, Rinker qualifies as his statutory employer under section 440.10(l)(b). This designation is important because a general contractor is responsible for providing workers’ compensation benefits to any employee of an uninsured subcontractor working on its job sites. See § 440.10(l)(b), Fla. Stat. (2001).

Here, the JCC found that “Norma Deal Trucking was not a subcontractor of [Rinker] as [Norma Deal] was an independent corporation.” We agree with Claimant that this is the incorrect test to determine whether Norma Deal is a subcontractor of Rinker. The fact that the two companies are wholly independent of each other is irrelevant in determining whether one is a subcontractor of the other. See, e.g., Gator Freightways, Inc. v. Roberts, 550 So.2d 1117, 1118 (Fla.1989) (“The contract between Reason and Gator specifically recites that Reason is an independent contractor”). However, because we find that Appellant’s claim would fail even if the proper analysis had been conducted, we affirm the trial court’s order. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

We write to explain that the proper inquiry can be found in both the language of the statute and in prior decisions of this court. Section 440.10(l)(b), Florida Statutes (2001), provides in pertinent part:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

(Emphasis added.) This section is designed to ensure that employees engaged in the same contract work are covered under workers’ compensation, regardless of whether they are employees of the general contractor or its subcontractor. Andrews v. Drywall Enters., 569 So.2d 821, 823 (Fla. 1st DCA 1990).

“To be a contractor under [section 440.10(l)(b) ], one must have a contractual obligation to perform some work for another.” Miami Herald Publ’g v. Hatch, 617 So.2d 380, 382 (Fla. 1st DCA 1993) (citing Acme Oil v. Vasatka, 465 So.2d 1314, 1317 (Fla. 1st DCA 1985)). The party’s “primary obligation in performing a job or providing a service must arise out of a contract,” and this primary obligation “refers to an obligation under the prime contract between the contractor and a third party....” Id. (internal citations omitted) (emphasis in original); see also Jones v. Fla. Power Corp., 72 So.2d 285, 289 (Fla.1954) (holding the general contractor must have a contractual obligation which it passes on to another); Hammel v. Pittman, 389 So.2d 1220 (Fla. 1st DCA 1980) (holding there was no contractor-subcontractor relationship between the two entities because the “contractor” had no primary obligation under a contract that was passed on to the alleged “subcontractor”); Woods v. Carpet Restorations, Inc., 611 So.2d 1303, 1304 (Fla. 4th DCA 1992) (“It is absolutely basic, therefore, that one cannot be a ‘contractor’ (and thus a statutory employer) within the meaning of this statute unless the ‘contractor’ has a contractual obligation, a portion of which is sublet to another.”).

Here, there is no evidence whatsoever that Rinker was performing a contractual obligation for any third party when it took its trailers to Norma Deal for mechanical repairs. The “primary obligation” of the contract entered into between Rinker and its customers was to deliver materials from Point A to Point B, not to ensure that its trailers were in working order. Thus, despite the fact that Claimant may have been working on a Rinker trailer at the time of his injuries, he was not “engaged in such contract work,” as promulgated under section 440.10(l)(b), or involved in the “primary obligation” passed from Rinker to Norma Deal, as required by our case law. See Hatch, 617 So.2d at 882; Hammel, 389 So.2d at 1221. Under the facts of this case, we find that Norma Deal cannot be considered Claimant’s statutory employer.

Accordingly, the JCC’s order is AFFIRMED.

POLSTON and HAWKES, JJ., concur.


author: HAZOURI, J.

text:
    Ace J. BLACKBURN, Jr., Joan A. Wagner, Chris A. Economou and Gus Morfidis, as Curators of the Estate of Konstantinos Boulis a/k/a Gus Boulis, Deceased, Appellants, v. Constantin BARTSOCAS and Kiki Vasilici Bartsocas, Appellees.
    Nos. 4D06-2267, 4D06-2407, 4D06-2787.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Glenn J. Waldman and Craig J. Trigo-boff of Waldman Feluren Hildebrandt & Trigoboff, P.A., Weston, for appellants.
    John R. Hargrove and Carol A. Gart of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellees.
   ON AMENDED MOTION FOR REHEARING

HAZOURI, J.

We grant appellees’ amended motion for rehearing, grant the motion for clarification, withdraw our previous opinion and substitute the following in its place.

Appellants/cross-appellees, Ace J. Blackburn, Jr., Joan A. Wagner, Chris A. Eco-nomou, and Gus Morfidis, as Personal Representatives of the Estate of Konstan-tinos Boulis a/k/a Gus Boulis (“The Estate”), appeal from the following orders of the trial court: (1) Order Granting Partial Summary Judgment in Favor of the Defendants; (2) Order Denying Defendants’ Motion for Judgment Notwithstanding the Verdict and Incorporated Request for Re-mittitur and/or New Trial on Damages; and (3) Order Granting Plaintiffs’ Motion for Pre-Judgment Interest in this court’s case number 4D06-2267. The Estate also appeals from the trial court’s Order Denying Defendants’ Motion for Judgment Notwithstanding the Verdict and Corrected Incorporated Request for ' Remittitur and/or New Trial on Damages and Denying Plaintiffs’ Motion for Declaratory Judgment in this court’s case number 4D06-2407. The Estate also appeals the Final Judgment in favor of appellees/cross-appellants, Constantin Bartsocas and Kiki Vasilici Bartsocas in case number 4D06-2787. The Bartsocases filed their cross-appeal of the Order Granting Partial Summary Judgment in Favor of the Defendants and the Order Denying Defendants’ Motion for Judgment Notwithstanding the Verdict and Corrected Incorporated Request for Remittitur and/or New Trial on Damages and Denying Plaintiffs’ Motion for Declaratory Judgment. The three eases were consolidated by this court.

Although there are numerous points on appeal and cross-appeal, the fundamental issue in the case is whether the jury’s verdict awarding the Bartsocases $1,211,231.00 under their unjust enrichment claim can be sustained. We find that it cannot and reverse.

The Bartsocases’ claim arises out of a longstanding relationship between themselves and the decedent, Gus Boulis. The initial relationship developed as a friendship when all of the parties resided in Canada, where Boulis was involved in ownership, operation and management of various “Mr. Submarine” franchise restaurants. The Bartsocases left Canada to open a restaurant in the Florida Keys. In 1978, Boulis visited the Bartsocases in the Keys and decided to move to Florida and develop certain business enterprises. From 1979 through 2000, the parties worked in certain businesses which were formed as corporations by Boulis.

Boulis was the owner of the corporations and all properties associated therewith. The Bartsocases worked in several of the businesses. They contend that they had an oral partnership agreement with Boulis in which they would invest their time and effort with little, if any, compensation and at some point in time would share in the proceeds and profits of the partnership. From 1979 through 2000, the Bartsocases received $384,519.00 from the alleged partnership.

Upon Boulis’s untimely death, the Bart-socases made a claim with the Estate for benefits under the alleged partnership agreement, which the Estate denied. The Bartsocases filed their complaint against the Estate asserting numerous causes of action. However, when the case went to trial, the only claims remaining were for breach of an implied partnership, unjust enrichment and promissory estoppel. The jury returned a verdict finding there was no implied partnership nor were the Bart-socases entitled to a claim of promissory estoppel, but found in the Bartsocases’ favor on their unjust enrichment claim and awarded them $1,211,231.00.

At trial the Bartsocases presented the expert testimony of Ronald Patella, a certified public accountant, to establish the measure of their damages. Patella testified that, under the theory of an implied partnership, the net value of the Bartso-cases’ interest in the implied-in-law partnership real estate was $10,465,446.00, which was one-half of the net partnership assets.

Patella made an alternative calculation pursuant to the theory of unjust enrichment by placing a value on what he referred to as the Bartsocases’ “sweat equity.” Patella defined “sweat equity” as the services that one renders to a business or partnership for which one is not compensated. According to Patella, there are two types of partners. One supplies the money to capitalize the businesses and the other invests time in working in the businesses. Patella calculated the Bartsocas-es’ “sweat equity” from the data provided by Kiki Bartsocas as to the number of hours she and Gus Bartsocas had contributed to the service of the restaurant operations and the amount that a restaurateur would have to pay an employee to do the same work. The gross total for the years 1979 through 2000 was $1,595,750.00. To reach the unpaid sweat equity calculation, Patella took the gross figure and then subtracted the total proceeds the Bartso-cases withdrew from the business relationship during those years which was $384,519.00, yielding a net of $1,211,231.00 of sweat equity. This is the exact figure that the jury returned for the Bartsocases on their unjust enrichment claim.

The basis of a calculation for sweat equity was the testimony of Kiki Bartsocas which, as stated before, was based upon the hours that she and her husband worked and the value of that time based upon wages Boulis would have to pay to an employee to replace the Bartsocases.

The Estate argues, inter alia, that the claim for sweat equity is in reality a claim for past wages and is limited by section 95.11(4)(c), Florida Statutes (2001), which provides that an action to recover wages or overtime or damages or penalties concerning -the payment of wages and overtime shall be commenced within two years. Therefore the Estate asserts that the wage claim calculation is limited to the years 1999 and 2000. We agree.

The Estate also argues that the trial court should not have awarded the Bartso-cases prejudgment interest. We disagree.

“[W]hen a verdict liquidates damages on a plaintiffs out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss.” Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985). “[0]nce damages are liquidated, prejudgment interest is considered an element of those damages as a matter of law, and the plaintiff is to be made whole from the date of the loss.” Kissimmee Util Auth. v. Better Plastics, Inc., 526 So.2d 46, 47 (Fla.1988). Once the wages owed to the Bart-socases become liquidated, prejudgment interest will be an element of their damages.

We therefore reverse and remand for entry of a judgment on behalf of the Bart-socases which reflects the wage claim for the two years prior to the filing of their complaint plus prejudgment interest. As to the points raised on cross-appeal, we hereby affirm.

Affirmed in Part; Reversed in Part and Remanded with Directions. ■

KLEIN, J., and EMAS, KEVIN M., Associate Judge, concur.

      . Gus Boulis died on February 6, 2001.


text:
    James Frank MARSHALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0501.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    James Frank Marshall, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Raul SALDANA, Appellant, v. MIAMI-DADE COUNTY and Division of Risk Management, Appellees.
    No. 1D07-1131.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Rehearing Denied April 11, 2008.
    Richard A. Sicking, Coral Gables, for Appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Lynda S. Slade, Assistant County Attorney, Miami, for Appellees.
   PER CURIAM.

AFFIRMED. See City of Tarpon Springs v. Vaporis, 953 So.2d 597, 599 (Fla. 1st DCA 2007) (“All that [section 112.18, Florida Statutes] requires to overcome the presumption is competent substantial evidence that convinces a JCC that the disease was caused by some non-work-related factor, not that it was caused by any sort of ‘specific hazard or non-occupational hazard’.... ”).

ALLEN, KAHN, and DAVIS, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    David CLEARY, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D07-5708.
    District Court of Appeal of Florida, First District.
    March 10, 2008.
    Rehearing Denied April 17, 2008.
    David Cleary, pro se, Petitioner.
    Judson M. Chapman, General Counsel, and Mark J. Hiers, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WEBSTER and POLSTON, JJ., concur.

BENTON, J., DISSENTS with opinion.

BENTON, J.,

dissenting.

I dissent. I would issue an order to show cause.


text:
    Edward REEDER, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D07-3468.
    District Court of Appeal of Florida, First District.
    March 11, 2008.
    Rehearing Denied April 17, 2008.
    Edward Reeder, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Forbes v. Singletary, 684 So.2d 173 (Fla.1996).

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


author: PER CURIAM. PADOVANO, J.,

text:
    Mark Paul BEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4471.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the State recognizes, the trial court erred when it modified appellant’s probation to include electronic monitoring where the modification occurred more than 60 days after the original sentence was rendered in violation of rule 3.800(c), Florida Rules of Criminal Procedure. See Schutte v. State, 824 So.2d 308 (Fla. 1st DCA 2002). The amended order is reversed and the added condition is stricken.

WOLF and BENTON, JJ., CONCUR; PADOVANO, J., concurs in result with opinion.

PADOVANO, J.,

concurring in the result.

I join in the decision but I would recede from Schutte v. State, 824 So.2d 308 (Fla. 1st DCA 2002) and certify conflict with Kiriazes v. State, 798 So.2d 789 (Fla. 5th DCA 2001). In my view, these decisions are erroneous in that they deprive the state of its right to correct an illegal sentence under the provisions of rule 3.800(a) of the Florida Rules of Criminal Procedure.

The Fifth District held in Kiriazes that the trial court’s failure to impose a probation condition required by section 948.03, Florida Statutes, could not be corrected more than sixty days after the entry of the order placing the defendant on probation. The court reasoned that the sentence was not illegal, but rather that the failure to impose the condition merely made the sentence “incomplete.” We adopted this same approach in Schutte.

I believe that this newly adopted classification of “incomplete sentences” will do more harm than good. And I fear that the opportunity to classify a sentence as incomplete could be used to make an artificial distinction. If a sentence is incomplete because it fails to include a form of punishment that is required by the applicable statute, then it is also illegal. On the other hand, if the sentence is thought to be incomplete because it fails to include a form of punishment the trial judge could have imposed but did not, then it is not truly incomplete.

The result in the Kiriazes case seems entirely fair, given the facts of the case and the state’s failure to act diligently. However, the rationale for the decision could be applied in many other situations, some of them much more serious. If the trial court sentences a defendant for traf-fieking in cocaine to a term of imprisonment that is within the maximum allowed for the offense but fails to impose the applicable mandatory minimum term, the sentence would be illegal. Yet by the reasoning in Kiriazes and Schutte, it could be argued that the sentence is merely incomplete.

Another troubling aspect of these decisions is that they suggest that a trial judge could modify a sentence by imposing a harsher condition of probation, so long as the modification takes place within the sixty days allowed by rule 3.800(c). I do not think that implication is correct. The provisions of rule 3.800(c) are designed primarily to allow an opportunity to reduce or mitigate a sentence that is too harsh, and the rule is nearly always employed for this purpose by the defendant. It is difficult to imagine any circumstance in which the state could use the rule to increase a sentence, even within the allotted time.

Our supreme court held in Troupe v. Rowe, 283 So.2d 857 (Fla.1973) that jeopardy attaches when the defendant is sentenced and that the sentence cannot hereafter be increased. The court recognized that trial judges have a limited opportunity to modify a sentence but emphasized that this power is “subject of course to the constitutional guarantee against double jeopardy.” Troupe, 283 So.2d at 859; see also Ashley v. State, 850 So.2d 1265 (Fla.2003).

This guarantee applies to probationary sentences as well as prison sentences. See Lippman v. State, 633 So.2d 1061 (Fla.1994). For example, a trial judge could not place a defendant on probation for two years for a third-degree felony and then decide a month later to increase the term to three years. Although the increased term would be lawful for a third-degree felony, it would violate the constitutional guarantee against double jeopardy. The constitutional error would not be cured merely by complying with the sixty-day time limit in rule 3.800(c).

The Florida Supreme Court addressed the applicability of the double jeopardy clause to probationary sentences in Justice v. State, 674 So.2d 123 (Fla.1996). There, the court invalidated probation conditions that were outlined in the final judgment but not pronounced in open court at the time of the defendant’s sentencing. Quoting from Judge Griffin’s dissenting opinion, the Court observed:

An order of probation, like any other aspect of sentencing, ought not be a work in progress that the trial court can add to or subtract from at will so long as he or she brings the defendant back in and informs the defendant of the changes. To permit this would mean a lack of finality for no good reason and multiple appeals. It is not too much to ask of a sentencing judge to decide on and recite the special conditions of probation at the sentencing hearing, just as is done with the balance of the sentence. If the court has omitted a condition it wishes it had imposed, its chance has passed unless the defendant violates probation.

Justice, 674 So.2d at 126.

The decisions in Kiriazes and Schutte, run contrary to this principle, in that they suggest that a trial court could modify a probationary term to impose harsher conditions, so long as it does so within the sixty-day window in rule 3.800(c). In my view, that cannot be done at any time after the probationary conditions have been imposed at sentencing.

The correction of an illegal sentence is an entirely different matter. In the present case, the trial judge failed to impose a condition of electronic monitoring. Because the applicable statute mandated this condition for any person convicted of the offense at issue, the failure to impose the condition renders the sentencé illegal. By the text of rule 3.800(a), this kind of error can be corrected on the motion of the state “at any time.”

I think that this case should have been governed by rule 3.800(a) and not by rule 3.800(c), but that is not an unqualified endorsement of the idea that the state should have an indefinite opportunity to correct an illegal sentence. The points made here are based on the text of the rule, not the wisdom of the rule. In fact, a good argument could be made that the state should not have an indefinite right to challenge a sentence even if it can be shown that the sentence fell below the minimum term required by law.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court held that a statute allowing the government to appeal a sentence imposed in a criminal case did not violate the guarantee against double jeopardy. The Court came to this conclusion at least in part because the statute called for an immediate review of the sentence. As the Court explained, the defendant is charged with knowledge of the statute and its appeal provision, and “has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired.” DiFrancesco, 449 U.S. at 136, 101 S.Ct. 426.

The difference here is that the state’s right to challenge an illegal sentence is based on a rule of procedure, not a statute. Moreover, there is no time limit on the right. The provision in rule 3.800(a) allowing the state to challenge an illegal sentence at any time might not withstand double jeopardy analysis under the rationale of DiFrancesco. But the point made here, that the courts have confused a rule 3.800(a) motion to correct an illegal sentence with a rule 3.800(c) motion to modify a legal sentence, is based on the state’s right as it exists under the plain language of the rules. Whether it would be wise to place some time limit on the state’s right to challenge an illegal sentence is a question for another day.

In summary, I would hold that this case is governed by rule 3.800(a) and that the state has a right to seek a correction of the •sentence to include the condition of electronic monitoring, because it is required by law. I would make it clear that rule 3.800(c) can be used only to reduce or mitigate a sentence or to modify a sentence in a way that does not make the sentence more harsh. Rule 3.800(c) does not enable the court to increase a lawful sentence by adding a new condition of probation.

I agree that this case must be reversed, but were I not bound by our own precedent in Schutte, I would affirm.

      . The Florida courts have had a hard enough time in defining the phrase "illegal sentence”; they should not now embark on the task of defining and distinguishing sentences that are illegal from those that are merely incomplete. The Florida Supreme Court has struggled with the term "illegal sentence,” defining it three different ways in recent years. See Davis v. State, 661 So.2d 1193 (Fla.1995); State v. Mancino, 714 So.2d 429 (Fla.1998); Carter v. State, 786 So.2d 1173 (Fla.2001).

      . Chapter 924, Florida Statutes, entitled "Appeals and Collateral Review,” includes a provision that authorizes the state to appeal an illegal sentence. See § 924.07(l)(e), Fla. Stat. (2007). To exercise this right, the state would have to file an appeal within fifteen days of the judgment. See Fla. R.Crim. P. 9.140(c)(3). The state also has a right under rule 3.800(a) of the Florida Rules of Criminal Procedure to file a motion to correct an illegal sentence "at any time,” but there is apparently no counterpart provision for this right in Chapter 924.


text:
    Larry Warren MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5029.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    Richard R. Kuritz, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Bryan Jordan and Carolyn J. Mosley, Assistant Attorneys General, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant, Larry Warren Montgomery, appeals his convictions and sentences for organized fraud and grand theft. As properly conceded by the State, these convictions violate double jeopardy because they were based on the same facts. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (“It is undisputed that double jeopardy principles preclude convictions for both grand theft and organized fraud based on the same conduct.”) We therefore reverse and vacate the conviction and sentence for grand theft and remand this case to the trial court to correct the final judgment in accordance with this opinion. We affirm all other issues raised on appeal without further discussion.

AFFIRMED in part, REVERSED in part and REMANDED.

DAVIS, BENTON, and THOMAS, JJ„ concur.


author: CANADY, Judge.

text:
    Simon CRIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3296.
    District Court of Appeal of Florida, Second District.
    March 14, 2008.
   CANADY, Judge.

Simon Cribbs appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s denial of claim two without comment but reverse the denial of claim one and remand for resentencing.

Cribbs claimed that his sentence of fifteen years’ prison with a ten-year mandatory minimum as a violent career criminal (VCC) on his conviction for battery on a law enforcement officer (BO-LEO) is illegal because BOLEO is not a “forcible felony” that qualifies for VCC sentencing. See § 775.084(l)(d)(l)(a), Fla. Stat. (2001) (stating that a “forcible felony” is subject to VCC sentencing); § 776.08, Fla. Stat. (2001) (defining “forcible felony” and listing offenses which constitute forcible felonies); § 784.07(2), Fla. Stat. (2001) (defining the offense of battery on a law enforcement officer). The postconviction court erroneously denied the claim, finding that Cribbs’ offense qualified because there was evidence he used violence in its commission.

For an offense not specifically enumerated in section 776.08, the Florida Supreme Court has held that the use or threat of physical violence must be an essential element of the offense if it is to be considered a “forcible felony.” State v. Hearns, 961 So.2d 211, 215 (Fla.2007) (citing Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). The supreme court has also decided that “BOLEO is not a forcible felony under section 776.08 and should not [be] counted as a qualifying offense for VCC sentence enhancement” because one may commit the offense without the use or threat of violence. Hearns, 961 So.2d at 219. Consequently, we reverse the denial of Cribbs’ claim. Because BOLEO is a felony of the third degree pursuant to section 784.07, Florida Statutes (2001), and Cribbs’ fifteen-year sentence exceeds the statutory maximum for this offense, we remand for resentencing on count one without the VCC enhancement.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ., Concur.


text:
    John C. CARLSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-294.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    John C. Carlson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 921.0023(2), Fla. Stat. (2005) (“The permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum.... ”).