author: GROSS, J.

text:
    Michael RESENDES, Appellant, v. Ric L. BRADSHAW, Palm Beach County Sheriff, Appellee.
    No. 4D06-1503.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2006.
    Carey Haughwout, Public Defender, Daniel Cohen, Karen Fagan, and Nan Foley, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, for appellee.
   GROSS, J.

Michael Resendes was arrested on a warrant for burglary of a dwelling, in violation of section 810.02(1) and (3), Florida Statutes (2005), a second degree felony. In this habeas corpus proceeding, Resendes challenges the setting of “no bond” on this charge at his first appearance. We grant the writ and remand for an appropriate hearing.

Resendes’s first appearance before a judge was on April 11, 2006. The limited record from the first appearance hearing indicates the following: (1) Resendes had two warrants outstanding on misdemeanor cases where bond was set at $200 in each case; (2) Resendes had a previous failure to appear on another case in June, 2005; and (3) at the time of the felony arrest, Resendes was on probation. The state asked for a $25,000 bond and indicated that Resendes “will be violated.” The defense asked for a $5,000 bond. It appears from the record that the judge-was looking at some type of paperwork.

The court ruled:

Based on my reading of the case file and hearing other information as you all have provided to me and applying that to the statutes, I’m going to set no bond on the case.

The defense attorney asked the court for “an oral or written finding” of the “basis” for the “setting [of] no bond.”

The court replied:

Based on the information that I have received and reviewed up here, all the court files and the information provided by the State Attorney and the Public Defender, I find that he is — I am ordering no bond.

At a first appearance, a “judicial officer shall proceed to determine conditions of release pursuant to rule 3.131.” Fla. R.Crim. P. 3.130(d). Rule 3.131 is directed at the pretrial release decision. To implement the 1983 amendment to article I, section 14 of the Florida Constitution, the “Legislature enacted section 907.041, [Florida Statutes (2005) ], which provides a comprehensive statutory scheme setting forth the circumstances when a trial court may deny bond to a person charged with a crime.” State v. Paul, 783 So.2d 1042, 1046 (Fla.2001). The rules of criminal procedure adopted by the supreme court are consistent with the legislative scheme, which involves “a comprehensive set of procedures for pretrial detention, which provide a panoply of protections.” Id. at 1048.

Rule 3.132(a) allows the state to file a motion seeking pretrial detention at first appearance. When the state does not file such a motion, or the motion is facially insufficient, “the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1).” Fla. R.Crim. P. 3.132(a). In this case, the state did not seek pretrial detention, so the judge was not authorized to impose pretrial detention on the burglary charge, but was left to consider the “conditions of release” pursuant to rule 3.131(b)(1).

Even if the state had filed a motion for detention, a second problem with the lower court’s pretrial detention ruling is that it did not “contain findings of fact and conclusions of law to support it.” Fla. R.Crim. P. 3.132(c)(2); § 907.041(4)(c), (i); Paul, 783 So.2d at 1049 n. 11; Johnson v. Jenne, 913 So.2d 740, 741 (Fla. 4th DCA 2005); Buhbut v. Bieluch, 835 So.2d 1222 (Fla. 4th DCA 2003). A vague, general reference to “information” and “court files” “received and reviewed” is insufficient compliance with the procedural and statutory requirement of specific findings of fact that support a pretrial detention ruling. Having been charged with burglary of a dwelling, Resendes was a candidate for pretrial detention had the state filed a motion. See § 907.041(4)(a)16, Fla. Stat. (2005). Pretrial detention may have been appropriate on any number of grounds. See § 907.041(4)(c)1, 5, 6, 7. However, pretrial detention for these reasons would require specific findings.

We grant the petition for writ of habeas corpus and remand to the trial court to set an expedited hearing to determine the issue of pretrial release or detention according to rules 3.131 and 3.132.

WARNER and HAZOURI, JJ., concur.

      . This case does not involve the lower court's revocation of pretrial release on these preexisting misdemeanors as a result of the commission of the burglary. See § 903.0471, Fla. Stat. (2005); Parker v. State, 843 So.2d 871 (Fla.2003).

      . In a filing in support of his petition in this court, Resendes disputes that he is on probation. Nothing in this opinion precludes him from correcting any factual error in the bond hearing ordered in this opinion or in a rule 3.130(d) motion to set bond in the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    MICHAEL E. GREENE, P.A., a Florida professional corporation, and Michael E. Greene, individually, Appellant, v. LEASING ASSOCIATES, INC., Appellee.
    No. 4D05-1725.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied Aug. 23, 2006.

      Michael E. Greene, Coral Springs, for appellant.
    James C. Cunningham, Jr. of Berger Singerman, P.A., Miami, for appellee.
   GROSS, J.

This case involves a legal malpractice claim filed by a former client, appellee, Leasing Associates, Inc., against its former attorney, appellant, Michael Greene. The malpractice arises from Greene’s advice to Leasing Associates to pursue litigation and appeals in federal court, advice that led to the federal court’s imposition of monetary sanctions. The malpractice action was initiated according to the terms of a settlement agreement between Leasing Associates and its former adversaries in federal court. We conclude that this agreement is the equivalent of an assignment of the legal malpractice claim. Under Florida law, a legal malpractice claim is not assignable, so that the settlement agreement is void insofar as it pertains to the prosecution of the legal malpractice case. We reverse the judgment in favor of Leasing Associates and remand the case to the trial court “to determine how the parties intend to proceed in the absence of the agreement.” Weiss v. Leatherberry, 863 So.2d 368, 369 (Fla. 1st DCA 2003).

The federal case involves two contracts to which U.S. Pool Corporation was a party. The first transaction concerned two vehicle leases, where Leasing Associates leased vehicles to U.S. Pool. In the second transaction, a group of financing companies (the “MHR companies”) agreed to provide U.S. Pool with $2.7 million in working capital, through a secured convertible note purchase agreement (“NPA agreement”). Leasing Associates was not a party to the NPA agreement.

U.S. Pool filed bankruptcy. On behalf of Leasing Associates, Greene filed an emergency motion and an adversary complaint in the bankruptcy proceeding. After an evidentiary hearing, the bankruptcy judge denied the motion. Greene advised his client to appeal this ruling to the United States District Court for the Southern District of Florida. The district judge affirmed the bankruptcy judge. On Greene’s advice, Leasing Associates appealed the affirmance to the 11th Circuit Court of Appeals; however, the appeal was voluntarily dismissed.

On the adversary complaint, the bankruptcy judge granted a motion for summary judgment against Leasing Associates. The 42 page memorandum decision and order was based on the language of the NPA agreement, which created no third-party beneficiary rights in favor of Leasing Associates and which did not give Leasing Associates secured party status in the U.S. Pool bankruptcy proceeding.

On Greene’s advice, Leasing Associates appealed the adverse summary judgment to the district court. The district court affirmed the bankruptcy judge’s “excellent and well-reasoned” memorandum decision in all respects and found that Leasing Associates’ claims were “without merit.”

Again, Greene advised his client to appeal the district court’s decision. An appeal was taken and then voluntarily dismissed.

The MHR companies and the law firm for U.S. Pool in the bankruptcy, Berger Singerman, requested the district court impose sanctions against Leasing Associates and Greene pursuant to Federal Rule of Bankruptcy Procedure 8020 or 28 U.S.C. § 1927. They argued that Greene prosecuted a frivolous appeal from the bankruptcy judge’s memorandum decision. The district court ruled that “the appeal on this case [was] without merit and frivolous as the Order of the Bankruptcy Court disposed of all issues in [the] litigation.” The court held that U.S. Security and Berger Singerman were entitled to recover their attorneys’ fees, costs, and damages, with the amount to be determined by the bankruptcy judge.

All parties except for Greene joined in a settlement of the sanctions issue. An attorney who had acted as co-counsel with Greene in the bankruptcy agreed to pay $150,000; Leasing Associates agreed to pay $100,000. After these payments, there was still a deficit of $119,573.61 which the MHR companies and Berger Singerman desired to recover.

As a condition of the settlement, Leasing Associates agreed to pursue a malpractice action against Greene and pay Berger Singerman proceeds from the suit in an amount sufficient to cover five specified categories of legal fees and costs. Only after paying off these five specified claims, was Leasing Associates entitled to any money from a recovery from Greene. Leasing Associates agreed to “cooperate and assist in the prosecution” of the Greene malpractice action, which the settlement agreement described as “the essence of this Agreement ... [that] shall be enforced to assure its performance in its entirety.” Leasing Associates agreed to waive the “attorney client” and “attorney work product” privileges “applicable to any and all evidence relevant” to the malpractice action.

The settlement agreement required Leasing Associates to retain Berger Sing-erman to prosecute the Greene malpractice action. As part of the settlement, the company entered into a retainer agreement/engagement letter with Berger Sing-erman. The agreement provided that “services will be provided on an hourly basis,” and that the law firm would bill Leasing Associates for disbursements and costs. The agreement stipulated that the law firm’s “bills for professional fees and costs [the firm] will incur and expend in this representation will be paid only from” the proceeds of the malpractice suit against Greene. If Leasing Associates settled with Greene without the law firm’s “written consent,” or if it terminated the engagement without the firm’s consent, then the company was required to pay the firm the $119,573.61 deficit plus a reasonable hourly rate for the firm’s services in the malpractice case, to the extent that such amounts were “not previously paid” out of any settlement proceeds.

After an evidentiary hearing, the bankruptcy judge imposed sanctions against Greene in favor of the MHR companies and Berger Singerman. The judge found that the “testimony supports a finding that LAI, on advice of Mr. Greene, did not do a sufficient investigation of the underlying subordination claim.” The district court apparently reduced the amount of sanctions to $10,000, due to Greene’s inability to pay. That sanction has been affirmed by the 11th Circuit.

To recover the fees and costs paid to Greene and the amount paid to settle the claims for sanctions, Leasing Associates filed suit in circuit court for, inter alia, legal malpractice against Greene individually After the trial court granted a motion for partial summary judgment against Greene, the court entered a final judgment on the malpractice claim.

Greene argues that the trial court should have dismissed Leasing Associates’ malpractice claims because the settlement agreement was tantamount to an assignment that made the MHR companies and Berger Singerman the “actual but unnamed plaintiffs” in the malpractice lawsuit.

The general rule in Florida is that a cause of action for legal malpractice may not be assigned or transferred. See Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755, 759-61 (Fla.2005); Kozich v. Shahady, 702 So.2d 1289, 1290 (Fla. 4th DCA 1997); Washington v. Fireman’s Fund Ins. Co., 459 So.2d 1148 (Fla. 4th DCA 1984).

This rule is predicated upon the unique relationship between the lawyer and client. An injury resulting from an attorney’s negligence in the representation of a client is personal to the client. Consequently, a cause of actibn arising from the breach of a lawyer’s duty to a client can only be asserted by the client.

Weiss, 863 So.2d at 371. The main public policy reason behind the rule is that “the assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty.” Kaplan, 902 So.2d at 760 (quoting Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133 Cal.Rptr. 83, 87 (1976)).

These strong public policy considerations have led to the application of the general rule “even in the absence of a formal assignment of the claim.” Weiss, 863 So.2d at 371 (Fla. 1st DCA 2003); see Nat’l Union Fire Ins. Co. v. Salter, 717 So.2d 141 (Fla. 5th DCA 1998) (holding that insurance company could not pursue a legal malpractice claim under the company’s right of subrogation).

In Weiss, the adverse parties in a personal injury suit entered into a settlement agreement requiring “[the defendant] to immediately pursue a legal malpractice claim against [the defendant’s attorney] and to assign all of the benefits from the lawsuit to the [plaintiff.]” Id. at 370. Before entering into this arrangement, the plaintiff had obtained a judgment against the defendant, which she “agreed that she would not execute” as long as the defendant “diligently pursued the malpractice claim and cooperated with [the plaintiffs attorney] in prosecution of the claim.” Id.

The first district held in Weiss that the parties’ “agreement [was] the equivalent of an assignment of the malpractice claim.” Id. at 369. The plaintiff “traded her right to execute her judgment against” the defendant “for the right to obtain the proceeds” in the malpractice suit against the attorney. Id. at 372. The court found it significant that the defendant, as the nominal plaintiff in the malpractice suit, “had no control over the litigation.” Id. “The agreement required him to pursue the case and cooperate with a lawyer selected” by the plaintiff, who was one of the lawyers who represented the plaintiff in the underlying negligence suit and helped to obtain a judgment against the defendant. Id.

In this case, the agreement between Leasing Associates, the MHR companies, and Berger Singerman is analogous to the arrangement in Weiss. The MHR companies and Berger Singerman sought to recover an amount in excess of what they received in settlement from Leasing Associates. Leasing Associates had a malpractice claim against Greene for leading the company down the path to sanctions. The MHR companies and Berger Singerman traded their right to recover additional money from Leasing Associates for the right to recover in the company’s malpractice suit against Greene.

Most importantly, the terms of the settlement placed the reins of the malpractice lawsuit in the hands of Berger Singerman, leaving Leasing Associates with little actual control; the company’s right to recover money was sixth on a list of prioritized categories and if it settled or dismissed the lawsuit without Berger Singerman’s written consent, Leasing Associates was responsible to the law firm for the $119,573.61 deficit, plus the attorney’s fees and costs the law firm had incurred in the malpractice suit. Unlike the plaintiffi'as-signor in Kozich, Leasing Associates was not free “to control the conduct of [the litigation and] to accept or reject any settlement offers.” 702 So.2d at 1290. This is a case where Leasing Associates essentially turned its legal malpractice claim over to its former adversary, a situation “generally recognized as the worst excess to be avoided.” Sec. Nat'l Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934, 938 (Fla. 4th DCA 2005).

Having concluded that the agreement between Leasing Associates and Berger Singerman is an unlawful assignment, we agree with the conclusion in Weiss that “the cause of action asserted under the agreement cannot be maintained.” 863 So.2d at 373. “The invalidity of the agreement has no effect on the underlying cause of action for legal malpractice, assuming the claim is asserted by” a proper person. Id. We therefore reverse the judgment and remand the case to the trial court for a determination of “whether the action will be dismissed or whether it will be prosecuted independently of the agreement” between Leasing Associates and Berger Singerman. Id.

The parties have discussed numerous legal issues, some of which we will discuss in order to give direction to the case on remand.

Based on this record, we reject Greene’s attack on the summary judgment as to liability. Greene is not entitled to the defense of “judgmental immunity.” He advocated legal positions that were neither “fairly debatable” nor “unsettled.” See Haisfield v. Fleming, Haile & Shaw, P.A., 819 So.2d 182, 185 (Fla. 4th DCA 2002). There was no ambiguity in the pertinent provisions of the NPA. Greene cannot escape responsibility by arguing that Leasing Associates should bear some or all of the blame for the federal court filings. “A client cannot be found to be comparatively negligent for relying on an attorney’s erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise.” Tarleton v. Arnstein & Lehr, 719 So.2d 325, 331 (Fla. 4th DCA 1998) (citing Becker v. Port Dock Four, Inc., 90 Or.App. 384, 752 P.2d 1235, 1239 (1988)). Greene cannot avoid liability by blaming his co-counsel for the legal errors in the case; Greene was required to make his own independent evaluation of the legal and factual merits of the rule 60(b) motion and the adversary complaint. See Spazian v. Price, 763 So.2d 1047, 1049 (Fla. 4th DCA 1999) (rejecting an attorney’s argument that he was not negligent because he relied on the advice of another attorney regarding the application of a statute of limitations and stating that an attorney has “a continuing duty to make sure of the current status of the case”).

Finally, we find no abuse of discretion in the trial court’s granting of a protective order “as to any request which seeks discovery, directly or indirectly, pertaining to fraud in the matter of In re: U.S. Pool Corp.”

Reversed and Remanded.

WARNER and HAZOURI, JJ., concur.

      . Greene's brief does not contend that the judgment was incorrect as to the amount of damages.


author: PER CURIAM.

text:
    Andreas OBOJES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1945.
    District Court of Appeal of Florida, First District.
    June 9, 2006.
    Rehearing Denied Aug. 8, 2006.
    Andreas Obojes, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Santiago A. PACHECO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1197.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Santiago A. Pacheco, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Santiago A. Pacheco appeals the trial court’s order denying his Motion to Correct Illegal Sentence as to amount of jail credit. We affirm as the record reflects that the trial court credited the correct amount of time. If there is a problem in the jail time credited by the Department of Corrections, we affirm without prejudice for Pacheco to seek a proper award of jail credit through the Department of Corrections. See Woodson v. State, 765 So.2d 836 (Fla. 2d DCA 2000).


text:
    John M. FURMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2191.
    District Court of Appeal of Florida, First District.
    June 20, 2006.
    Rehearing Denied Aug. 8, 2006.
    John M. Furman, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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


text:
    George W. STRICKLAND, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-0164.
    District Court of Appeal of Florida, First District.
    June 27, 2006.
    Rehearing Denied Aug. 8, 2006.
    George W. Strickland, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee; Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing appeal of interlocutory order imposing lien on prisoner’s inmate account); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000) (holding order denying indigency status is not immediately reviewable). See also, Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005) (providing relief from indi-gency order where review was properly initiated following final order dismissing mandamus petition).

WOLF, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    Geraldo PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-633.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Arnstein & Lehr, and Carlos F. Gonzalez, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988); Marti v. State, 756 So.2d 224, 229 (Fla. 3d DCA 2000).


text:
    Nelson Tamayo MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1828.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Nelson Tamayo Martinez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SHEPHERD, JJ.
   PER CURIAM.

Nelson Tamayo Martinez appeals an order denying his second motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.

Defendant-appellant Martinez alleges that his counsel was ineffective for affirmatively misadvising him about the amount of time he could be sentenced to if he proceeded to a hearing on revocation of probation, as opposed to accepting a favorable fifteen-month plea offer from the State. Before the revocation hearing began, defense counsel stated on the record that if the defendant rejected the fifteen-month offer, “he is looking at thirty months, I believe, that’s what he scores out to.” The defendant rejected the plea offer and proceeded with the revocation hearing.

After the revocation hearing concluded, the trial court revoked the defendant’s probation. The court informed the defendant that the legal maximum was fifteen years and sentenced the defendant to twelve years of incarceration.

In the Rule 3.850 motion now before us, the defendant alleges that the foregoing statement by trial counsel constituted affirmative misadvice that the defendant’s maximum exposure in the case was thirty months of incarceration, whereas the actual maximum exposure was far in excess of that amount. The trial court denied the defendant’s motion on the ground that it was successive. The defendant has appealed.

The defendant has stated a cognizable claim. See Rudolf v. State, 851 So.2d 839 (Fla. 2d DCA 2003). Assuming the trial court was technically correct on the issue of successiveness, we think the case falls within the manifest injustice exception outlined in State v. McBride, 848 So.2d 287 (Fla.2003). See also Hunt v. State, 922 So.2d 452 (Fla. 4th DCA 2006); Morrison v. State, 932 So.2d 533 (Fla. 3d DCA 2006). The defendant’s claim of affirmative mis-advice appears to be documented on the face of the transcript. The defendant’s claim is not otherwise explained or refuted in the limited record now before us. See Fla. R.App. P. 9.141(b)(2)(D). Because the present record fails to show conclusively that the appellant is entitled to no relief, id., we reverse the order now before us and remand for an evidentiary hearing, or attachment of record excerpts conclusively refuting the appellant’s claim.

Reversed and remanded for further proceedings consistent herewith.


author: KELLY, Judge. NORTHCUTT, Judge,

text:
    Kenneth Loray ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4540.
    District Court of Appeal of Florida, Second District.
    June 28, 2006.
    Rehearing Denied Aug. 10, 2006.

      James Marion Moorman, Public Defender, and Joseph Shields, Jr., Assistant Public Defender, and Joseph N. D’Achille, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Kenneth Loray Ellis appeals his judgment and sentence for trafficking in cocaine and driving with a suspended license. We find no merit in the issues he has raised in this appeal and write to address only his argument that the trial court erred in denying his motion to suppress.

Officer Amanda Wilson was on routine patrol in Tampa when she noticed a car driven by Ellis moving along Comanche Avenue in a normal manner. As Officer Wilson does “all day long, every day of the week,” she “ran the tag” by entering the tag number into her patrol car’s computer system to request a report on the status of the tag. The response from this database query was “no record found.” Officer Wilson activated her lights and siren and followed Ellis to a residence about a block and a half away, where Ellis pulled into the driveway. Ellis could not produce a valid driver’s license or the registration information and was arrested for driving without a license. An ensuing search of the car incident to arrest yielded a black bag containing cocaine.

Ellis filed a motion to suppress, seeking to have the stop declared invalid and the fruits thereof suppressed. During the suppression hearing, Officer Wilson testified that the “no record found” response indicated to her that the car was not currently registered in the State of Florida and therefore was being operated in violation of section 320.02(1), Florida Statutes (1997). On cross-examination, she acknowledged that “it could mean other things, but it could mean other things that there’s something wrong with the tag in that particular vehicle.” In response to a question from the trial court asking whether the “other things” were “all illegal things” or “are there any legal things that it could be,” she stated that she “could not think of a legal thing.” She also acknowledged that there had been occasions when she had stopped cars on the basis of a “no record found” response and found that the ear was properly registered. She testified that “that’s why you conduct the stop to see the paper registration, to verify the paper.” The trial court denied Ellis’s motion to suppress, finding that the officer had a reasonable belief that Ellis’s car was not properly registered and therefore, she was entitled to conduct a stop to investigate the status of the registration.

Stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The essential purpose of the proscription in the Fourth Amendment is to impose a standard of “reasonableness” upon the exercise of discretion by a government official in order to safeguard the privacy and security of individuals against arbitrary invasions. Id. at 653-54, 99 S.Ct. 1391. “[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 654, 99 S.Ct. 1391. The reasonableness standard usually requires that the facts ;upon which an intrusion is based be capable of measurement against an objective standard such as probable cause or a less stringent test such as reasonable suspicion. Id. Accordingly, the Supreme Court has held that it is a violation of the Fourth Amendment to stop an automobile and detain a driver to check his license and registration unless “there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law.” Id. at 663, 99 S.Ct. 1391.

Thus, the issue we must decide is whether the officer who stopped Ellis had at least a reasonable, articulable suspicion that the car Ellis was driving was not properly registered. To justify an investigatory stop, an officer must be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In assessing the reasonableness of the stop, we must look at the facts available to the officer at the moment of the stop and determine whether they “ ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.” Id. at 21-22, 88 S.Ct. 1868 (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Further, in determining whether an officer acted reasonably, “due weight must be given ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27, 88 S.Ct. 1868.

Here, Officer Wilson had information that the Department of Motor Vehicles had no registration record for the tag affixed to Ellis’s car. She testified that to her that indicated that the car was not currently registered or that there was “something wrong” with the tag. We conclude that given her experience and the facts known to her at the time, it was reasonable for Officer Wilson to infer that the car was not properly registered. Accordingly, she was justified in stopping the car to investigate further.

In an analogous factual situation we have recognized that it is proper for an officer to stop a car to determine whether it has a current registration. In Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000), Palmer had a temporary tag properly displayed in the rear license plate bracket of his car; however, because lighting in the area was poor, a deputy who saw Palmer sitting in his car could not read the expiration date on the tag. When Palmer drove away, the deputy followed him onto a lighted street hoping to read the expiration date. Id. at 679. When he still could not read the date, he stopped Palmer due to the “possibly expired” tag. We concluded that the stop was justified, but only up to the point that the deputy could read the expiration date on the tag. Id. at 680; see also Borys v. State, 824 So.2d 204 (Fla. 2d DCA 2002) (upholding. a stop that was conducted because the officer was not able to read the expiration date on a temporary tag).

In Palmer and Borys, we found the stops justified even though the officers had no reason to suspect that the cars’ registrations were not current. In contrast, Officer Wilson actually had information indicating that the Department of Motor Vehicles had no record of the tag, which in light of her experience gave her a reason to suspect that the car was not properly registered or that there was “something wrong” with the tag. If the officers in Palmer and Borys were justified in stopping cars to investigate the status of their registrations simply because they could not determine that status from looking at the tag, then Officer Wilson was justified in stopping Ellis to investigate after having received information that indicated that the Department of Motor Vehicles had no record of the tag affixed to Ellis’s car.

Ellis argues that Officer Wilson did not have a reasonable suspicion because she admitted that there had been occasions when she had received the “no record found” response and then on further investigation determined the car was properly registered. “[E]ven in Terry the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Terry does not require absolute certainty nor does it require an officer to ignore facts that indicate an individual may be committing a crime simply because those facts do not rise to the level of probable cause to make an arrest. Terry, 392 U.S. at 21-22, 26, 88 S.Ct. 1868. Where the facts known to an officer suggest, but do not “necessarily” indicate ongoing criminal activity, an officer is entitled to detain an individual to resolve the ambiguity. Wardlow, 528 U.S. at 125, 120 S.Ct. 673.

Accordingly, we conclude that the trial court correctly denied Ellis’s motion to suppress, and finding no merit in the other issues he has raised, we affirm his judgment and sentence.

Affirmed.

VILLANTI, J., Concurs.

NORTHCUTT, J., Concurs specially with opinion.

NORTHCUTT, Judge,

concurring.

I concur in the decision. reflected in Judge Kelly’s nicely crafted opinion, but I would feel differently if I weren’t bound by this court’s decision in Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000), and .its progeny. In Palmer an officer stopped a vehicle because poor nighttime lighting conditions made it difficult for him to read the expiration date on the vehicle’s temporary license tag. This court observed that the stop was justified “because of the possibly expired” tag. Id. at 680. But the court concluded that it was unlawful for the officer to detain the motorist after he found that the tag had not expired.

I would have held that the Palmer stop was unlawful from its inception. The reason is that, as Judge Kelly has aptly .detailed in the case now before us, an investigatory stop is lawful only if it is initiated under circumstances that reasonably, i.e., objectively, lead the officer to suspect that a crime or violation is afoot. Palmer turned this test on its head: rather than examining the circumstances to determine whether they would cause a reasonable person to suspect that a violation was being committed, in that case the court condoned the stop because the circumstances did not permit the officer to dispel his simple curiosity about whether the motorist might possibly be committing a violation. Hypothetically, then, if in this case the computer system had been temporarily inoperative Palmer seemingly would have permitted the officer to stop every car she encountered simply because the circumstances prevented her from checking their registrations beforehand.

To be sure, this case presents a closer question than did Palmer because the officer’s computer inquiry — a reasonable attempt to satisfy her curiosity without intruding on the motorist’s Fourth Amendment rights — resulted in the “no record found” message. Setting Palmer aside for the moment, the question is whether that response produced in the officer a reasonable suspicion that the car was unregistered, or whether it merely failed to dispel the officer’s idle curiosity about its registration status.

Read literally, the “no record found” message imparted nothing one way or the other about the car’s registration. Only by putting this message in the context of the other possible responses programmed into the computer inquiry system could we discern whether it was intended to indicate that the car was unregistered. After all, there was a tag attached to the car, and no other circumstance suggested that anything was amiss. If the tag was unassigned or expired, might the response to the computer inquiry have said so? Based on the record created in the circuit court, we simply do not know; the record contains no evidence about how the tag inquiry computer program was supposed to work.

Instead, I suspect that my colleagues’ view of the case is at least somewhat informed by their own computing experiences. To a point, there is nothing wrong with this. Common experiences create common knowledge. Thus, for example, I would not bat an eye before voting to uphold a conviction for motor vehicle theft based on the victim’s testimony that he saw the defendant steal his “Chevy.” And it is certainly true that, a quarter century after the introduction of the personal computer, many of us have had the sometimes jarring experience of receiving a “no record found” message, or some such.

But there are a couple of reasons why I don’t think it is appropriate for this case to turn on a common understanding of the phrase “no record found.” The first stems from the fact that, while it is reasonable to suspect that a “Chevy” is a motor vehicle, it is not reasonable to suspect that a “motor vehicle” is a Chevy. The same principle applies here: in our common experience we know that “no record found” could mean that the record does not exist and we know that this explanation for the message is but one among a range of possibilities, wide or narrow, depending on all the circumstances. In other words, “no record found” is the equivalent of “motor vehicle,” not of “Chevy.” The second reason I would not apply a common understanding of the phrase “no record found” to this case is that the principle I just mentioned was borne out by the officer’s own testimony.

At the hearing on the motion to suppress, the officer conceded that her interpretation of the “no record found” response was her own subjective one. She testified that, to her, the message meant that the car was not currently registered. My colleagues in the majority conclude that, “given her experience and the facts known to her at the time,” it was reasonable for the officer to infer that the car was not properly registered.

But, in fact, the officer did not recount any previous experience that would support that conclusion. In fact, the evidence was to the contrary. In the officer’s only testimony about her prior experience she acknowledged that she had previously performed traffic stops after her computer returned “no record found” responses to her tag inquiries, only to discover that the vehicles were properly registered. She had received no explanation for this, but speculated that the Department of Motor Vehicles had made mistakes. No one asked, and the record does not disclose, whether this was a common occurrence or a rare one. With that information, we might be able to assess the reasonableness of the inference the officer drew from the computer message. Without it, we cannot. But the record suggests that, based on her experience, the officer herself might not have attached much significance to the “no record found” message beyond its failure to disprove the possibility that the car was unregistered. “There have been periods where the D.M.V. has entered things incorrectly,” she said. “That’s why you conduct the stop to see the paper registration, to verify the paper — .”

The State has pointed out to us that the evidence did not demonstrate that the message received by the officer was the result of an error. True enough. But the significance of the officer’s testimony was that she had received “no record found” messages in regard to cars that were properly registered. Whether mistaken or not, the relative frequency of those occurrences bears on whether the officer’s experience reasonably led her to suspect that Ellis’s car was unregistered based solely on that response to her inquiry.

I do not mean to suggest that a computer’s “no record found” response to an officer’s tag inquiry cannot reasonably cause the officer to suspect that the tag is not registered. But our duty in each case is to assess the reasonableness of the officer’s suspicion under all the circumstances. In this case, the record contains no evidence of the intended meaning of the phrase “no record found” as used in the tag inquiry computer program employed by the officer who stopped Ellis; we cannot conclude from our common knowledge of the phrase that it meant the car was unregistered; and the only evidence of the officer’s experience was to the contrary. Were it not for Palmer, I would vote to reverse because the State did not meet its burden to prove that the circumstances reasonably caused the officer to suspect that Ellis was driving an unregistered car. But, bound by that decision, I must concur in the affirmance.

      . Violation of section 320.02(1), which requires owners or persons in charge of a motor vehicle operated or driven on the roads of this state to register the vehicle in the state, is a second-degree misdemeanor pursuant to section 320.57(1), Florida Statutes (1997). When an owner registers a car, the Department of Motor Vehicles assigns a registration license number to the car and issues a registration certificate and a registration license plate to the owner that display the assigned number. § 320.06(l)(a), Fla. Stat. (1997).

      . In Diaz v. State, 800 So.2d 326 (Fla. 2d DCA 2001), this court also found that a stop was justified based on the officer's inability to read the expiration date on a temporary tag. In State v. Diaz, 850 So.2d 435, 437 (Fla.2003), the supreme court affirmed our decision but did not expressly decide whether a stop based on an officer's inability to read the expiration date of a temporary tag was justified, stating, "we assume for the purposes of this case that the initial stop by the deputy sheriff was legitimate, albeit based upon a barely justifiable purpose.”


text:
    Bryan W. PLUMMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4279.
    District Court of Appeal of Florida, First District.
    July 3, 2006.
    Rehearing Denied Aug. 4, 2006.

      James T. Miller, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Bryan Plummer (Appellant) appeals the denial of his 3.800(b) motion, three eviden-tiary rulings, and a ruling that section 316.193, Florida Statutes (2002), is constitutional. We reverse the denial of Appellant’s 3.800(b) motion and affirm the trial court on the other issues without discussion.

While driving under the influence of alcohol, Appellant collided with an oncoming vehicle causing the death of three people and the serious bodily injury of another. Consequently, Appellant was charged with DUI manslaughter (Counts I — III); DUI resulting in serious bodily injury (Count IV); and vehicular homicide (Counts V-VII). A jury found Appellant guilty as charged on Counts I-IV and guilty of the lesser offense of culpable negligence for Counts V-VII.

At the sentencing hearing, the trial court abated Counts V-VII (because they violated double jeopardy) and orally sentenced Appellant to a total of 36 years in prison. Appellant’s written judgments also sentenced him to a total of 36 years, but ■ adjudicated guilt and imposed sentences on all seven counts with his Criminal Punishment Code (CPC) scoresheet assessing .6 points for the previously abated culpable negligence counts.

After the sentencing hearing, Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) contending: (1) his 36-year total sentence exceeded the maximum sentence allowed under the CPC, because the trial court incorrectly believed the statutory max for Counts I — III was 20 years instead of 15 years; (2) the written judgments and sentences for Counts V-VII violated double jeopardy and needed to be vacated; and (3) the scoresheet points for Count IV were illegal pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury never made an express finding that the “serious” bodily injury was “severe.”

The State conceded Appellant’s first two contentions, but disagreed with Appellant’s third contention that the severe bodily injury scoresheet points were illegal. The trial court granted Appellant’s motion more than 60 days after it was filed; thus, it is deemed to have been denied. See, e.g., Hart v. State, 773 So.2d 1263 (Fla. 1st DCA 2000). Nevertheless, because Appellant filed the motion under rule 3.800(b)(2), his contentions are preserved for our review. Fla. R.Crim. Proc. 3.800(b)(2); see also Hart, 773 So.2d at 1264.

The trial court properly assessed score-sheet points for severe bodily injury. See Arrowood v. State, 843 So.2d 940, 941 (Fla. 1st DCA 2003) (“The jury’s findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points.”). However, as the State concedes, the sentences on Counts I — III exceed the 15-year statutory máximums, and the written judgments and sentences as well as the score-sheet points for Counts V-VII violate double jeopardy.

We reverse Appellant’s sentences and remand for resentencing. On remand, the trial court must announce a separate sentence on each count. See Fla. R.Crim. Proc. 3.701(d)(12). Although the trial court may again sentence Appellant to a total of 36 years, the court may not exceed the statutory máximums for Counts I — III and must use a corrected CPC scoresheet.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, LEWIS, and HAWKES, JJ., concur.


text:
    Larry Keith JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2227.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Larry Keith Jackson, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Larry Keith Jackson appeals the summary denial of his rule 3.850 motion for post-conviction relief. At trial appellant was convicted of two counts of robbery with a firearm. In his motion he alleged that his attorney provided ineffective assistance by failing to discover a police report which included an eyewitness’s description of the robbery suspects. He also raised a related claim arguing that the state’s failure to provide this police report was a discovery violation. We affirm the denial of the motion because appellant has not shown that there is a reasonable probability the eyewitness’s testimony would have affected the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

GUNTHER, KLEIN and HAZOURI, JJ., concur.


text:
    Bobby Derel EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2905.
    District Court of Appeal of Florida, First District.
    July 7, 2006.
    Rehearing Denied Aug. 10, 2006.

      Bobby Derel Evans, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: KLEIN, J.

text:
    Phillip OBAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1088.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Rehearing Denied Aug. 28, 2006.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Defendant was convicted of tampering with evidence because, as an officer was about to stop defendant, who was on a bicycle, defendant opened a container, dropped cocaine rocks on the ground, and tossed the container five feet. The court should have granted his motion for judgment of acquittal.

One officer testified that, after seeing defendant interact with another man and manipulate something with his hands, he decided to stop defendant for not having a light on his bicycle. A second officer who was with the first officer, while they were driving parallel with defendant, saw defendant use his left hand to “tumble out” rock like substances. After they ordered defendant to stop, the officer saw defendant toss a pill container a distance of approximately five feet. After retrieving the pill container, the officer found six pieces of cocaine rock and the cap to the container between the grass and the sidewalk, where the officer had seen appellant drop them while riding his bicycle.

Tampering with evidence is defined in section 918.13(1), Florida Statutes (2004) as follows:

No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation;

In Boice v. State, 560 So.2d 1388 (Fla. 2d DCA 1990), it was held that tossing away a small bag of cocaine, while in the presence of arresting officers at the scene of a sale, did not violate the tampering statute, but was merely abandonment of evidence. Boice, however, was criticized by our supreme court in State v. Jennings, 666 So.2d 131 (Fla.1995), in which the defendant swallowed cocaine rocks which were never recovered. In holding that swallowing could constitute tampering, the supreme court explained that it disagreed with Boice:

to the extent it can be read to mean that tossing evidence away in the presence of a law enforcement officer does not, as a matter of law, constitute a violation of the statute. Depending upon the circumstances, such an act could amount to tampering or concealing evidence. An affirmative act of throwing evidence away constitutes more than mere abandonment. We conclude that the trial court’s ruling is rooted in an overly broad reading of Boice and find that swallowing an object clearly constitutes altering, destroying, concealing, or removing a “thing” within the meaning of section 918.13.

Jennings, 666 So.2d at 133.

Shortly after our supreme court decided Jennings, the state appealed a trial court order dismissing a tampering charge in State v. Harper, 800 So.2d 708 (Fla. 5th DCA 2001), in which the trial court had followed Boice. In Harper the defendant, during a traffic stop, instructed a passenger in his vehicle to throw drugs and paraphernalia out the window. The opinion does not state whether the evidence was recovered, but merely reverses because the trial court had relied on Boice, and Boice had been criticized in Jennings.

In Jennings, as the quote indicates, our supreme court did not hold that tossing evidence is always tampering. It simply held that the Boice court was wrong to the extent it held that tossing evidence away cannot constitute tampering as a matter of law. Each case, accordingly, must be decided on its facts.

We are unable, on these facts, to accept the state’s argument that defendant violated the statute. If defendant had dropped or thrown the items so that they could not have been retrieved, it would be another matter, like swallowing. In this case, however, where he merely dropped the cocaine rocks and tossed the container on the ground, and both were easily found, the evidence was insufficient. Otherwise a tampering conviction could be obtained whenever a suspect merely drops drugs on the ground.

Reversed.

WARNER and GROSS, JJ., concur.


author: FLETCHER, Judge. COPE, C.J.

text:
    Loriana M. NOVOA, Appellant, v. Mariano DE SOCARRAZ, Appellee.
    No. 3D06-1618.
    District Court of Appeal of Florida, Third District.
    July 17, 2006.
    Rosemarie S. Roth; Roy D. Wasson and Annabel C. Majewski, Miami, for appellant.
    Jacqueline Marie Valdespino, Miami, for appellee.
    Before COPE, C.J., and FLETCHER, J., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

This is an appeal from a non-final post-dissolution order temporarily modifying the visitation schedule of the parties’ five minor children. We reverse.

The children annually travel with the mother to Spain during the month of July, and are currently in Spain with her. This has been the parties’ practice since the 2001 dissolution judgment. The father sought to have the children return to Miami two weeks early, temporarily altering the visitation schedule in order that the children may attend his family’s July reunion. However, the parties by settlement agreement approved by the court have specifically fixed the dates of visitation.

We find that the father has not shown by competent substantial evidence, nor did the court’s order reflect a finding of, a substantial change in circumstances warranting the last-minute modification of the children’s 2006 summer visitation schedule. See Barrett v. Barrett, 862 So.2d 100 (Fla. 2d DCA 2003)(holding that competent, substantial evidence was necessary to support the trial court’s conclusion that a substantial change in circumstances occurred and that it was in the child’s best interest to have increased visitation with his father); Ventriglia v. Vaughan, 623 So.2d 836 (Fla. 2d DCA 1993)(ruling that in order to modify visitation, parent must prove a material and substantial change of circumstances and that any proposed change in visitation would be in the best interests of the child); Buttermore v. Meyer, 559 So.2d 357 (Fla. 1st DCA 1990)(holding that modification of visitation requires competent substantial evidence of substantial or material change in circumstances of the parties since entry of original custody and visitation order, and that the welfare of the child will be promoted by such modification); Hunter v. Hunter, 540 So.2d 235 (Fla. 3d DCA 1989) (“Visitation rights may be modified if there is a substantial change in circumstances and the modification will benefit the child.”). In this instance, the father’s and mother’s plans are simply two competing interests regarding the social and educational well being of their children.

This court’s ruling is effective immediately and will not be delayed by the filing of a motion for rehearing or other post-decision motion.

Reversed.

SCHWARTZ, Senior Judge, concurs.

COPE, C.J.

(concurring).

Under the circumstances of this case, I concur. I agree with the trial judge that it is ordinarily in the childrens’ best interest to participate in family events, and that temporary modifications may be justified in some circumstances — including family reunions — to make that possible. I do not understand the majority opinion to say otherwise.

In this instance, however, the parties’ agreed visitation schedule provides for the mother to have the children each July when she takes them to Spain. The record reflects that the mother voluntarily shortened her July visitation in 2005 so the children could attend the father’s family reunion in Oklahoma. This year the father demanded the same without, so far as I can tell, any proposal for adjusting the mother’s visitation to compensate for the fact that she would be returning the children 9 days early. When the mother attempted to state what she had been prepared to do this year, the father successfully kept the mother’s position from the court by objecting that this amounted to settlement negotiations. The father waited until the eleventh hour to file his motion, after travel arrangements had already been made. The fact that the father will pay for the expense of changing the children’s air tickets does not adjust for the mothers loss of the agreed summer visitation time and, absent circumstances more compelling than these, such changes should not be ordered at the last minute.

If this were a one-time or rarely-occurring reunion, I would agree with the trial court’s decision to grant temporary relief. However, since this apparently is an annual reunion (about which no provision exists in the parties’ visitation agreement), and the father is asking that the children attend for the second year in a row, his 2006 request cannot fairly be viewed as requesting “temporary” relief. If this is to be an ongoing issue, then it should be addressed in the father’s pending motion to modify several aspects of the summer visitation schedule, which has not yet been heard.


author: RAMIREZ, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. MIAMI MEDICAL GROUP, INC. a/a/o Felix Rodriguez, Respondent.
    No. 3D06-87.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Michael J. Neimand, Miami, for petitioner.
    Jose R. Iglesia & Associates, and Mari Sampedro-Iglesia, for respondent.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Petitioner United Automobile Insurance Company seeks certiorari review of an order issued by the circuit court sitting in its appellate capacity which awarded appellate attorneys’ fees to respondent Miami Medical Group, Inc. We grant the petition, finding that the order awarding appellate attorneys’ fees departs from the essential requirements of the law.

United Automobile is the defendant in an action to recover personal injury protection (PIP) benefits filed in the county court where Miami Medical Group obtained a jury verdict in its favor. The trial court found that Miami Medical Group was entitled to attorney’s fees and awarded fees, including a 1.5 multiplier. United Automobile timely appealed the order granting the multiplier, raising only the issue of the appropriateness of the multiplier. Miami Medical Group filed its Answer Brief and then its Motion for Attorney’s Fees pursuant to section 627.428, Florida Statutes. Miami Medical Group then filed a Motion for Sanctions pursuant to section 57.105, Florida Statutes, for United Automobile’s failure to withdraw its appeal. On December 6, 2005, the Appellate Division for the Eleventh Judicial Circuit affirmed, without written opinion, the order granting Miami Medical Group a fee multiplier. The Appellate Division also granted Miami Medical Group’s motion for attorney’s fees and remanded the cause to the trial court for a determination as to reasonable fees. The opinion did not state any reasons for awarding fees. United Automobile filed a motion for rehearing, which the court denied. This petition followed.

A petition for second-tier certio-rari may be granted only in those instances in which the lower court did not afford procedural due process or departed from the essential requirements of the law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003). A failure to observe the essential requirements of law has been held synonymous with a failure to apply the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). Furthermore, relief may not be granted unless it is determined that the circuit court departed from the essential requirements of law which resulted in a miscarriage of justice. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000).

We find that the circuit court acting in its appellate capacity departed from the essential requirements of the law when it awarded appellate attorney’s fees after it affirmed the trial court’s order awarding Miami Medical Group an attorney’s fee multiplier. A party is not entitled to fees for the time spent litigating the propriety of a fee multiplier because the multiplier concerns only the amount of the fee to be awarded, and not the matter of entitlement, and thus is not recoverable. See Progressive Express Ins. Co. v. Physician’s Injury Care Ctr., Inc., 906 So.2d 1125 (Fla. 5th DCA 2005); Mercury Cas. Co. v. Flores, 905 So.2d 179 (Fla. 3d DCA 2005), review pending, 928 So.2d 335 (Fla.2006); Allstate Indem. Co. v. Hicks, 880 So.2d 772 (Fla. 5th DCA 2004).

Moreover, the attorney’s fees award cannot be sustained pursuant to section 57.105 as a sanction for pursuing a frivolous appeal. The order awarding attorney’s fees on this ground also departed from the essential requirements of the law because it did not contain specific findings that this appeal was neither supported by the facts nor the application of the law. Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla.2005); Kurzweil v. Larkin Hosp. Operating Co., 684 So.2d 901 (Fla. 3d DCA 1996). This failure to follow these established principles of law causes a material injustice to United Automobile, justifying the issuance of a writ of certiorari.

Miami Medical Group does not quarrel with any of the facts presented in the petition, nor with the case law, but would have us deny the writ and remand to allow the circuit court the opportunity to elaborate on its order granting fees in the event the award was based on section 57.105, Florida Statutes. Instead, we treat Miami Medical Group’s response as a confession of error because it acknowledges that the order awarding fees is not supported under section 57.105, Florida Statutes. See Forbes v. Crosby, 866 So.2d 198 (Fla. 1st DCA 2004). We thus grant the petition, issue a writ of certiorari quashing the order awarding Miami Medical Group appellate attorney’s fees for litigating the appropriateness of a fee multiplier or as a sanction, and remand the matter to the circuit court for a determination as to whether the record supports the award of fees as a sanction. See Solimando v. Aloha Medical Ctr., 566 So.2d 580 (Fla. 2d DCA 1990).

Petition for writ of certiorari granted.


text:
    Joan RUTHERFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1080.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Joan Rutherford, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Joan Rutherford appeals from an order denying a motion under Florida Rule of Criminal Procedure 3.850. Although the trial court indicates on the order that the denial is supported by the attached transcript, that transcript is not of the plea colloquy, has no discernable bearing on the issues raised in Rutherford’s 3.850 petition, and does not conclusively support the decision to deny Rutherford’s petition for relief. On appeal from a summary denial, this court must reverse unless the postcon-viction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A) and (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Jacques ALTERMA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1234.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Jacques Alterma, in proper person.
    Charles J. Crist, Jr., Attorney General, for Appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal from an order summarily denying a motion under Florida Rule of Criminal Procedure, 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Daniel BERGMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-322.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Daniel Bergman, in proper person.
    Charles J. Crist, Jr., Attorney General, and Olga Villa, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Whitfield v. State, 864 So.2d 562 (Fla. 1st DCA 2004).


text:
    Carlos MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1406.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Carlos Martinez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Wallace WADE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-378.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Wallace Wade, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Joshua A. HAMILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1150.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Joshua A. Hamilton, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Olsen v. State, 691 So.2d 17 (Fla. 3d DCA 1997).


author: PLEUS, C.J.

text:
    L.M.C. and A.O., Parents of A.E., and T.C., etc., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-713.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2006.
    Timothy A. Straus, of Moyer, Straus & Patel, Altamonte Springs, for Appellant, L.M.C.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant, A.O.
    Charles D. Peters, Orlando, for Appel-lee.
   ON MOTION FOR REHEARING

PLEUS, C.J.

We deny the Department of Children and Families’ motion for certification, grant its motion for rehearing, withdraw our prior opinion and substitute this one in its stead.

The parents appeal a shelter order entered after the trial court denied their request to present evidence on the issue of probable cause. We have previously held that parents have a statutory right to present evidence contesting probable cause at shelter hearings. See A.M.T. v. Dep’t of Children and Families, 890 So.2d 551 (Fla. 5th DCA 2005); S.M. v. Dep’t of Children and Families, 890 So.2d 552 (Fla. 5th DCA 2005); In re J.P., 875 So.2d 715 (Fla. 2d DCA 2004). While we are sympathetic to the desire of trial courts to conduct shelter hearings in an informal and expeditious manner, those concerns do not outweigh the right of parents to be heard initially when faced with removal by the State of their children from their home. Accordingly, we reverse.

REVERSED.

MONACO and EVANDER, JJ., concur.


text:
    Jose LOPEZ, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D05-4433.
    District Court of Appeal of Florida, First District.
    July 26, 2006.

      Jose Lopez, pro se, Petitioner.
    Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner, Jose Lopez, seeks certiorari review of the trial court’s order of indigen-cy, which ordered the Department of Corrections (“Department”) to place a lien on his inmate trust account for the full amount of his court costs and fees and to withdraw and forward any money maintained in the account as provided in section 57.085, Florida Statutes. He argues that, pursuant to Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), his mandamus proceeding was a collateral criminal proceeding to which section 57.085 was inapplicable and, thus, that neither the lien nor the Department’s withdrawal and forwarding of money towards payment of the lien was statutorily authorized. Although we agree, petitioner has sought the wrong remedy. Therefore, we sua sponte treat his petition for writ of certiorari as an appeal from the trial court’s final order dismissing his mandamus petition, reverse the order of indigency to the extent that it orders the Department to impose a lien on petitioner’s inmate trust account and to withdraw and forward money maintained in the account pursuant to section 57.085, and remand for further proceedings.

Petitioner filed a Petition for Writ of Mandamus, arguing that the Department incorrectly structured his sentences in two different cases to run consecutively and requesting an order compelling the Department to run the sentences concurrently. The trial court subsequently issued an order of indigency, in which it ordered the Department to place a lien on petitioner’s inmate trust account in the amount of $280 (a $255 filing fee plus a $25 partial payment setup fee) and to withdraw and forward money maintained in the account towards payment of the lien. Petitioner filed a Motion for Reconsideration of Order of Indigency and for Return of Court Costs and Fees, requesting that the trial court reconsider its determination that section 57.085 applied to the proceeding and seeking the return of all costs and fees collected from him and that the lien be removed from his inmate trust account. The trial court denied the motion. Ultimately, the trial court dismissed petitioner’s mandamus petition as moot because the Department restructured his sentences to run concurrently, which changed his tentative release date from April 22, 2013, to December 18, 2008, before the trial court ruled on the petition. This proceeding followed.

Although petitioner seeks certio-rari review of the order of indigency, he could have sought review of the order on plenary appeal from the trial court’s final order dismissing his mandamus petition. See Cox v. Crosby, 31 Fla. L. Weekly D310, *1, — So.2d -, -, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006) (granting the appellant’s motion for review of order of indigency and reversing the order to the extent that it imposed a lien on his inmate trust account in an appeal from the trial court’s order denying his mandamus petition); Banks v. State, 916 So.2d 35, 35 (Fla. 1st DCA 2005) (holding that an interlocutory order granting indi-gency status and imposing a lien on a prisoner’s trust account for payment of court costs and fees is not an immediately appealable order and dismissing the appeal without prejudice to the appellant’s right to seek review of the order imposing the lien upon entry of a final, appealable order); Baldwin v. Crosby, 905 So.2d 250, 251 (Fla. 1st DCA 2005) (concluding that the petitioner’s proper remedy was to file a motion in the trial court seeking to remove the lien on his inmate trust account, secure a ruling, and, if necessary, raise the issue when appellate review of a final order in the proceedings below was sought); Cason v. Crosby, 892 So.2d 536, 536-37 (Fla. 1st DCA 2005) (reviewing both the circuit court’s order dismissing mandamus petition and its order of indigency and vacating the order of indigency to the extent that it imposed a lien on the appellant’s inmate trust account); see also Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000) (holding that although this Court’s review of a circuit court’s order regarding a prisoner disciplinary proceeding is properly by certiorari where the circuit court reviewed the Department’s decision on the merits, where the circuit court proceeding is concluded on grounds other than the merits, the order may be appealed). Thus, petitioner has failed to demonstrate that the order of indigency will cause irreparable harm that could not have been remedied on plenary appeal, as is required to demonstrate an entitlement to certiorari relief. See City of Jacksonville v. Rodriguez, 851 So.2d 280, 281 (Fla. 1st DCA 2003). However, because we must treat the cause as if the proper remedy were sought, see Fla. R.App. P. 9.040(c), and the instant petition was filed within thirty days after the entry of the trial court’s order dismissing petitioner’s mandamus petition, see Fla. R.App. P. 9.110(b), we sua sponte treat the petition as an appeal from that order.

Section 57.085(5), Florida Statutes (2004), provides that when a prisoner is found to be indigent, the court shall order the prisoner to make monthly payments of at least twenty percent of the balance of the prisoner’s trust account as payment of court costs and fees and that when such payment is ordered, the Department shall place a lien on the inmate’s trust account for the full amount of court costs and fees and withdraw money maintained in the account and forwai'd it, when the balance exceeds $10, to the appropriate clerk of court until the prisoner’s court costs and fees are paid in full. However, section 57.085(10), Florida Statutes (2004), exempts “collateral criminal proceedings” from the scope of section 57.085. In Schmidt, the supreme court held that an action challenging the forfeiture of a portion of a prisoner’s previously earned gain time constitutes a collateral criminal proceeding because the end result is the same: the inmate’s time in prison is directly affected. 878 So.2d at 367. Thus, the supreme court concluded that section 57.085 was inapplicable to such proceedings, which are instead governed by the general indigency statute, section 57.081. Id. at 367 n. 7. Pursuant to Schmidt, a mandamus petition alleging, as petitioner’s did, that the Department miscalculated an inmate’s tentative release date has been held to constitute a collateral criminal proceeding. See Small v. Crosby, 877 So.2d 911, 911 (Fla. 4th DCA 2004).

In Cason, upon which petitioner relies, the appellant sought review of both the trial court’s dismissal of his mandamus petition and its order of indigency finding the appellant unable to pay the appellate filing fee but placing a lien on his inmate trust account. 892 So.2d at 537. Because the action was a collateral criminal proceeding, it was exempt from section 57.085 and instead governed by section 57.081. Id. We noted that unlike section 57.085, section 57.081 does not specifically state that a lien may be placed on a prisoner’s trust account to collect filing fees, that where the Legislature includes particular language in one section of a statute but not in another section of the same statute, the omitted language is presumed to have been excluded intentionally, and that although the Legislature could have amended section 57.081 to provide for collection of filing fees upon an indigent person’s future ability to pay when section 57.085 was enacted and collateral criminal proceedings were exempted from its reach, it had not done so. Id. Thus, we concluded that the provision authorizing the imposition of a lien on inmate trust accounts does not apply to indigency candidates under section 57.081. Id. Because there was no statutory authority for the imposition of the lien and because a lien may only be imposed by contract or by operation of law, we vacated the circuit court’s order of indigency to the extent that it imposed the lien on the appellant’s inmate trust account. Id. at 537-38.

Based on the foregoing authorities, petitioner’s action for mandamus relief was a collateral criminal proceeding because it challenged the Department’s calculation of his sentences as consecutive rather than concurrent, which resulted in an erroneous tentative release date and, thus, directly affected his time in prison. Therefore, section 57.081, rather than section 57.085, was applicable in petitioner’s mandamus proceeding. As in Cason, the trial court in this case lacked statutory authority to order that the Department impose a lien upon petitioner’s inmate trust account and withdraw and forward money from the account to be paid towards the lien.

Accordingly, we REVERSE the order of indigency to the extent that it orders the Department to impose a lien on petitioner’s inmate trust account and to withdraw and forward money maintained in the account as provided in section 57.085 and REMAND the cause for further proceedings consistent with this opinion.

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


author: MAY, J.

text:
    Sainfrene SAINTELUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3981.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    Sainfrene Saintelus, Century, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals the summary denial of his rule 3.850 motion for post-conviction relief. He argues his trial counsel was ineffective by failing to properly object to the jury instructions on burglary. We disagree and affirm.

A dispute between the defendant and a former girlfriend led to his conviction for burglary of a dwelling. In a classic “he said, she said” scenario, the defendant entered the victim’s home in the early morning hours using a key. The defendant claims that he entered the home to retrieve his personal items and had the victim’s permission to be there. The victim claimed the defendant had been stalking her and entered her home without permission. Earlier that evening the victim had called the police to remove the defendant from the premises.

Once inside the home, the defendant and the victim argued; it evolved into a physical altercation. Ultimately, the victim left the home and contacted the police. The police arrested the defendant, who was then charged with burglary with a battery and aggravated stalking.

During closing argument, defense counsel argued that the defendant was guilty of bad judgment, but had the victim’s permission to enter the home. He argued that the defendant was “a welcomed regular visitor,” and that he wasn’t even guilty of a trespass. The State responded that the defendant had been escorted off the premises by the police earlier that evening. When the defendant returned in the early morning hours, he used a key that no one knew he had to gain stealthy entry into the home. The existence or lack of consent therefore became a focal issue of the ease.

Defense counsel did not object to any of the proposed instructions or the verdict form during the charge conference. The court instructed the jury on the elements of burglary with a battery and the lesser-included offenses of burglary of a structure occupied by a human being, burglary of a residence, and trespass, as well as aggravated stalking and the lesser-included offense of stalking. The court specifically instructed the jury:

Before you can find the defendant guilty of burglary of a dwelling with intent to commit battery, the State must prove the following here element [sic] beyond a reasonable doubt:
One, Sainfrene Saintelus entered or remained inside the structure owned by or in the possession of Suzette Rose Perez. And two, Sainfrene Saintelus did not have the permission or consent of Suzette Rose Perez, or anyone authorized to act for her, to enter or remain in the structure at the time.
At the time of entering and/or remaining in the structure Sainfrene Saintelus had a fully-formed, conscious intent to commit the offense of battery in that structure.
Proof of the entering of a structure stealthily and without the consent of the owner or occupant may justify a finding that the entering was with the intent to commit a crime if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent existed.

After a brief side bar following a defense objection, the court then read the following:

Before you can find the defendant guilty of trespass in a structure, the State must prove the following three elements beyond a reasonable doubt:
One, Sainfrene Saintelus willfully entered and/or remained in the dwelling, having been authorized, licensed, invited to enter and/or remain in the dwelling, willfully refused to depart after having been warned by the owner and/or lessee, Suzette Rose Perez to depart.
Second, the dwelling was in the lawful possession of Suzette Rose Perez.
And third, Sainfrene Saintelus’s entering and/or remaining in the property was without the permission, expressed or implied, of Suzette Rose Perez, or any other person authorized to give that permission.

The jury found the defendant not guilty of aggravated stalking and not guilty of burglary with a battery, but found him guilty of the lesser-included offense of burglary of a dwelling. The court sentenced the defendant to twelve years in prison. This court affirmed the conviction on direct appeal, but remanded it to the trial court to correct the wording of the judgment.

In his motion for post-conviction relief, the defendant argues his trial counsel rendered ineffective assistance of counsel in failing to object to the standard jury instructions on burglary. He suggests the jury was confused by the “remaining in” language contained in the burglary instruction. We disagree.

In Lopez v. State, 805 So.2d 41 (Fla. 4th DCA 2002), this court held that “the burglary instruction may not include the phrase ‘remaining in’ ” where the evidence establishes that “entry was without permission.” Id. at 43. In this case, however, the defense introduced evidence and argued that the defendant had the victim’s consent to enter the residence. While disputed by the victim, who denied having given the defendant permission to enter, the jury considered evidence that the defendant entered either with the victim’s consent, but “remained in” after consent had been withdrawn, or made a stealthy entry by using a key without the victim’s consent. Thus, the alternative language in the burglary instruction was applicable. There simply was no error in the instruction given, and, therefore, no ineffective assistance of counsel in failing to object to the instruction.

Affirmed.

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


text:
    Lisa Marie FALCO, individually and as the parent and natural guardian of the Plaintiff, Devon Neely, a minor, Petitioner, v. BRIDGESTONE/FIRESTONE NORTH AMERICA TIRE, LLC, successor to Bridgestone/Firestone, Inc., a foreign corporation, Respondent.
    No. 1D05-6143.
    District Court of Appeal of Florida, First District.
    July 31, 2006.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain <& Williams, West Palm Beach, for Petitioner.
    Lee P. Teichner, Rodolfo Sorondo, Jr., and llene L. Pabian of Holland & Knight, LLP, Miami, for Respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari because the petition has not shown that the trial court’s order denying the proposed settlement of the minor child’s claim in negligence is a departure from the essential requirements of law.

Petitioner, mother of the minor child, suffered catastrophic injuries in an automobile accident and was rendered a paraplegic. Petitioner filed suit against Respondent and, during negotiations, the parties jointly settled Petitioner’s claims. The trial court, however, denied the motion to approve settlement of the minor child’s claim pursuant to section 744.887(1), Florida Statutes, finding, inter alia, that the guardian ad litem appointed to protect the minor child’s interest had “presented no basis for this Court to approve the settlement recommended by him.” § 744.387(1), Fla. Stat. (2005).

The trial court’s analysis was grounded, at least in part, on its determination that the settlement was so inadequate that it was not in the minor child’s best interest under section 744.387(1), Florida Statutes; thus, Petitioner has not demonstrated an entitlement to extraordinary relief. Petitioner’s appendix does not contain sufficient information to demonstrate that the trial court’s failure to approve the proposed settlement was a departure from the essential requirements of law.

Petition DENIED.

BENTON, POLSTON and THOMAS, JJ., concur.

      . Cf. Bullard v. Sharp, 407 So.2d 1023, 1023-24 (Fla. 4th DCA 1981) (granting writ of certiorari where court’s refusal to approve minor’s settlement pursuant to section 744.387(1), Florida Statutes, was based on the excessive amounts provided to the minors). Unlike Bullard, the trial court also relied on a separate, sufficient ground authorized by the legislature when reviewing settlements to minor parties.


author: BROWNING, J.

text:
    Cynthia Marie WILLIAMS, Appellant, v. Alphonso WILLIAMS, Sr., Appellee.
    No. 1D05-2389.
    District Court of Appeal of Florida, First District.
    July 31, 2006.

      Glorimil R. Walker, of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    No appearance, for Appellee.
   BROWNING, J.

Cynthia Marie Williams, the former wife, appeals one part of the April 2005 final judgment that dissolved her 32-year marriage to the appellee, Alphonso Williams, Sr. Specifically, the former wife challenges the following ruling by the trial court in Paragraph “E” of the final judgment:

The Husband became eligible to receive retirement benefits July 1, 2003 and enrolled in the 60 month State Deferred Retirement Option Program (DROP). The Wife is not entitled to any of the Husband’s DROP benefits. The Husband’s DROP benefits are non-marital.

The parties were married on July 25, 1972. Competent, substantial evidence demonstrates that the former husband became eligible to receive retirement benefits on July 1, 2003, and enrolled in the 60-month DROP plan. We have de novo review of the trial court’s ultimate conclusion of law that the former husband’s DROP benefits are a non-marital asset and, therefore, are not subject to equitable distribution.

After the trial court issued the final judgment of dissolution of marriage in the case at bar, we issued Pullo v. Pullo, 926 So.2d 448, 451-52 (Fla. 1st DCA) (en banc), review dismissed, 933 So.2d 1154 (Fla.2006), which compels reversal of that part of the final judgment designating the former husband’s DROP benefits as a non-marital asset not subject to equitable distribution. See Nix v. Nix, 930 So.2d 711 (Fla. 1st DCA 2006); Russell v. Russell, 922 So.2d 1097, 1099 (Fla. 4th DCA 2006). Accordingly, we AFFIRM that portion of the final judgment dissolving the parties’ marriage, REVERSE the ruling in Paragraph “E” of the final judgment, and REMAND for further proceedings in accordance with Pullo and Nix.

WOLF and VAN NORTWICK, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    George GIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5967.
    District Court of Appeal of Florida, First District.
    July 31, 2006.

      Michael Ufferman, Appearing in conjunction with the Florida Innocence Project, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. On January 14, 1985, the appellant was convicted of sexual battery, robbery, and kidnaping. The appellant filed a rule 3.853 motion seeking DNA testing of biological material collected from the victim after the sexual assault. The appellant alleged that he is innocent, that identity was a material issue at trial, and that DNA testing of the evidence would exonerate him. The trial court found that the appellant’s motion was facially sufficient, but denied the motion on the merits, finding that there was no reasonable probability that the appellant would have been acquitted if the DNA evidence was admitted at trial.

The trial court erred when it denied the appellant’s facially sufficient motion on the merits without holding an evi-dentiary hearing or attaching portions of the record. See Schofield v. State, 861 So.2d 1244 (Fla. 2d DCA 2003); Reddick v. State, 929 So.2d 34 (Fla. 4th DCA 2006). The court also erred by ruling on the merits of the motion without eliciting a response from the state. If a trial court has initially determined that a motion for postconviction DNA testing is legally sufficient, Florida Rule of Criminal Procedure 3.853(c) requires a response from the prosecuting authority. The rule states:

(2) The court shall review the motion and deny it if it is insufficient. If the motion is sufficient, the prosecuting authority shall be ordered to respond to the motion within 30 days or such other time as may be ordered by the court.
(3) On receipt of the response of the prosecuting authoñty, the court shall review the response and enter an order on the merits of the motion or set the motion for hearing.

Fla. R.Crim. P. 3.853(c) (Emphasis added.)

A.court should deny a facially sufficient rule 3.853 motion on the merits only after the state has responded. See Cheshire v. State, 872 So.2d 427 (Fla. 5th DCA 2004); Manual v. State, 855 So.2d 97, 98 (Fla. 2d DCA 2003).

The denial of the appellant’s motion is reversed, with directions that the trial court direct the State Attorney to respond to the motion. Upon receiving the response, the trial court should consider whether it can decide the merits of the motion without an evidentiary hearing. If the trial court denies the motion without a hearing, it must attach portions of the record supporting its conclusion. Otherwise, the trial court must conduct an evi-dentiary hearing.

REVERSED AND REMANDED with instructions.

KAHN, C.J., and BARFIELD, J., concur; THOMAS, J., concurs with opinion.

THOMAS, J.,

concurring.

Based on the State’s concession that this case must be reversed and the requirements of section 925.11, Florida Statutes (2004), I concur with the majority opinion. I write only to note the context of the trial court’s ruling.

Appellant was transported from a South Florida prison to the hearing in Leon County Circuit Court. Unfortunately, Appellant’s attorneys below (not his appellate attorney) failed to appear for the eviden-tiary hearing set by the court. The trial court attempted to contact Appellant’s attorneys, to no avail. The trial court then asked Appellant whether he had communicated with his attorneys; Appellant said that he had not had any contact since September 2003. Only then did the trial court cancel the hearing on Appellant’s rule 3.853 motion and order Appellant’s attorneys to show cause why sanctions should not be imposed.

Appellant’s attorneys responded and attempted to explain their failure to appear; however, the trial court’s decision regarding sanctions is not contained in the record on appeal. Regardless, I believe it is important to note that the trial court attempted to afford Appellant the opportunity to present evidence, and then reviewed Appellant’s motion and found it insufficient.


text:
    Brandon Scott BOYD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1839.
    District Court of Appeal of Florida, First District.
    July 31, 2006.
    Michael S. Bossen of The Law Office of Michael S. Bossen, Jacksonville, for Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Pruitt v. State, 830 So.2d 895 (Fla. 2d DCA 2002).

BENTON, PADOVANO, and LEWIS, JJ., concur.