author: POLEN, J.

text:
    Fidel LEYVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1859.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.

      Carey Haughwout, Public Defender, and David Casals, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Fidel Leyva, appeals a final order of conviction and sentencing. Leyva was charged with one count of attempted sexual battery on a child under twelve by a perpetrator over 18 years of age, and one count of lewd and lascivious conduct. The incident leading to the two charges took place at Leyva’s girlfriend’s home, where Leyva also resided, and the victim was her eleven year old daughter. The victim was returning to her room after taking a shower, wrapped only in a towel. As she was going down the hall, Leyva tried to scare her by saying “Boo,” and wouldn’t let her pass. Leyva took her arm and pulled her to the bedroom he shared with the victim’s mother. Leyva put her on the bed so that she was lying on her back, with her leg hanging off of the bed. Leyva rubbed his hand up and down her leg, but did not touch her private parts. The victim screamed for her younger brother, and Leyva placed his other hand over her mouth to keep her quiet. At this point, Leyva was standing over the victim with one leg between her legs. The victim’s younger brother came into the room, Ley-va moved to the side, and the victim ran from the room.

After a jury trial, Leyva was found guilty on both counts and sentenced to twenty years for count one, and fifteen years for count two, sentences to run concurrently. Leyva puts forth four issues in this appeal, but we find merit in only one. Leyva argues that the charges of attempted sexual battery and lewd and lascivious conduct are mutually exclusive, that the two convictions violate his double jeopardy rights, and asks that one of his convictions be reversed. On the basis of the double jeopardy issue, we reverse in part and affirm in part.

Leyva relies on Welsh v. State in support of his argument that the charges are mutually exclusive. 850 So.2d 467 (Fla.2003). Welsh involved an earlier version of § 800.04, Fla. Stat., the controlling statute defining lewd and lascivious acts. The previous version specifically excluded sexual battery as a means of perpetrating a lewd and lascivious act. Id. at 470. The Florida Supreme Court found that “[t]hus, the ... provisions make clear that the offenses of sexual battery and lewd and lascivious act are mutually exclusive.” Id. However, section 800.04, Florida Statutes, was substantially amended in 1999, and does not contain any language pertaining to sexual battery. Although the Florida Supreme Court declined to rule on the effect of the amended statute, it stated: “ ‘[IJt is evident that the phrase ‘without committing the crime of sexual battery’ was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes.’ ” Id. at 470 (quoting State v. Hightower, 509 So.2d 1078, 1079 (Fla.1987)). After a close reading of the statute, we find that the two charges are not mutually exclusive. See also Darville v. State, 912 So.2d 63 (Fla. 4th DCA 2005) (upholding defendant’s convictions for sexual battery and lewd and lascivious molestation).

However, we find merit in Ley-va’s contention that the convictions for both crimes, under the facts of this case, violate his double jeopardy rights. “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). If there is no clear legislative statement regarding separate punishments, courts determine whether each offense has an element that the other does not. Gordon, 780 So.2d at 19-20. The elements for sexual battery and lewd and lascivious conduct are not the same, and so they can be considered separate offenses, leaving the question of whether the offenses constituted separate and discrete acts. See Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005)(multiple convictions for lewd and lascivious acts when incidents not discrete constituted double jeopardy violation); Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005)(eonviction for sexual battery and lewd and lascivious molestation that arose out of single act constituted double jeopardy violation); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003)(convictions for sexual battery and lewd and lascivious battery, based on same act, constituted double jeopardy violation).

We have previously upheld convictions for sexual battery and lewd and lascivious acts after determining they constitute separate and distinct acts. In Darville, the defendant appealed his three convictions for two counts of sexual battery and one count of lewd and lascivious molestation. 912 So.2d 63, 64 (Fla. 4th DCA 2005). The defendant had fondled the victim’s breasts, penetrated her with his finger, and fondled her vagina. Id. In upholding the convictions, this court quoted a previous decision, explaining: “In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.” Id. (quoting Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001)).

In this case, we find that the violations took place at the same time, and constitute a single act, rather than multiple acts within a single episode. See Eaddy, 789 So.2d at 1095 (“Although the victim testified the Defendant touched her breasts and vagina during the first trip, she did not testify as to how much time, if any, elapsed between the inappropriate touchings ... to deem the acts separate and distinct in this case ... would violate the Defendant’s right to be free from double jeopardy”). The incident in this case took place over the span of approximately five minutes, and there was no indication that Leyva “had time to pause, reflect, and form a new criminal intent between the occurrences.” Eaddy, 789 So.2d at 1095. The sole acts that Leyva could be found guilty for were his behavior in pushing the victim down on the bed and in rubbing her leg. We find that this constituted one incident. Therefore, we reverse Leyva’s conviction for lewd and lascivious conduct. We affirm Leyva’s conviction for attempted sexual battery.

SHAHOOD and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James L. TATE, Jr., Petitioner, v. STATE of Florida and James R. McDonough, Secretary, Florida Department of Corrections, Respondents.
    No. 1D06-0741.
    District Court of Appeal of Florida, First District.
    March 29, 2006.
    James L. Tate, Jr., petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, C.J., LEWIS and POLSTON, JJ., concur.


author: KLEIN, J.

text:
    TRANSPORTATION CASUALTY INSURANCE COMPANY, Appellant, v. ALL AMERICAN AIR FREIGHT, INC., a Florida corporation, Delta Freight, Inc., Yoel Oliver, and Lucio M. Perez-Reynozo, as Personal Representative of the Estate of Pascuala Sanchez-Domingo, Maria Esquivez, Ana Mejia-Maldonado, Magrino Ramos-Diaz, Jeffrey M. Friedman, as Personal Representative of the Estate of Jeremias Diaz-Mendez, John Doe, as Personal Representative of the Estate of Marta Lopez-Vasquez, Armando Diaz-Lopez, Katrina Mendez-Lopez, Appellees.
    No. 4D05-1416.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Rehearing Denied May 1, 2006.

      Farrah C. FugetL-Mullen of Wiederhold & Moses, P.A., West Palm Beach, for appellant.
    Michael D. Eriksen of Romano, Eriksen & Cronin, West Palm Beach, for appellee Lucio Perez-Reynozo.
    Joseph A. Vassallo and Joseph Bilotta of Vassallo & Bilotta, P.A., Palm Springs, for Appellee Estate of Jeremías Diaz-Mendez.
    Raul R. Lopez of Raul R. Lopez, P.A., Miami Lakes, for appellees All American and Yoel Oliver.
   KLEIN, J.

The appellant insurer appeals a summary judgment holding that it did not effectively cancel an insurance policy because it failed to give the notice to the state as required by a statute applicable to commercial vehicles. We affirm.

The insurer issued the policy in September, 2002, but after the insured failed to make premium payments, sent the insured a notice of cancellation in October, reflecting a cancellation date of November 15, 2002. On December 1, 2002, an insured vehicle was involved in an accident causing injury and death, and claims were filed against the driver and the insured. The insurer then filed this action seeking a declaration that its policy had been can-celled, effective November 15, 2002.

The trial court found that there was coverage because the insurer had failed to provide notice of cancellation as required by section 320.02(5)(e), Florida Statutes (2002), which provides:

The department shall suspend the registration, issued under this chapter or s. 207.004(1), of a motor carrier who operates a commercial motor vehicle or permits it to be operated in this state during the registration period without having in full force and effect liability insurance, a surety bond, or a valid self-insurance certificate that complies with the provisions of this section. The liability insurance policy or surety bond may not be canceled on less than 30 days’ written notice by the insurer to the department, such 30 days’ notice to commence from the date notice is received by the department.

It was undisputed that the insurer did not give the notice required by the statute, but the insurer argues that it was governed by section 627.7281, Florida Statutes (2002), which does not require notice to the state:

Cancellation notice. An insurer issuing a policy of motor vehicle insurance not covered under the cancellation provisions of s. 627.728 shall give the named insured notice of cancellation at least 45 days prior to the effective date of cancellation, except that, when cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation accompanied by the reason therefore shall be given.

The insurer argues that because it was cancelling the policy for nonpayment of premiums, it was required to only give the named insured notice under this statute.

The problem with the insurer’s position is that section 627.7281 is of general application to all motor vehicles, while section 320.02(5)(e) applies more specifically to commercial vehicles, which are subject to special registration requirements with the state. Because more specific statutes control over general statutes, Ortiz v. Dep’t of Health, 882 So.2d 402 (Fla. 4th DCA 2004), the statute applicable to commercial vehicles is applicable here on the issue of requiring notice to the state. We have considered the other arguments raised by the insurer and find them to be without merit.

Affirmed.

WARNER and HAZOURI, JJ., concur.


text:
    Ronald J. NORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-877.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Ronald J. Norman, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ulcena v. State, 925 So.2d 346, 2006 WL 229295 (Fla. 4th DCA Feb.1, 2006).

STONE, KLEIN and HAZOURI, JJ., concur.


author: ROTHSCHILD, RONALD J., Associate Judge.

text:
    James T. FALZONE, Barbara Falzone, Nicholas Falzone, Angelina Falzone, Donald J. Laine and Patricia G. Laine, Appellants, v. FLORIDA RESIDENTIAL PROPERTY AND CASUALTY JOINT UNDERWRITING ASSOCIATION, Appellee.
    Nos. 4D04-4936, 4D05-138.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Rehearing Denied May 4, 2006.

      Richard S. Tolbert, West Palm Beach, for appellants James T. Falzone, Barbara Falzone, Nicholas Falzone and Angelina Falzone.
    Cari A. Podesta of Cari A. Podesta, P.A., Palm Beach Gardens, and Duncan J. Farmer of Burger, Trailor & Farmer, P.A., West Palm Beach, for appellants Donald J. Laine and Patricia G. Laine.
    Maria Elena Abate and Brigette E. Adams of Colodny, Fass, Talenfeld, Karlin-sky & Abate, P.A., Fort Lauderdale, for appellee.
   ROTHSCHILD, RONALD J., Associate Judge.

Tenants James and Barbara Falzone (individually and on behalf of their children) sued owner/lessors Donald and Patricia Laine under a residential lease for a single family residence. The action was one for breach of lease based on allegations that the house had become uninhabitable because of mold. The Laines’ insurer under a homeowner’s insurance policy, the Florida Residential Property and Casualty Joint Underwriting Association (FLJUA), filed a declaratory judgment action seeking to establish an exclusion so that it would not have to defend or indemnify the Laines in the Falzone action. Following a non-jury trial, the trial court entered a final judgment in favor of FLJUA decreeing that FLJUA was not obligated to defend or indemnify the Laines with respect to the action filed against them by the Falzones.

Section I of the insurance policy sets forth property coverages for the dwelling on the “residential premises.” Section II of the policy, which is at issue in this appeal, sets forth liability coverages, including coverage for personal liability claims or suits “brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which the coverage applies.” Section II includes the following exclusion to personal liability coverage that is relevant to this appeal:

c. Arising out of the rental or holding for rental of any part of any premises by an “insured.” This exclusion does not apply to the rental or holding for rental of an “insured location”:
(1) On an occasional basis if used only as a residence;
(2) In part for use only as a residence, unless a single family unit is intended for use by the occupying family to lodge more than two roomers or boarders; or
(3) In part, as an office, school, studio or private garage.

The two issues raised by the Falzones and Laines relate to the interpretation of the exceptions to the rental exclusion contained in Sections II c.(l) and II c.(2) set forth above.

The following standards apply to the interpretation and construction of insurance policies. “[I]nsurance contracts must be construed in accordance with the plain language of the policy,” and this rule applies whether the provision at issue is “a basic policy provision or an exclusionary provision.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003); Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005) (citation omitted). The plain language of the policy controls “except ‘when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.’” Taurus, 913 So.2d at 532 (citing State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986)).

We are unpersuaded by the arguments made by the Falzones and Laines; we find that there are no ambiguities within the governing provisions of the insurance policy.

Our resolution of the meaning of the exception to the rental exclusion contained in Section II c.(l) is grounded upon the definition of “occasional basis.” In the case of Hess v. Liberty Mutual Insurance Co., 458 So.2d 71 (Fla. 3rd DCA 1984), the Third District considered an insurance policy provision including the term “occasionally rented” and concluded that the provision referred to rentals occurring “now and then,” such as vacation rentals. In the instant case, the trial court correctly concluded that the lease of the subject premises for a one-year period, virtually the entire time that the insureds, the Laines, had owned the premises, does not constitute an occasional rental of the insured premises.

As to the second exception to the exclusion raised, the trial court also correctly concluded that a full-time total rental of the premises does not fall within the exception as contained in Section II c.(2) of the homeowner’s policy. The residence in question was rented in its entirety and does not fall within the second exception to the exclusion."

As such, we find that the subject insurance policy, construed in accordance with the plain language of the policy as applied to the surrounding totality of the facts of this case, warrants the trial court’s conclusion that FLJUA was not obligated to defend or indemnify the Laines with respect to the action filed against them by the Falzones.

Affirmed.

POLEN and MAY, JJ., concur.


author: LAWSON, J.

text:
    Frederick LISTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2838.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      Frederick C. Lister, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Frederick Lister appeals the summary-denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to the first two grounds raised in Lister’s 3.850 motion, but are required to reverse as to the remaining ground because the trial court did not attach to its order one of the documents from the record relied upon in denying relief.

The trial court correctly denied two of Lister’s claims as facially invalid. First, Lister claimed that the trial court had erred in granting his pro se motion to withdraw pleas without holding an eviden-tiary hearing to test the veracity of his written allegations. Lister had been placed on probation for the charge of unlawful sexual activity with a minor when he was arrested for selling cocaine within 1000 feet of a school and possession of cocaine with intent to sell or deliver. On the day of his scheduled violation of probation hearing, Lister entered pleas in both cases, agreeing to four-year concurrent prison terms. Sentencing was deferred so that Lister could “visit with his family” before being sent to prison.

Prior to sentencing, however, Lister filed a pro se motion with the court claiming that his appointed counsel had coerced him into entering the pleas, and moved to withdraw them. The trial court granted Lister’s motion without a hearing. The first case was rescheduled for a violation of probation hearing. The second was set for trial. At the violation hearing, the court found a violation, revoked Lister’s previous term of probation and sentenced him to fifteen years in state prison. On appeal, the judgment and sentence were affirmed per curiam. Lister v. State, 861 So.2d 1171 (Fla. 5th DCA 2003) (table). Lister then pled guilty to the two cocaine charges, agreeing to a three-year prison term on each (concurrent with one another, but consecutive to the fifteen-year sentence previously imposed).

As the trial court correctly concluded, its decision to simply accept the allegations in Lister’s motion to withdraw plea, and grant the motion without hearing, was well within the court’s discretion. Lister cannot now complain when he was granted the relief he sought. E.g., Arsenault v. Thomas, 104 So.2d 120, 122 (Fla. 3d DCA 1958) (noting “where a litigant requests and receives a favorable ruling, he cannot later ... be heard to complain of the actions of the trial judge in acceding to his requests”).

Next, Lister argues that the lawyer appointed to represent him after withdrawal of his pleas was ineffective for “failing to insure” that Lister’s probation violation hearing was held after any trial or plea on his new law violations to “protect ... [him] from possible consecutive sentencing.” This claim was also properly denied as facially invalid. The trial court’s discretion to impose consecutive sentences was in no way dependant upon the order in which the cases were resolved. Additionally, a defendant has no right to insist that his cases be heard in any particular order. Rather, these are matters within the sound discretion of the trial court. See Fla. R. Jud. Admin. 2.085(b).

In his final ground for relief, Lister claimed that his original attorney was ineffective for failing to explain to him that he could receive up to fifteen years on the sex offense charge upon a finding that he violated his probation, or that he could receive additional time on the new offenses. Additionally, Lister claimed that counsel failed to explain to him the nature of a violation of probation hearing. According to Lister’s motion, if he had known these facts, he never would have filed the motion to withdraw his plea. With respect to the potential penalties for the new offenses, Lister’s motion itself defeats his claim. In his motion, Lister states under oath that his attorney explained to him prior to plea that he could receive up to forty-five years on the new charges alone if he took the case to trial and lost. The trial court found that the additional allegations were conclusively refuted by the record, and attached a transcript of the original plea proceeding.

At the plea proceeding, counsel did a thorough job of explaining on the record the matters he had reviewed with Lister, including the nature of a violation of probation proceeding. Under oath, Lister then confirmed that he had fully discussed his case with his lawyer and that all of the representations made by counsel to that effect were true. Therefore, the trial court correctly concluded that the transcript of the hearing itself fully refuted Lister’s claim of ineffective assistance of counsel, except as to one point.

With respect to the potential penalty on the violation of probation case, the court concluded that although the maximum penalty was not expressly discussed at the hearing, it was set forth on the plea form tendered during the hearing. With respect to the plea form, Lister testified at the hearing as follows:

COURT: You signed this Waiver of Rights and Agreement to Enter a Plea form.
DEFENDANT: Yes, I did.
COURT: You read it before you signed it.
DEFENDANT: Yes.
COURT: And Mr. Nackle went through it with you line by line and explained to you all of the rights that you waived when you signed it.
DEFENDANT: Yes.
COURT: Is there anything about this agreement that you do not fully and completely understand?
DEFENDANT: No, sir.

Given this testimony, we agree with the trial court that if the fifteen-year maximum penalty for the unlawful sexual activity with a minor charge is set forth on the plea form, this would conclusively refute the remainder of Lister’s claim. However, the plea form was not attached to the trial court’s order, and is not otherwise part of the record on appeal. “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” McLin v. State, 827 So.2d 948, 954 (Fla.2002) (quoting Foster v. Moore, 810 So.2d 910, 914 (Fla.2002)). For this reason, we must reverse as to this narrow issue. See, e.g., Robinson v. State, 909 So.2d 497, 498 (Fla. 5th DCA 2005) (noting “where the trial court fails to attach portions of the record which refute the defendant’s claims, the appellate court must accept the defendant’s factual allegations to the extent they are not refuted by the record filed on appeal”). On remand, the trial court may simply file an amended order that includes the additional attachment(s). Otherwise, the court is required to hold an evidentiary hearing on the narrow issue of whether Lister’s counsel explained to him that he faced up to fifteen years of incarceration on the violation of probation case.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

THOMPSON and SAWAYA, JJ., concur.


author: SHARP, W„ J.

text:
    Glenn Lamar HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1679.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      Gregory W. Eisenmenger and Robert R. Berry, of Eisenmenger & Berry & Peters, Viera, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W„ J.

Houston appeals from his judgment and sentences for trafficking in cocaine (200-400 grams) and resisting an officer without violence. The trial court denied his motions to suppress evidence seized at the time of his arrest and evidence seized in Houston’s home and storage unit. He entered no contest pleas to the charges and reserved his right to appeal. We have jurisdiction and affirm.

The record establishes that Houston was arrested at an Exxon gas station/convenience store in Melbourne, by Dotson, a DEA Task Force agent with the Brevard County Sheriffs Office. Dotson and other agents were dressed in plain clothes and driving unmarked vehicles. They were parked at the gas station, awaiting instructions in an unrelated drug case.

Dotson noticed a vehicle driven by co-defendant Clark pull into the parking lot. Clark parked away from the store and remained inside his vehicle. Dotson was suspicious. If another person came to meet Clark, Dotson planned to go and talk to them because he thought they might be engaging in a drug transaction.

Fifteen minutes later, Houston drove his truck into the parking lot and parked next to Clark’s vehicle. Houston’s 14-year-old daughter, Jolena, went inside the store. Clark then left his vehicle and got into the passenger side of the truck.

Dotson moved his car behind the truck and stopped, effectively preventing Houston from leaving the parking lot. Dotson walked up to the driver’s side of Houston’s truck. He looked inside, through the window, and saw Houston with white powder in a folded ten-dollar bill in one hand and in a plastic bag in the other. Based on his training and experience, he believed the white powder was cocaine. He testified that neither Houston nor Clark noticed him before he saw Houston in possession of the white powder.

Dotson knocked on the window, identified himself as a deputy, and asked Houston to open the door. Houston refused to do so and put the truck into reverse. Another agent smashed the passenger window. Houston stopped the truck and opened the door.

Houston and Clark were arrested. Agents found plastic bags in Houston’s shirt containing what appeared to be cocaine and a briefcase that contained what appeared to be cannabis. The white powder Dotson had observed field tested positive for cocaine.

The agents talked with Jolena and questioned her about her father’s activities. She told them that Houston did not work, and that he drove around a lot at night to various homes. He went to a storage unit before going to the homes. He had just been to the storage unit before coming to the gas station that day. She guided the police to the storage unit.

A person leasing space at the storage facility identified Houston as the occupant of a unit. A K-9 dog alerted on the unit. A local records check showed that Houston had been arrested seven times on thirty-two charges.

Based on this information, Dotson applied for and obtained warrants to search Houston’s home' and storage unit. He identified Jolena as a “confidential source” and not by name. Cocaine, cannabis and drug paraphernalia were found in both locations.

The trial court concluded that the motions to suppress should be denied because Dotson had not seized Houston by making a show of authority before he obtained probable cause to arrest him. Blocking Houston’s truck with his unmarked car and approaching the driver’s window did not constitute a Fourth Amendment seizure. He also concluded that no seizure occurred because Houston and Clark were unaware that Dotson had parked his car behind the truck and that he and another agent were approaching the truck.

In suppression cases, the standard of review to be applied to the factual findings of the trial court is whether competent, substantial evidence supports those findings. All evidence and reasonable inferences therefrom must be construed in a manner most favorable to upholding the trial court’s decision. However, the trial court’s application of the law to the facts is reviewed de novo. Fitzpatrick v. State, 900 So.2d 495 (Fla.2005); Thomas v. State, 894 So.2d 126 (Fla.2004), cert, denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 L.Ed.2d 779 (2005); Connor v. State, 803 So.2d 598 (Fla.2001), cert, denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005).

Here, there was a conflict in the evidence as to when Houston became aware of the presence of law enforcement officers. According to Houston, he was surrounded by officers almost as soon as Clark got in his truck and before the officers had an opportunity to observe any cocaine. According to Dotson, neither Houston nor Clark was aware of his presence until he saw the cocaine and knocked on their window.

The trial court resolved this conflict in the evidence in favor of the state. Dotson’s testimony is sufficient to support this determination. See Holden v. State, 877 So.2d 800 (Fla. 5th DCA 2004) (trial court’s determination that officers’ testimony was more credible than defendant’s testimony was supported by the evidence).

The question we must then address is whether Houston was “seized” for purposes of the Fourth Amendment before Dotson had probable cause. A seizure arises only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Terry v. Ohio, 392 U.S. 1,19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether a defendant’s liberty has been restrained is a function of whether a reasonable person, under those circumstances, would have believed he was not free to leave the officer’s presence. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

A seizure does not occur when an officer merely approaches an individual in a public place or a driver seated in an already parked vehicle. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); State v. Jestice, 177 Vt. 513, 861 A.2d 1060 (2004) However, “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled” may be enough to constitute a seizure. Menden-hall, 446 U.S. at 554,100 S.Ct. 1870.

Applying these principles, we concluded that the officer’s actions in Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002), constituted an “investigatory stop” of the defendant rather than a consensual encounter. In that case, the arresting officer, while on routine patrol, saw Young’s vehicle pull into the driveway of a government apartment complex that was under construction. Knowing that the apartment was under construction and that nobody should be there, the officer turned his patrol car around and pulled behind Young’s vehicle — thereby blocking the driveway’s exit — and activated his emergency lights.

As the officer positioned his patrol car, Young went to the front of his vehicle and raised the hood. The officer approached and asked Young if he was having car problems. Young responded that he was “checking the gas cap.” Upon further inquiry, Young repeated that he was checking the gas cap. Because of the absurd answer, the officer asked Young for his identification. A check revealed that Young’s driving privileges were currently suspended. Young was arrested and a subsequent search revealed a bag containing cocaine next to the radiator cap.

Young was charged with possession of cocaine and felony driving while his license was suspended. He filed a motion to suppress, arguing that the cocaine should be suppressed because it was obtained during an illegal detention. The trial court denied Young’s motion.

On appeal, Young argued the officer’s use of his patrol car in a blocking manner and subsequent activation of the patrol car’s emergency lights resulted in a show of authority that would cause any reasonable person to believe he or she was not free to leave. We agreed, explaining as follows:

Florida courts consistently agree that an officer’s use of his or her emergency lights evidences an investigatory stop rather than a consensual encounter. See, e.g., Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999). The reason such encounters are investigatory stops rather than consensual encounters is the use of the emergency lights leads the citizen to believe that he or she is no longer free to leave. Id. Moreover, for the same reason, positioning a patrol car to obstruct the path of the vehicle once it is stopped elevates the encounter into an investigatory stop. See Griffin v. State, 800 So.2d 345 (Fla. 4th DCA 2001); Cowart v. State, 635 So.2d 1063 (Fla. 2d DCA 1994); see also Palmer v. State, 625 So.2d 1303 (Fla. 1st DCA 1993).

803 So.2d at 882.

We also found Hrezo to be factually similar to Young. In Hrezo, a deputy sheriff parked his patrol car behind the defendant’s vehicle, which was parked in a public park away from the main parking area where there were no other people or vehicles. Before the deputy exited his patrol car, he activated its emergency and takedown lights.

When the deputy approached the vehicle, he requested the defendant’s identification. At the same time, the deputy shined his flashlight on the interior of the defendant’s vehicle and saw a glass narcotics pipe. The deputy ordered-the defendant out of the vehicle, handcuffed him, and arrested him for possession of drug paraphernalia. A subsequent search of the defendant and his vehicle produced cocaine and additional paraphernalia.

The defendant filed a motion to suppress thé evidence. That motion was denied and the defendant appealed. The second district court held the deputy had initiated a stop of the defendant without reasonable suspicion of criminal activity and so the defendant’s motion to suppress should have been granted.

- The court concluded that when a police officer turns on his emergency and take-down lights under these circumstances, a reasonable person would expect to be stopped, at a minimum, for a traffic infraction and perhaps for the crime of fleeing and eluding if he drove away. Accordingly, the use of such lights is typically regarded as an act that initiates an investigatory stop.

Unlike the officers in Young and Hrezo, the officers here did not use their emergency lights or sirens as a show of authority. Dotson parked his unmarked vehicle at an angle about five to six feet behind Houston’s truck, an action could have been taken by any customer at the convenience store. The officers’ actions in pulling behind Houston and walking up to Houston’s truck were so unobtrusive that neither he nor Clark was even aware of the officers:

Moreovér, the officers were in plain clothes and not in uniforms. Even after he noticed the men, Clark did not realize they were law enforcement officers. The officers did not give any commands or display their weapons.

Up until this point, no reasonable person would have believed he had been “seized.” See United, States v. Sinden, 2006 WL 278287 (W.D.Mo. Feb. 02, 2006) (rejecting defendant’s argument that he was seized for Fourth Amendment purposes when officer parked in front of his vehicle blocking his movement); United States v. Barry, 394 F.3d 1070 (8th Cir.2005) (police officer’s conduct in approaching defendant’s parked vehicle in vacant parking lot behind a mall, parking his patrol car in front of the defendant’s vehicle with no emergency lights activated and knocking on the window of defendant’s vehicle did not amount to a show of authority such that a reasonable person would believe he was seized); United States v. Lovelace, 357 F.Supp.2d 39 (D.D.C.2004) (officers’ act of pulling into parking lot and placing their cruiser “nose to nose” about five feet in front of the defendant’s parked vehicle was not a sufficient “show of authority” that would necessarily cause a reasonable person to believe he was not free to leave the scene by other means; stopping in front of the defendant’s vehicle cannot reasonably be construed as the type of physical or verbal intimidation necessary under the Supreme Court’s Mendenhall analysis).

The officers did not make their presence known and ask Houston to open his door until after Dotson saw white powder in Houston’s possession. Houston had white powder in a folded ten-dollar bill in one hand and in a plastic baggie in his other hand. Based on his training and experience, Dotson reasonably believed this powder to be cocaine and thus had probable cause for an arrest or seizure. See State v. James, 693 So.2d 1086 (Fla. 2d DCA 1997) (probable cause to arrest defendant for possession of cocaine was provided by officer’s observation of white powdery substance in plastic bag in defendant’s mouth); State v. Billingsly, 542 So.2d 444 (Fla. 5th DCA 1989) (observation of mirror or .glass, white powdery substance, and razor blade inside vehicle gave, deputy sheriff probable cause to arrest for possession of cocaine).

After Dotson spotted the cocaine, he knocked on the truck’s window and asked Houston to open the door. Houston did not comply and instead put the truck in reverse. Another officer smashed the passenger window. This apparently startled Houston and caused him to stop the truck. It was only at this point that Houston submitted to the authority of the officers and was thus “seized” for purposes of the Fourth Amendment. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (seizure does not occur until the suspect is actually physically subdued by an officer or submits to the officer’s show of authority; “[a]n arrest requires either physical force ... or where that is absent, submission to the assertion of authority”).

Since Houston was not seized until after probable cause was established, the trial court properly denied his motion to suppress. See State v. Bartee, 623 So.2d 458 (Fla.1993) (chase by police officer and order for defendant to stop did not constitute a seizure, therefore cocaine abandoned during defendant’s flight was not fruit of the poisonous tree and should not have been suppressed); Perez v. State, 620 So.2d 1256 (Fla.1993) (police officer’s order to defendant to “freeze” or to stop and the subsequent chase by officer did not constitute a “seizure” until defendant was caught; therefore, recovery of firearm thrown away by the defendant during the chase was not the result of an illegal seizure and should not have been suppressed).

Our conclusion that probable cause existed before Houston was seized defeats his argument that the actions of the officers at the Exxon station “tainted” the search warrants. Further, Houston argues the warrants were improperly obtained, because Dotson failed to allege the dog that alerted on his storage unit had been certified, lacks merit. There is no requirement that a dog be certified to detect narcotics. Characterizing a dog as properly trained, as was done in this case, is a sufficient predicate upon which to issue the warrant. Vetter v. State, 395 So.2d 1199 (Fla. 3d DCA 1981); United States v. Berry, 90 F.3d 148 (6th Cir.), cert, denied, 519 U.S. 999, 117 S.Ct. 497, 136 L.Ed.2d 389 (1996).

Houston’s argument that his daughter was falsely described as a confidential informant is also inaccurate. Dotson referred to her in his affidavit as a confidential source. He testified he did this in order to protect her identity. This was not a false representation.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . § 893.135(l)(b); § 843.02, Fla. Stat.

      . Fla. R.App. P. 9.140(b)(2)(A)(i); Brown v. State, 376 So.2d 382 (Fla. 1979); Hedglin v. State, 892 So.2d 1183 (Fla. 5th DCA 2005).

      . A "stop” is a shorthand way of referring to a seizure that is more limited in scope and duration than an arrest. State v. Jestice, 861 A.2d at 1062.


author: SHARP, W., J.

text:
    Jean H. BOUDOT, Appellant, v. James R. BOUDOT, Appellee.
    No. 5D05-1669.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      Joan H. Biekerstaff of Law Office of Joan H. Biekerstaff, P.A., Melbourne, for Appellant.
    Pamela Huddleston of Huddleston & Pa-lumbo Robbins & Riddle, P.A., Melbourne, for Appellee.
   SHARP, W., J.

The former wife, Jean Boudot, appeals the trial court’s denial of her motion for attorney’s fees and costs in this dissolution proceeding. The wife’s motion was denied because she failed to comply with the 30-day time limit file for filing that motion, as was then required by Florida Rule of Civil Procedure 1.525, and her request to enlarge the time within which to file was denied. We conclude the trial court abused its discretion in denying the wife’s request to enlarge the time for filing her motion and accordingly reverse.

The record reflects that in August 2001, the wife filed for dissolution of her 20-year marriage to the former husband, James Boudot. In her petition for dissolution, the wife sought attorney’s fees and costs, among other things. The parties ultimately entered into a settlement agreement resolving their financial matters.

At the final hearing in March 2004, the parties informed the judge they had settled all matters except attorney’s fees. As to the issue of attorney’s fees, the judge stated:

THE COURT: The parties will leave the issue of contribution to Ms. Boudot’s attorney’s fees for determination by the Court.
The Court will reserve ruling on that, specifically reserve jurisdiction for that purpose.
I will take a look at the affidavits proposed or proffered by counsel, and if I conclude that I need additional argument to understand the reasonableness of a contribution to attorney’s fees I will ask counsel to return for an argument on that alone.
Does that constitute the agreement as you understand it, Ms. Abraham [wife’s counsel]?
MS. ABRAHAM: Yes, it does, Your Honor.
THE COURT: Ms. Huddleston [husband’s counsel]?
MS. HUDDLESTON: Yes, sir. (emphasis added)

Later the judge directed the wife’s counsel to “prepare a final judgment on the stipulation of the parties specifically reserving as to the issue of attorney’s fees and I will issue the judgment on that in due course.” (emphasis added)

At the conclusion of the hearing, the judge dissolved the parties’ marriage and incorporated their settlement agreement “reserving only as to the issue of attorneys’ fees in terms of the immediate issues and obviously reserve jurisdiction over the subject matter of the parties subject to modification matters which may properly be brought before the Court in the future.” The wife’s counsel noted that opposing counsel already had an affidavit on attorney’s fees and the affidavit was received into evidence.

In May 2004, the court entered the final judgment of dissolution. The judgment provided for attorney’s fees as follows:

4. RESERVATION OF JURISDICTION OVER ATTORNEY FEES & COSTS:
Although the Court dissolves the bonds of marriage and accepts the parties’ Stipulation and incorporates by reference the MEDIATED SETTLEMENT AGREEMENT entered April 1, 2002, on March 15, 2004, at the Non-Jury Trial, the Court reserved jurisdiction over PETITIONER’S requests for attorney fees and costs from the following MOTIONS in this proceeding.
A.GRANTED: February 13, 2002 Wife’s EX PARTE AFFIDAVIT & EXPARTE ORDER FREEZING INTANGIBLE MARITAL ASSETS:
Motion for Contempt referencing attorney fees (regarding EXPARTE AFFIDAVIT AND EXPARTE ORDER FREEZING INTANGIBLE MARITAL ASSETS entered February 13, 2002) filed February 14, 2002 with a Notice of Hearing to be heard at the Non-Jury Trial in this cause. This Motion was addressed at the March 15, 2004 Non-Jury Trial.
B. GRANTED: December 1, 2003
Wife’s Motion to Declare November 3, 2001 Agreement Abandoned and in the alternative, Motion to Set Aside Agreement, Motion to Reopen and Allow Additional Testimony heard by this Court on July 19, 2002, Viera, Brevard County, Florida;
C. GRANTED: March 15, 2004
Wife’s Motion for Rehearing and Motion to Modify Temporary Relief heard simultaneously with the Non-Jury Trial in this cause;
Based upon review of the Court file and the Attorney Fee affidavit filed by Counsel for WIFE at the Non-Jury Trial on March 15, 2004, the Court makes the following findings of facts with regard to the WIFE’S claim for attorney fees and costs as a result of this proceeding:
Jurisdiction is reserved for consideration of attorneys fees for the foregoing concurrent with consideration for attorneys fees for the entire case as reserved in paragraph 12, below.
12. CONTINUING JURISDICTION:
This Court specifically reserves jurisdiction over the parties hereto and the entire subject matter to enter any further orders concerning enforcement or modification or otherwise that may be equitable, appropriate and just. The Court retains continuing jurisdiction to enter an ORDER incorporated herein on PETITIONER, WIFE’S request to [sic] for attorney fees and costs.

In December 2004, the wife notified the husband that a hearing on attorney’s fees would be held on February 17, 2005. On the day before the scheduled hearing, the husband moved to dismiss the wife’s motion for failure to comply with Florida Rule of Civil Procedure 1.525. This rule provides that the motion for attorney’s fees and costs must be filed within 30 days of the judgment.

The wife filed a response and motion to enlarge time pursuant to rule 1.090(b) based on excusable neglect. In support, the wife stated:

A. The undersigned COUNSEL and staff inadvertently failed to properly calendar 30 days after the entry of the FINAL JUDGMENT the due date in which to file WIFE’S MOTION FOR ATTORNEY FEES AND COSTS in this proceeding. This was an operational error within this office.
B. This mistake and error was caused by inadvertence, mistake and carelessness based upon the factual situation herein.
C. Notice had already been provided to Opposing Counsel for WIFE’S Counsel’s Affidavit of Fees, Docket # 84, and Docket # 129, for fees and costs through March 14, 2004.
D. COUNSEL FOR WIFE filed a Supplemental Attorney Fee Affidavit on February 14, 2005 to include the actual Non-Jury Trial date of March 15, 2004, subsequent QDRO, FJ, and IDO matters following thereafter.
E. “NOTICE,” the underlying substance of Rule 1.525, has been met resulting in no prejudice to HUSBAND.

At the February 17th hearing, the wife’s counsel explained she was claiming excusable neglect based on the following:

I am asserting as excusable neglect the fact that when we received the final judgment, which was finally entered on May 11, 2004, my office did not calendar the thirty day timeframe in which to file the motion for attorney’s fees. That was not calendared. The Court’s prior statement was that the Court was going to make a ruling and contact the attorneys if a hearing was needed, and when the Court entered the final judgment our office made an oversight on that date. It was not calendared and that this Court should find that there was excusable neglect based on my motion that I have filed yesterday under 1.090b(2).

Later in the hearing, the court asked the wife’s counsel:

THE COURT: And are you saying the act of excusable neglect was your office’s failure to calendar the thirty day period once the final judgment was entered.
MS. ABRAHAM: Correct. And in conjunction with the Court’s announcement that the Court would enter a judgment based on the affidavits filed at the trial level without the need for another hearing but if the Court felt a hearing was needed then the Court would contact counsel.
My office prepared the final judgment with six different lines for the Court to complete findings of facts. Six different blank lines for the Court to also enter its order and then we communicated with the Court in writing in October of— October requesting — October 7, 2004 by way of letter, requesting a ruling on the wife’s attorney’s fees, as to the status. It was not until December the 20th, 2004 that my office became knowledgeable that a hearing was going to be required.
Again, I’m relying on the Court’s announcement in Court March 15, 2004, that the Court intended to make its ruling without any further hearing based on the affidavits proffered by counsel, myself, at that time. And, therefore, my office did not calendar the thirty days and that is in my opinion excusable neglect when I’m relying on the thoughts—
THE COURT: It’s all the Court’s fault.
MS. ABRAHAM: I’m not blaming the Court.
THE COURT: It’s all the Court’s fault.
MS. ABRAHAM: I’m stating that my office did not calendar the thirty days and that I believe that we are right in line with excusable neglect in this case based on all the facts and circumstances and that 1.090b does allow an extension of time after the time period has run.

The court took the matter under advisement. It was not until February 23, 2005 that the wife actually filed her motion for attorney’s fees and costs.

In April 2005, the court entered an order denying the wife’s request for an enlargement of time and her motion for attorney’s fees and costs. The court concluded that inadvertence on the part of the wife’s counsel in failing to calendar the need to file the motion for attorney’s fees and costs within 30 days after the final judgment was “fatal” to her request for those fees.

Prior to January 1, 2001, the courts generally held that a party could file and serve a motion for attorney’s fees and costs within a “reasonable” time after the date the final judgment was entered. Carter v. Lake County, 840 So.2d 1153 (Fla. 5th DCA 2003). Effective January 1, 2001, rule 1.525 was added to the rules of civil procedure:

Rule 1.525. Motions for Costs and Attorneys’ Fees
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

The purpose of rule 1.525 was to eliminate the reasonable time rule and establish a “bright line” time requirement to serve motions for costs and attorney’s fees. Nicoletti v. Nicoletti, 902 So.2d 215 (Fla. 2d DCA 2005); Gosselin v. Gosselin, 869 So.2d 667 (Fla. 4th DCA 2004); Carter. Rule 1.525 applied to dissolution proceedings by virtue of Florida Family Law Rule 12.020. This rule makes the rules of civil procedure applicable in family law matters except where the family law rules conflict. Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003); Gosselin.

However, application of this “bright line” rule to dissolution proceedings was short-lived. Effective March 3, 2005, the Florida Supreme Court adopted a new rule, Family Law Rule of Procedure 12.525, which expressly provides that rule 1.525 does not apply to dissolution actions. Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla.2005).

The court noted the Family Law Rules Committee had proposed the new rule because rule 1.525 was “ill-fitted” to family law matters. This ill fit was causing the trial and appellate courts to apply or interpret the rule inconsistently in family law proceedings:

We agree that rule 1.525 should not apply in family law proceedings. The method of taxation of attorneys’ fees and costs in family law cases is quite different from that in civil litigation. Whereas the former is based on need and ability of the parties to pay, the latter is based on prevailing party considerations. Moreover, section 61.16, Florida Statutes (2004), already governs the award of attorneys’ fees and costs in family law cases. See also Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997) (noting that “[a]ny determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage support, or child custody begins with section 61.16, Florida Statutes”). Because the application of rule 1.525 in family law cases could be creating confusion among the courts, and because there already is a well-established body of statutory and case law authority regarding the award of attorneys’ fees and costs in family law matters, we agree with the committee’s proposal.

897 So.2d at 467-468.

In Smith v. Smith, 902 So.2d 859 (Fla. 1st DCA 2005), the first district held that the new family rule 12.525 was remedial in nature and was applicable to pending cases, including those on appeal. However, this court has held the rule does not apply retroactively. Reddell v. Red-dell, 900 So.2d 670, 672 n. 1 (Fla. 5th DCA 2005). Since the final judgment here was entered well before the effective date of the new family rule, the civil rule applies to the wife’s motion and she cannot take advantage of the new family rule.

Nor can the wife take advantage of the reservation of jurisdiction over the attorney’s fees issue in the final judgment. Other districts have held that such a reservation of jurisdiction extends the 30-day time limit for filing the motion for fees. See Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004), rev. granted, 903 So.2d 190 (Fla.2005); Fisher v. John Carter & Associates, Inc., 864 So.2d 493 (Fla. 4th DCA 2004).

However, this court has held that a reservation of jurisdiction in a final judgment does not entitle a party to an automatic extension of the thirty-day time limit to file a motion for fees. Wentworth. Nevertheless, this court went on to note that rule 1.090(b) could be used to enlarge the thirty-day time requirement upon a showing of excusable neglect:

Rule 1.090. Time
(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for ' relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

As we have previously observed, there is no precise definition of “excusable neglect” in the Florida rules or the case law. Thus excusable neglect remains a general concept to be applied on a case-by-case basis. Carter

In Carter, we concluded the same standard should be used to determine excusable neglect under rule 1.090(b) as is used to determine excusable neglect under rule 1.540. We then looked to cases under the comparable federal rules for guidance and cited Pioneer Investment Services Co. v. Brunswick, Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), as a leading federal case on the application of the excusable neglect standard.

In Pioneer Investment Services, the Supreme Court held that excusable neglect contemplates that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control. The determination of whether the failure to abide by a specified time limit constitutes excusable neglect is in essence an equitable one which should take into account all of the relevant circumstances, including prejudice to the other party, the reason for the delay, the duration of the delay, and whether the movant acted in good faith.

We also noted that the courts generally do not find excusable neglect based on the attorney’s misunderstanding or ignorance of the law or rules of procedure. On the other hand, the courts are much more inclined to find excusable neglect when the error occurs due to a breakdown in the mechanical or operational practices of the attorney’s office equipment or staff. 840 So.2d at 1158 n. 6.

If the wife’s counsel in the present case simply did not know she was required to file a motion for fees within 30 days, then perhaps her “ignorance of the law” or rules of procedure would not constitute excusable neglect. But here, counsel seems to have been lulled into believing the issue of fees had already been determined in the wife’s favor and only the amount remained to be determined.

While counsel may have been mistaken, her belief seems reasonable. The husband apparently had superior financial ability to pay the wife’s attorney’s fees and so an award of fees to the wife seemed probable. The judge’s comments at the March 2004 hearing — “The parties will leave the issue of contribution to Ms. Boudot’s attorney’s fees for determination by the Court.... ” “I will take a look at the affidavits proposed or proffered by counsel, and if I conclude that I need additional argument to understand the reasonableness of a contribution to attorney’s fees I will ask counsel to return for an argument on that alone.... ” “Prepare a final judgment on the stipulation of the parties specifically reserving as to the issue of attorney’s fees and I will issue the judgment on that in due course.... ” — suggested the judge would award fees to the wife based on her affidavits unless he decided a hearing was necessary.

Given the judge’s comments, the wife’s counsel could have reasonably believed that filing a motion for fees was unnecessary. In fact, the wife’s counsel drafted the final judgment with blank lines for the judge to enter findings of fact on the wife’s claim for attorney’s fees.

The husband cannot claim he has suffered any prejudice since he was clearly on notice the wife was seeking fees, based on her dissolution petition and the affidavits for fees her counsel had submitted, and the parties had agreed to leave the issue of fees to the judge to determine. And, if the late filing itself resulted in any additional fees, the court could simply not award those fees.

Other relevant circumstances militate in favor of granting the wife relief. This case involves the dissolution of a long-term marriage in which fees were based on need and ability to pay. The wife established at least a prima facie basis for fees based on the disparity of the parties’ earnings. Finally, the Florida Supreme Court has recognized the strict 30-day time limit was “ill-suited” to dissolution actions and wife’s claim would not be barred had the final judgment been entered today.

Although the abuse of discretion standard is one of the most difficult for an appellant to satisfy, we conclude the wife met that standard in this case. The trial court’s denial of relief to the wife was arbitrary and unreasonable, particularly considering the court may have caused counsel to believe that filing a motion for fees was unnecessary. See Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980) (trial court abused its discretion in denying motion for relief from judgment based on excusable neglect where counsel’s failure to take timely appeal was the result of the trial court’s failure to mail copies of judgment to parties). Accordingly, we reverse the order which denied the wife’s request for an enlargement of time and denied her motion for attorney’s fees and costs and remand this cause for further proceedings.

REVERSED and REMANDED.

TORPY and LAWSON, JJ, concur.

      . The underlined portion was handwritten.

      . Our standard of review is abuse of discretion. Smith, 902 So.2d at 861.


author: PALMER, J.

text:
    Dorothy C. CHASE, Sandra Horn and Leonard Carver, Appellant, v. Robert A. MULLEN and Marion J. Mullen, Appellee.
    No. 5D05-1469.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.
    Kevin R. Monahan, Palatka, for Appellant.

      Craig Z. Sherar of Craig Z. Sherar, P.A., Coconut Grove, for Appellee.
   PALMER, J.

Dorothy Chase and Sandra Horn, residents of Interlachen Lakes Estates, appeal the final judgment of the trial court holding unenforceable, as ambiguous and contradictory, a restrictive covenant purporting to restrict their use of real property and denying their claim to enforce the covenant through the issuance of injunc-tive relief. Concluding that the covenant is enforceable, we reverse the final judgment in that regard. Concluding that the terms of the restrictive covenant do not allow access to the property by the general public, we affirm the portion of the final judgment finding in favor of the property owners on their counterclaims for trespass and ejectment.

In 1974, Interlachen Lakes Estates deeded the subject property to the Town of Interlachen to be used solely for recreational purposes. The Town of Interla-chen held title to the subject property for several years but, upon deciding that it no longer wanted to maintain the property, the town eventually executed a quitclaim deed returning ownership of the property to Interlachen Lakes Estates.

After receiving ownership of the property, Interlachen Lakes Estates recorded a special warranty deed which conveyed the property to itself subject to the following restriction, which is the restrictive covenant giving rise to the instant litigation:

The Real Property may be used for open space, outdoor recreation and park purposes and no other purposes whatsoever. Title to the Real Property is subject to any and all private or public rights of use or access as may have arisen as a result of designations on the recorded plat or other representations that the Real Property is a park site.

Thereafter, Interlachen Lakes Estates executed a quit claim deed transferring ownership of the property to Lake Property Investment Group. In turn, Lake Property Investment Group executed a quitclaim deed conveying ownership of the property to Robert and Marion Mullen. Upon taking ownership of the property, the Mullens posted trespass warning signs and erected posts and barriers to keep the public off of the property.

Chase and Horn, homeowners in Inter-lachen Lakes Estates, filed suit against the Mullens seeking an injunction to enforce the restrictive covenant set forth in their warranty deed. The Mullens answered the complaint and filed a counterclaim for trespass and ejectment. The case proceeded to a non-jury trial. Upon-review of the evidence, the trial court found the language of the restrictive covenant to be “ambiguous, contradictory and inapposite,” and further held that since restrictive covenants are to be strictly construed in favor of the free and unrestricted use of real property, the Mullens have the right to use their property for whatever purpose they see fit. Chase and Horn appeal this ruling.

Specifically, Chase and Horn argue that the trial court incorrectly found the language of the restrictive covenant to be ambiguous and that the trial court’s interpretation fails to give the restrictive covenant its plain and ordinary meaning. We agree.

The first sentence of the restrictive clause clearly articulates that the property is to be used only for open space, outdoor recreation, and park purposes. The second sentence of the restrictive clause has no application in this case since all parties agree there were no “private or public rights arising as a result of designations on the recorded plat or other representation that the real property is a park site.” Therefore, only the first sentence of the restrictive clause is of any force or effect. The first sentence, standing alone, is neither ambiguous nor contradictory. As such, the covenant is enforceable.

Accordingly, the final judgment of the trial court which provided that the Mullens could use their real property for any purpose is reversed. We note, however, that the restrictive covenant does not require the property to be open to the public or used for public purposes. Rather, it limits the property to three possible uses by its owner: open space, outdoor recreation, and park purposes. Thus, so long as the Mullens do not use the property for any purposes other than the three designated purposes, no violation of the restrictive covenant occurs.

AFFIRMED in part, REVERSED in part.

PLEUS, C.J., and SAWAYA, J., concurs.


author: THOMPSON, J.

text:
    Rico Emmanuel SLOSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-488.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      James S. Purdy, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Rico Emmanuel Sloss appeals the finding that he is a sexually violent predator under the “Jimmy Ryce Act” (“Ryce Act”), arguing the court erred by refusing to grant his motion for directed verdict and denying his requested jury instructions. We affirm.

In April 2003, the State petitioned to have Sloss committed as a violent sexual predator under the Ryce Act. Sloss had been convicted of sexually violent offenses, and the multidisciplinary team of psychologists evaluating Sloss unanimously recommended involuntary commitment. In January 2005, a unanimous jury found Sloss to be a sexually violent predator.

Sloss used force and threatened to kill the victim in each of the underlying sexual offenses. In the first case, Sloss was arrested for sexual battery in June 1996 and pled no contest to attempted sexual battery. In the second case, while he awaited disposition for the first, Sloss was arrested for sexual battery upon a 15-year-old victim in February 1997, and pled no contest to lewd and lascivious assault upon a child. He was adjudicated guilty of both counts to which he pled, and sentenced to 79.5 months’ imprisonment, followed by 8.38 years of sex offender probation.

Sloss was interviewed and evaluated by two psychologists: Dr. Chris Robison in July 2002, and Dr. Clinton Rhyne in August 2002. The other psychologists on the team evaluating Sloss concluded that he met the requirements for involuntary commitment. In the psychological interviews, he denied the assaults. However, he later admitted in deposition that the assaults occurred largely in the manner the victims described. Sloss did not receive sex offender treatment in prison and said he did not need it.

Drs. Robison and Rhyne concluded that Sloss exhibited two mental abnormalities: antisocial personality disorder and para-philia NOS — non-consenting females. Their testimony was substantially similar.

Sloss admitted poor behavior control and demonstrated impulsivity. He expressed no remorse for his assaults. His history, behavior, and crimes supported diagnoses of antisocial personality disorder and paraphilia NOS (non-consenting female). Both doctors concluded that Sloss’s disorders, in addition to his commission of one forcible sexual offense against a stranger while awaiting disposition of his previous forcible sexual offense committed in a public place, indicated that Sloss was at “particularly high risk of reoffense of a sexually violent act” within a reasonable degree of psychological certainty.

Sloss moved for directed verdict, arguing that the State’s evidence consisted entirely of hearsay presented through two expert witnesses. Sloss contended that this violated section 394.9155(5), and that no jury question was presented. The State responded that the doctors’ testimony was direct evidence, and that the section requires live testimony by an expert and prohibits reliance entirely on written reports. The court agreed with the State and denied Sloss’s motion for directed verdict. Sloss presented no testimony.

Sloss had two requests regarding jury instructions that are pertinent on appeal. The first involved his request that the judge add an additional paragraph to the standard instruction to address in greater detail less restrictive alternatives to confinement. The trial court stated the instructions appropriately address the issue of less restrictive alternatives, and that belaboring the issue could be construed as commenting on the evidence: The instruction given largely tracked the standard jury instruction:

To prove the defendant, RICO EMMANUEL SLOSS, is a sexually violent predator, the State must prove each of the following elements by clear and convincing evidence:
a. He has been convicted of a sexually violent offense; • and
b. He suffers from a mental abnormality or personality disorder; and
c. The mental abnormality or personality disorder is such that it makes it seriously difficult for him to control his behavior and he is likely to engage in acts of sexual violence if he is not confined in a secure facility for long-term control, care, and treatment, as opposed to an available less restrictive alternative.
The court finds, and instructs you as a matter of law, that RICO EMMANUEL SLOSS has been convicted of a sexually violent offense.
“Mental abnormality” means a mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses.
“Likely to engage in acts of sexual violence” means a person’s propensity to commit acts of sexual violence is of such a degree that it poses a menace to the health and safety of others.

The court refused Sloss’s requested instruction, which would have added:

Florida law requires that, if a person is found to be a sexually violent predator, then no less restrictive alternative may be permitted, other than involuntary commitment to a secure facility. An example of a less restrictive alternative is out-patient treatment under probation supervision. Therefore, you must determine whether or not a less restrictive alternative exists that would adequately protect society and provide the necessary control, care and treatment of Rico Emmanuel Sloss. If you find that a less restrictive alternative is adequate, then you may not find Rico Emmanuel Sloss to be a sexually violent predator. However, if you find that Rico Emmanuel Sloss meets all of the other elements above, and no less restrictive alternative is adequate, then you must find him to be a sexually violent predator.

The second jury instruction issue on appeal concerns standard instruction 2.08, Verdict and Submitting Case to Jury. Sloss argued that the standard jury instruction predisposes the jury and forces them to find him to be a sexually violent predator. The court noted that the instruction was standard and necessary to understand the verdict form. The instruction given read:

Before the defendant may be confined to a secure facility as a sexually violent predator, your verdict must be unanimous; that is, all of you must agree to the same verdict. The verdict must be the verdict of each juror, as well as the jury as a whole.
If the verdict is not unanimous, but a majority of the jury determines that the defendant is a sexually violent predator, the case may be retried before another jury.
If three or more jurors determine that the defendant has not been proven to be [a] sexually violent predator, he will not be confined to a secure facility as a sexually violent predator and the case will not be retried before another jury.

In closing argument, Sloss’s counsel spoke extensively about the need for the jury to consider outpatient programs, and that it must find no alternatives to secure facilities to find Sloss a sexually violent predator. The jury was polled after it unanimously found Sloss to be a sexually violent predator.

The Jimmy Ryce Act provides for the involuntary civil commitment of persons found to be sexually violent predators. §§ 394.910 — 394.931, Fla. Stat. (2003). A factfinder “must determine by clear and convincing evidence that the respondent (1) has been convicted of an enumerated sexually violent offense; and (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” State v. White, 891 So.2d 502, 502-08 (Fla.2004); § 394.912(10), Fla. Stat. (2008).

The trial court may grant a motion for directed verdict only when there is no reasonable evidence upon which a jury could rule in favor of the nonmoving party. Goolsby v. Qazi, 847 So.2d 1001, 1002 (Fla. 5th DCA 2003) (citing Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999)). The trial court was required to evaluate the testimony in the light most favorable to the State and indulge every reasonable inference in the State’s favor. Id. (citing Cecile Resort, 729 So.2d at 447). We apply that standard on appeal. Id.

Sloss argues that the court erred by denying his motion for directed verdict because there was no clear and convincing evidence supporting Sloss’s involuntary commitment. Sloss argues that “the State’s ... unfounded ‘expert’ opinions” were entirely inadmissible hearsay, given to punish Sloss for his prior offenses, and that there was no evidence to submit to the jury concerning mental abnormality or a serious, currently existing difficulty in controlling sexual behavior.

We hold that the court correctly denied Sloss’s motion for directed verdict. The record demonstrates sufficient evidence to present a jury question and the jury’s verdict. See Hale v. State, 891 So.2d 517, 519 (Fla.2004); Roeling v. State, 880 So.2d 1234,1236 (Fla. 1st DCA 2004). At Sloss’s civil commitment proceeding, the State presented two expert witnesses who testified about Sloss’s psychological condition. See Hale, 891 So.2d at 519. Both diagnosed Sloss with antisocial personality disorder and paraphilia NOS (non-consenting). See id. Both testified that Sloss was at high risk of reoffending. See id. This evidence was unrebutted. See Williams v. State, 882 So.2d 1082, 1084 (Fla. 4th DCA 2004). Even had Sloss presented contrary testimony, the resulting dispute would have “created a jury question on the issue of whether [Sloss] was a sexually violent predator and, accordingly, the trial court” still would have properly denied Sloss’s motion for directed verdict. See Galloway v. State, 900 So.2d 652, 652-53 (Fla. 5th DCA 2005). Therefore, the experts’ testimony, based in part on personal interviews with Sloss and reports of sexual offenses for which Sloss was adjudicated guilty and that Sloss acknowledged in a deposition, presented a jury question. See Donaldson v. State, 888 So.2d 107, 109-10 (Fla. 3d DCA 2004); see also Westerheide v. State, 831 So.2d 93, 97 (Fla.2002) (plurality opinion).

With respect to hearsay, section 394.9155(5) provides:

Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

The trial court concluded correctly that this section does not exclude all testimony based on out-of-court statements, but that it requires some direct testimony regarding Sloss’s mental abnormality or personality disorder. The record indicates that the experts’ opinions were not used as conduits for otherwise inadmissible evidence and hearsay was not the sole basis for Sloss’s commitment. See Lee v. State, 854 So.2d 709, 713 (Fla. 2d DCA 2003). Notably, Sloss did not dispute the accuracy or reliability of much of the hearsay evidence presented. See Lee, 854 So.2d at 713. The trial court did not find that the information utilized by Drs. Rhyne and Robison was unreliable, and little in the record would support such a conclusion. See Lee, 854 So.2d at 714. We conclude that the trial court properly admitted the evidence under section 394.9155(5), which “was of the type appropriately used by experts in formulating their opinions in commitment cases. Also, there was ample nonhearsay evidence presented to support the commitment.” Lee, 854 So.2d at 714; cf. Branch v. State, 890 So.2d 322, 327-28 (Fla. 2d DCA 2004) (ruling, where defendant was not competent and could not challenge factual assertions underlying an expert’s opinions, that “the only basis for the expert’s determination that Branch was a sexually violent predator was hearsay accounts that had been neither tested nor admitted in any judicial proceeding”).

Sloss also argues on appeal that the trial court erred with respect to the jury instructions by denying his requests to depart from the standard jury instructions on two issues. The first concerned his request for elaboration on the less restrictive alternative treatment, and the second concerned the verdict instructions. We hold that the court did not abuse its discretion.

Trial courts have broad discretion to formulate jury instructions. Wester-heide v. State, 767 So.2d 637, 656 (Fla. 5th DCA 2000) (citing Reyka v. Halifax Hosp. Dist., 657 So.2d 967 (Fla. 5th DCA 1995)). The court’s failure to give a particular instruction cannot be reversed unless the error caused a miscarriage of justice or was reasonably calculated to confuse or mislead the jury. Id. (citing Barton Protective Sews., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999)). If the jury instructions fairly state the applicable law, the court’s failure to give a particular instruction is not error. Id. (citing CSX Transp., Inc. v. Whittier, 584 So.2d 579 (Fla. 4th DCA 1991)). “The standard jury instructions are presumed correct and are preferred over special instructions.” Stephens v. State, 787 So.2d 747, 755 (Fla. 2001).

The Florida Supreme Court upheld the standard jury instruction for civil commitment under the Ryce Act, observed that it tracks the statutory language, and ruled that it accurately reflects the requirements of the Ryce Act. White, 891 So.2d at 506-07, 510; Hale, 891 So.2d at 520. Accordingly, the only other court to expressly address instructing the jury on less restrictive alternatives rejected the claim of error. Donaldson, 888 So.2d at 110.

“The statutory definition of a sexually violent predator renders less restrictive alternatives inapplicable.” Wester-heide, 831 So.2d at 103 (plurality opinion). The statute and instruction clearly provided that the jury must find Sloss was “likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10)(b), Fla. Stat. (2001). This excludes “measures- less restrictive than total confinement.” Williams v. State, 909 So.2d 939, 940 (Fla. 5th DCA 2005).

The standard jury instruction correctly instructed the jury and was neither confusing nor misleading; thus, Sloss cannot overcome the presumption of its correctness. See Westerheide, 767 So.2d at 656.

Sloss’s argument that the second instruction was a “dynamite’charge” is baseless. Sloss cites inapposite cases to argue that the judge’s use of the standard jury instruction was error; ironically, the only case remotely on point involved a reversal of the trial court for deviating from the standard jury charge. See Goodwin v. State, 717 So.2d 561, 562 (Fla. 2d DCA 1998). The jury was polled and unanimously found Sloss to be a sexually violent predator. It did so under the standard jury instructions approved by the supreme court. There was no abuse of discretion.

AFFIRMED.

PALMER and MONACO, JJ., concur.

      . §§ 394.910 — 394.931, Fla. Stat. (2003).


author: MONACO, J.

text:
    R.W., Mother of N.W., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-3495.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      Diana K. Simpson of Diana Kilpatrick Simpson, P.A., Ocala, for Appellant.
    Ralph J. McMurphy, of Department of Children and Families, Wildwood, for Ap-pellee.
    Patricia M. Propheter, Orlando, for Guardian ad Litem.
   MONACO, J.

We have reviewed the Order of Adjudication and Judgment of Termination of Parental Rights and Permanent Commitment for Adoption rendered by the trial court with respect to the child, N.W., and her biological mother, R.W., in order to determine whether the order is supported by clear and convincing evidence. See L.F. v. Dep’t of Children & Families, 888 So.2d 147, 148 (Fla. 5th DCA 2004). We have concluded after a thorough review of the record that there is sufficient evidence of such quality and quantity in the record to support the order, and agree, as well, with the trial court’s conclusion that termination is in the manifest best interest of N.W. Given the child’s multiple serious medical conditions, and the mother’s repeated incapacity to provide the necessary care required by N.W., together with the mother’s demonstrated inability to complete the agreed upon case plans and to care adequately for N.W., the termination of parental rights was clearly necessary to safeguard the health and safety of the child. We, therefore, affirm.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.


author: ORFINGER, J.

text:
    Marcela ALMODOVAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-701.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2006.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Marcela Almodovar appeals her convictions for trafficking in cocaine and conspiracy to traffic in cocaine. Almodovar contends that the trial court erred when it allowed the jury to read English translations of her taped telephone conversations spoken in Spanish. Finding the error to be harmless, we affirm.

At trial, Almodovar moved to exclude from the jury’s view typed translations, prepared by law enforcement, of various audiotaped telephone conversations Almodovar took part in. The taped telephone conversations were all in Spanish. Almodovar claims that the trial court erred in allowing the jury to read transcripts of English translations of her Spanish telephone calls. We agree it was error because there was no evidence in the record that the translations were made by an interpreter sworn to give faithful and accurate translations. See Yanez v. State, 744 So.2d 601, 604 (Fla. 2d DCA 1999); Ortega v. State, 721 So.2d 350 (Fla. 2d DCA 1998).

Although the trial court erred in allowing the jury to view the transcripts, this error is subject to a harmless error analysis. Applying the standards of that test, we conclude that the error was harmless because Almodovar asserted no concerns about the accuracy of the transcripts, but merely the lack of certification that the translator had taken an oath before creating the documents. Accordingly, we find that there was no reasonable possibility that the error contributed to Almo-dovar’s conviction. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.

PLEUS, C.J., and SAWAYA, J., concur.


text:
    Nathaniel MORROW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1220.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.

      Nathaniel Morrow, in proper person.
    Charles J. Crist, Jr., Attorney General, and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

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


text:
    Larry Clyde READON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-362.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Larry Clyde Readon, in proper person.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). All but one of the allegations raised on appeal are without merit and do. not require discussion. The sole viable issue is that the written sentence did not comport with the oral pronouncement of sentence. We do not address the merits of this issue because the matter was not presented to the trial court in the original Rule 3.800(a) motion. We therefore affirm without prejudice to allow defendant to file a 3.800(a) motion on this issue.

' Affirmed.


text:
    Gary Lee WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2511.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Gary Lee Williams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   PER CURIAM.

The motion for rehearing is hereby denied. We withdraw our December 21, 2005 opinion and substitute the following in its place.

Appellant Gary Lee Williams appeals the denial of his “Independent Action Under Extrinsic Fraud pursuant to RCP Rule 1.540(b)(3) and Fed. Rules Civ. Proc. Rule 60(b)(3).” As the Florida Supreme Court stated in Steinhorst v. State, 636 So.2d 498, 500 (Fla.1994): “By its own terms, rule 1.540 applies only to civil causes, not to collateral claims associated with a criminal conviction.” It appears that the circuit court therefore treated Williams’ filing as a 3.850 motion and denied it as time-barred. We find no error.

Affirmed.


text:
    Donnell GARDNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2668.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Donnell Gardner, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.850. Although the trial court indicates on the order that the denial was pursuant to an evidentiary hearing, it is in the form of a summary denial and no transcripts or record are attached in support of the decision. 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 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:
    Rene O. ZELAYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2735.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.

      Rene 0. Zelaya, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Rene Zelaya appeals an order denying his motion under Florida Rule of Criminal Procedure 3.800 for credit for jail time served. We reverse and remand.

The record before us is unclear concerning whether Zelaya is entitled to the jail time credit he seeks. The State claims that Zelaya is not entitled to additional credit because he waived such credit. The plea transcript, however, was not attached to the order of denial.

Because the record before us fails to conclusively demonstrate that the appellant is not entitled to any relief, we reverse the denial of Zelaya’s motion for post conviction relief. See Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005); Fla. R.Crim. P. 3.850(d); Fla. R.App. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”). See also Barfield v. State, 900 So.2d 723 (Fla. 3d DCA 2005); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000). On remand, the trial court should either attach those portions of the record that conclusively refute Zelaya’s claim or award him the appropriate credit for time served.

Reversed.


text:
    Travis BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2834.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Travis Brown, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD, and ROTHENBERG, 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).

Defendant argues that he is entitled to jail time credit which was not waived as part of a plea agreement. Because the record now before us fails to make the required showing, see Lundy v. State, 912 So.2d 671 (Fla. 3d DCA 2005), 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:
    Hector GURROLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-321.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Hector Gurrola, in proper person..
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Hector Gurrola appeals an order denying his motion under Florida Rule of Criminal Procedure 3.800 for credit for jail time served. We reverse and remand.

Because the record before us fails to conclusively demonstrate that Gurrola is not entitled to any relief, we reverse the denial of his motion for post conviction relief. See Fla. R.Crim. P. 3.850(d); Fla. RApp. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”). See also Barfield v. State, 900 So.2d 723 (Fla. 3d DCA 2005); Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000). On remand, the trial court should either attach those portions of the record that conclusively refute Gurrola’s claim or award him the appropriate credit for time served.

Reversed.


text:
    Curtis JACOBS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-435.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Curtis Jacobs, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Herring v. State, 730 So.2d 1264 (Fla.1998).