text:
    Gregory Edward OLSEN, Appellant, v. Patricia Joyce OLSEN, Appellee.
    No. 5D06-1819.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2007.

      James R. Dressier, Cocoa Beach, for Appellant.
    Paul M. Goldman of Dean Mead, Viera, for Appellee.
   PER CURIAM.

Gregory Olsen [“Former Husband”] appeals an alimony modification order because it reduced his alimony obligation after his retirement from $450 to $200 rather than eliminating it. At the time of the March 2006 hearing, the Former Husband was 67 and Patricia Olsen [“Former Wife”] was 65. They were married in May 1974 and separated in December 1989. The court had entered a final judgment of dissolution in December 1996. In it, the court had found the Former Husband was a real estate broker in good health and the Former Wife was a former sales clerk who would have difficulty working due to various ailments. The court equitably distributed more than $800,000 of property, including their home, real property in North Carolina, mortgages, stocks, and investment accounts. The court found that both parties were capable of employment, but his earning capacity exceeded hers; accordingly, the court ordered him to pay permanent periodic alimony of $450 monthly. This court affirmed the alimony and equitable distribution portions of the final judgment. Olsen v. Olsen, 709 So.2d 614 (Fla. 5th DCA 1998).

In 2002, the Former Wife filed motions for contempt and enforcement, which resulted in an order finding the Former Husband to be delinquent and in contempt. They settled the arrearages through March 2004, but Former Husband continued to refuse to pay alimony.

In March 2004, the Former Husband filed a supplemental petition to modify final judgment. In the Former Wife’s June 2004 financial affidavit, which the court relied on subsequently at trial, she alleged a monthly gross income of $2,204.40, monthly expenses totaling $2,803.70, assets of $650,170.94, and liabilities of $4,822.26.

The modification hearing did not occur until March 2006. The Former Wife testified that she was receiving $442 monthly through social security and working full-time as a hotel desk clerk for $8.50 per hour-whieh was $1 more hourly than calculated in her 2004 affidavit. She believed there was no income change because she had to drive an additional nine miles to and from work each day. She claimed monthly living expenses of $2,813. She testified that she no longer had a car payment.

The Former Wife receives money regularly from annuities that she purchased with her equitable distribution. The monthly withdrawals vary from $1,004 to $1,056. Even though she had to withdraw more than she intended as a result of the Former Husband’s chronic non-payment of alimony, she testified that the value of the annuities grew from the end of 2002 to the end of 2003, and- was sure they had increased further. At trial, she acknowledged about $305,000 in liquid assets.

Former Wife testified to multiple health issues: gallbladder surgery in 2004; two knee surgeries, the latest of which was in October 2005; significant treatments for back problems, a cane and back brace to assist her in walking, and irritable bowel syndrome.

The Former Husband testified that he earned no salary since 1999 due to poor health. He discussed back problems leading to and continuing after his 2003 surgery. He had prescriptions for hypertension, prostate problems, and back relaxant or pain medicines. He married real estate broker, Carol Melanson, in November 2001, and they filed joint returns from 2001 through 2004. Melanson generally paid for everything. As to work, the Former Husband explained that his real estate license expired in 2005, was renewed, but was inactive at the time of trial. In 2005, his license was registered with a Century 21 company that Melanson owned and for which the Former Husband was once the president, but he claimed he had sold no real estate since 1999. He used to have a cubicle at the office, where he went once or twice each week until he retired. He considered his retirement to be partly voluntary and partly medical.

Though the Former Husband claimed no substantial assets,-there was considerable doubt about several properties he claimed not to own. He and his wife owned several properties jointly, which he had not listed on his affidavit because they were encumbered by mortgages and “probably” made no income. He conceded he might have eo-owned some real estate, but had not put it on his affidavit because he did not feel like the owner. He knew nothing about the properties because they were his wife’s business, and they never really talked about it. He obtained a mortgage loan on a commercial building in 1999 that he conveyed to Melanson and himself in 2003. There were other complexes or properties in which his name appeared as co-owner or co-signer, but he testified he knew little about them.

By the court’s calculation of the Former Wife’s income and expenses, the Former Wife faced a monthly deficit of $521.53. Due to her age and health issues, the court found there may be some time where she will be unable to work. The court found that the Former Husband’s retirement and proposed termination of the $450 alimony “may place the Former Wife in peril of poverty in the short and long term.” See Pimm v. Pimm, 601 So.2d 534 (Fla.1992). In Pimm, the court explained that:

Even at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty.

Id. at 537.

Therefore, the court did not eliminate alimony but reduced it to $200.

It does appear from the judgment that the trial court may have miscalculated the Former Wife’s expenses. The transcript and record show that, working from the Former Wife’s 2004 affidavit and 2006 testimony, the court did not deduct the $98.42 for long-term health care and a $340 car payment that the Former Wife no longer paid. Those adjustments, if not offset, would reduce the Former Wife’s monthly deficit significantly and might well affect the trial court’s conclusion that Former Wife would experience poverty in the short term. Also, the findings concerning Former Wife’s income and rate of depletion of her annuities appears inconsistent. Accordingly, we reverse and remand to the trial court to redetermine Former Wife’s income and expenses and to reconsider the reduction or elimination of alimony.

REVERSED and REMANDED.

PALMER, C.J., GRIFFIN and SAWAYA, JJ., concur.

      . If the court concludes that Former Wife is not currently in peril of poverty, a reduction of alimony to a nominal amount may be an option. See, e.g., Fleck v. Fleck, 958 So.2d 1043 (Fla. 2d DCA 2007); Marshall v. Marshall, 953 So.2d 23 (Fla. 5th DCA 2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bernard C. McGEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2972.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Bernard C. McGee, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Thomas Clyde KENNEDY, Petitioner, v. FLORIDA PAROLE COMMISSION and Florida Department of Corrections, Respondents.
    No. 1D07-4475.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Thomas Clyde Kennedy, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Powell v. Florida Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

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


text:
    Roy H. MIDDLETON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4472.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Roy H. Middleton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Jorge Daniel HITCHMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2192.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 16, 2007.
    Jorge Daniel Hitchman, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

The petition for writ of certiorari is hereby treated as an appeal of a order denying a motion under Florida Rule of Criminal Procedure 3.800(a), and is affirmed.


author: SUAREZ, J.

text:
    COUNTY LINE CHIROPRACTIC CENTER, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D07-1433.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Stuart B. Yanofsky, Hollywood, for petitioner.
    Lara J. Edelstein, Boca Raton, for respondent.

      Before GREEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

County Line Chiropractic Center petitions for a writ of certiorari seeking review of a decision of the Eleventh Judicial Circuit acting in its appellate capacity denying review of an interlocutory order of the Miami-Dade County Court denying expert witness fees of a treating physician in a PIP case. We deny the petition for certio-rari. See Fla. R.App. P. 9.130(a)(8); Valenzuela v. Valenzuela, 648 So.2d 741 (Fla. 3d DCA 1994) (question of expert witness fees is a non-final, non-appealable order not to be treated as a petition for certiora-ri by either the district court of appeal or the appellate division of the circuit court).

Petition for Writ of Certiorari denied.


text:
    Phillis C. JODNAUTH, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 3D07-1350.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Phillis C. Jodnauth, for appellant.
    John D. Maher, Tallahassee, for appel-lee.
    Before GERSTEN, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The appellant’s failure, without cognizable excuse, to file a timely appeal from the adjudicator’s adverse determination of her unemployment compensation claim rendered the appeals referee without jurisdiction to consider the appeal. See § 443.151(3)(a), Fla. Stat. (2006). This Court is similarly bound by the law to affirm that determination. See Leon v. Unemployment Appeals Comm’n, 476 So.2d 761 (Fla. 3d DCA 1985).

Affirmed.


text:
    Elliot Courtney McKNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-938.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.

      Elliot Courtney McKnight, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before COPE, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

This is an appeal from a trial court order denying the appellant’s pro se post-sentencing motion to withdraw his plea. The motion was initially, and erroneously, filed with this Court on January 4, 2007. The motion was then transferred to the circuit court for consideration and disposition. See Fla. R.App. P. 9.040(b)(1).

The circuit court denied the motion for lack of jurisdiction and lack of the sentencing transcript, apparently believing that the erroneous filing with this Court had deprived the circuit court of jurisdiction. The appellant then filed a pro se notice of appeal from that order.

The record affirmatively shows that the appellant’s motion was untimely. Fla. R.Crim. P. 3.170(Z). Rendition of sentence occurred on November 21, 2006, and the motion to withdraw plea was not provided to the South Florida Reception Center for mailing until December 29, 2006.

We therefore affirm the order below as the motion was untimely. “Failure to file a motion to withdraw the plea within 30 days waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.” Gafford v. State, 783 So.2d 1191, 1192 (Fla. 1st DCA 2001).

Affirmed.


text:
    Ronald ORCHOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1304.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal arises from the sentence imposed upon Ronald Orchowski following his no contest plea to violations of the probation imposed in lower court case numbers 95-18432CF10B and 96-14400CF10A and to the substantive criminal charges brought in case number 03-2587CF10A. At sentencing, a single 1994 guidelines score sheet was utilized for the 1995 and 1996 cases, and a second Criminal Punishment Code score sheet was utilized for the 2003 case. The 1994 score sheet included four “legal status” points. For the 1995 and 1996 cases, the trial court imposed the minimum prison sentence as calculated on the score sheet. In this appeal, as in his 3.800(b) motion, Or-chowski seeks reversal of that sentence, arguing that “legal status points are assessed by looking to whether the defendant was on probation at the time he committed the offense — not the time of sentencing, see Florida Rule of Criminal Procedure 3.701(d)(6); that there was no evidence at the sentencing hearing that he was on probation at the time the 1995 and 1996 crimes were committed; and, thus, that he is entitled to be resentenced.

The State has conceded that Orchowski is entitled to be resentenced under a corrected score sheet. We thus reverse the sentence imposed for the 1995 and 1996 lower court case numbers and remand for resentencing. On remand, the State shall have the opportunity to present evidence demonstrating that the legal status points were, in fact, correctly included on the score sheet. Cf. Cameron v. State, 807 So.2d 746 (Fla. 4th DCA 2002) (reversing HFO sentence where State failed to present evidence of predicates for HFO sentencing, but permitting State to present such evidence on remand as resentencing is a new proceeding); Frazier v. State, 595 So.2d 131 (Fla. 2d DCA 1992) (following reversal and remand for resentencing, State would have opportunity to present evidence demonstrating defendant qualified for HFO sentence as defendant failed to object to deficiencies in proof at initial sentencing).

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


author: FARMER, J.

text:
    Bobby BYRD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2341.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Neil M. Nameroff of Neil M. Nameroff, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Convicted of felony driving while license suspended as a habitual offender, defendant complains on appeal that, among other things, the stop of his vehicle was improper. We disagree and affirm.

A 24-year veteran with the Florida Highway Patrol was on patrol in Martin County late at night. Owing to a hurricane, the roads were desolate, drivers few. At a turnpike overpass, she heard another vehicle approaching. Looking in her rear view mirror, she saw what proved to be defendant’s vehicle and, applying her training and experience, estimated his speed in the range of 60-65 mph in a 50 mph zone. The car braked hard when the officer’s vehicle came into view. Thinking the driver might be under the influence, she decided to follow the vehicle and then made a stop. As she approached the ear, her suspicion of impairment was dispelled. She asked for a driver’s license to make a routine check. Defendant told her his license was suspended, which she immediately verified by computer check. She cited him for driving while license suspended. Later he was charged with the crime for which he was later convicted.

Defendant argues on appeal, as he did below, that the officer had no cause to stop his vehicle, and thus any statements made after the stop should be suppressed. He voices skepticism about the officer’s testimony that through her rear-view mirror she could estimate his speed on a desolate road at night, without the ability to compare it with other vehicles, and at the top of a hill where he immediately decelerated. He also argues that his driving gave no indication of intoxication.

The trial court believed the officer’s testimony as to her reasons for suspecting him of speeding. The finding was supported by competent, substantial evidence. We cannot reweigh the evidence as to the officer’s basis for believing that defendant was speeding. See State v. Glatzmayer, 789 So .2d 297, 301 (Fla.2001) (“Appellate courts cannot use their review powers in such cases as a mechanism for reevaluating conflicting testimony and exerting covert control over the factual findings. As with all trial court rulings, a suppression ruling comes to the reviewing court clad in a presumption of correctness as to all fact-based issues, and the proper standard of review depends on the nature of the ruling in each case.”).

In applying her training and long experience, the officer is free to draw conclusions from what she has seen, so long as they are not patently unreasonable. Here they are not. The trial court having found that her conclusion was not unreasonable under the circumstances, the law is clear that the officer’s stop was legal. State v. Kindle, 782 So.2d 971, 973 (Fla. 5th DCA 2001).

Finding no merit in any other issue raised, the conviction is hereby

Affirmed.

GUNTHER and HOROWITZ, ALFRED J., Associate Judge, concur.


text:
    Herns TIMOTHEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3297.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The issue in this appeal from a finding of violation of probation (VOP) is whether the record supports the charge that defendant gave an intentionally false name to inquiring police officers. We reverse.

After serving his sentence of incarceration defendant was released to probation. A few weeks into the period, his probation officer instructed him about his duties to avoid violating the law. On the very next day, he was stopped by a police officer near midnight for bicycling without a light. According to the officer, when asked he gave his name as “Ernest” Timothee and supplied his correct day of birth. The officer was advised by radio that he had no record. At that point the officer was called away to another investigation before he could satisfy himself as to defendant’s identity. The next day, in response to a BOLO about a brown vehicle suspected of carrying guns, he stopped a vehicle, only to find defendant in a rear passenger seat.

Again the officer asked defendant his name, and again (according to the officer) defendant said “Ernest” Timothee. Another officer on the scene asked defendant for his social security number, and defendant gave him a number. The electronic record there and then available to the officers showed that the person assigned to that number was said to be “Hervens” Timothee. Realizing possible confusion, defendant at that point spontaneously identified himself as a convicted felon, giving the officers his prisoner identification number from the Department of Corrections, and advising that those records would supply the details of his correct identification. When the officers checked the DOC number, it indicated that the prisoner’s name was Leon Jackson. Defendant thereupon explained to the officers that the State records would disclose that he had used as many as 21 alias identifications in the past and that they should rely on DOC records as to his identity and record. At that point the officers arrested and charged him with non-violent resistance for supplying the officers with a false name. Although this charge was later dropped, the State brought VOP proceedings against defendant based on the incident. It is from that finding that we have this appeal.

If the record indicated that this case simply involved a repeat offender with so many names and violations that his responses to the officers represented just one more occasion of using an alias to conceal identity, we would have little hesitancy in affirming. But in this instance, it was defendant himself who promptly and voluntarily advised the police officers of his prison record, urging them to rely on those records for all details of his correct identity. His voluntary and spontaneous provision of his prison record for identification purposes affords him a “safe harbor” from any charge of resisting the officers in their duties arising from their attempt to ascertain the identity of the individual with whom the officers were dealing. It erases any evidence that he was voluntarily and purposefully trying to conceal his true identity.

Reversed.

GUNTHER, J., and HOROWITZ, ALFRED J., Associate Judge, concur.


text:
    Kevin Jermaine KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3646.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979). However, we remand the case to the trial court with directions for it to re-enter, nunc pro tune, the judgment it entered on September 12, 2006, after the appellant’s filing of his notice of appeal had divested the trial court of jurisdiction.

GUNTHER, POLEN and GROSS, JJ., concur.


text:
    George HARBESON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4638.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, and George Harbeson, Ft. Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this Anders appeal, we affirm the order revoking Harbeson’s probation and imposing sentence, but we remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007); Rey v. State, 904 So.2d 566 (Fla. 4th DCA 2005), Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004), Anderson v. State, 879 So.2d 688 (Fla. 4th DCA 2004), Campbell v. State, 776 So.2d 1036 (Fla. 4th DCA 2001), Greene v. State, 919 So.2d 684 (Fla. 2d DCA 2006). We note that the judge specified those conditions on the record, but a written order is required to incorporate those findings.

Affirmed, but remanded.

GUNTHER, POLEN and KLEIN, JJ., concur.

      . In re. Anders Briefs, 581 So.2d 149 (Fla. 1991).


text:
    Mark ARZUMAN, Appellant, v. Shamsah SAUD, Appellee.
    No. 4D06-4958.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Richard C. Bagdasarian of Richard C. Bagdasarian, P.A., Boca Raton, for appellant.
    Lawrence Bunin of Lawrence Bunin, P.A., Plantation, for appellee.
   FARMER, J.

The original owner seeks recovery of realty that she claims her attorney-in-fact unauthorizedly transferred to himself under a durable power of attorney. - Three months after filing suit, she sought the appointment of a receiver for the property, noting that liens against the property had been recently filed by the taxing authority and a homeowners association and that the property was in a state of disrepair. Over the objection of defendant, the trial court entered an order granting the motion and appointing Cindy Kehoe, as receiver, a local real estate agent. The trial court instructed her to make an evaluation of the property and to entertain offers for its purchase. Defendant did not timely seek non-final review of the order appointing the Receiver.

Months later the Receiver petitioned the court for authority to accept an offer and sell the property. Her motion asserted that the property was uninhabitable, that tax and lien foreclosure were imminent, and that the offer was a fair price for the property “as is” without the necessity of making repairs. The court held an eviden-tiary hearing and heard testimony and received photographic and documentary evidence. Based on that evidence the court made the following findings:

“the property ... is in a total state of disrepair. The residence has mold infiltration and rodent infestation. Taxes have not been paid and various foreclosure claims have been filed against the property by the Homeowners Association for maintenance and/or assessments. The interior of the structure shows water damage as well as drywall separation from the walls and decay. The exterior is overgrown, the pool is non-functioning and a health danger, and the exterior shows numerous failures of stucco, cracks and overall lack of repair.... Neither of the parties has either the funds, ability or desire to maintain the premises or to prevent its sale at tax foreclosure.... “Essentially the terms of the offer are $475,000 cash with no contingency for financing in an “as is” condition.... [T]he purchaser plans to demolish the house and build another.... The court finds that the offer is fair, reasonable and just under the circumstances. The Court accepts the Receiver’s testimony that the current condition of the premises is uninhabitable and, given the current real estate market conditions, the buyer’s offer to purchase is a very good one and should be accepted. The Receiver is a licensed real estate agent who is familiar with properties in the area. Absent sale the property could well be lost or destroyed. Moreover, in its current condition, the house appears to be uninsurable, and constitutes possible liability to the parties.”

The order approved the sale, directed the Receiver to proceed with closing, authorized the Receiver to execute all necessary instruments of title for conveyance, and ordered the proceeds held in escrow by the Receiver’s attorney pending further order of the court. Defendant seeks non-final review of both the order appointing the Receiver and the order authorizing the sale.

Defendant is not entitled to review of the order appointing the Receiver because of untimeliness. As to the authority to proceed with the sale, the closing required by the order will result in an immediate transfer of possession of the residence to the buyer. We conclude that the order is renewable as an order providing for the immediate possession of property.

We find competent substantial evidence to support the findings of the trial court. These findings establish sufficient reason to allow the sale to proceed. Not only is the property in peril of loss to both parties by reason of foreclosure, but in its current condition represents a significant health and safety hazard. Neither party is able or willing to take necessary action to repair the property, satisfy taxes or liens, or make any possessory use of the premises. Under these circumstances, a sale would preserve the real interest of both parties in the controversy, transferring the claims of title in the realty to the proceeds of its sale. The trial court acted well within reasonable discretion in so providing.

Affirmed.

GUNTHER and MAY, JJ„ concur.


author: TAYLOR, J.

text:
    David JENSEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-40.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    David Jensen, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

David Jensen appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of all claims, except claims five and seven.

In claim five of the postconviction motion, appellant alleged that counsel was ineffective in allowing him to appear at his jury trial in prison attire and in failing to object to his appearing before the jury in leg shackles. He alleged that the jury actually saw and heard the iron shackles. Because appellant’s claim of ineffective assistance is facially sufficient and not conclusively refuted by the record, the trial court erred in summarily denying this claim. See Miller v. State, 852 So.2d 904 (Fla. 4th DCA 2003) (holding that the defendant’s claim that counsel was ineffective for failing to object to his appearing before the jury in leg restraints was facially sufficient).

In claim seven, appellant alleged that counsel provided ineffective assistance by failing to call certain alibi witnesses at trial. Because appellant’s motion alleged availability of the witnesses and otherwise met the requirements of Nelson v. State, 875 So.2d 579 (Fla.2004), we hold that it was facially sufficient.

Accordingly, we reverse and remand for an evidentiary hearing or attachment of portions of the record that conclusively refute appellant’s claims five and seven.

Affirmed in part; Reversed in part and Remanded.

SHAHOOD, C.J., and WARNER, J., concur.


author: KLEIN, J.

text:
    William B. SHIELDS, Jr., Petitioner, v. Phillip SCHUMAN; Plantation Office Park, Inc., a Florida corporation; Plantation Office Park II, Inc., a Florida corporation; and Blue Water VII, LLC, a Florida limited liability company, Respondents.
    No. 4D07-1858.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., and Barry G. Roderman of Barry G. Roderman & Associates, P.A., Ft. Lauderdale, for petitioner.
    John H. Pelzer and Robin F. Hazel of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, for respondent Blue Water.
    Albert L. Frevola, Jr. and Cristina M. Pierson of Gordon, Hargrove & James, P.A., Ft. Lauderdale, for respondents Phillip Schuman, Plantation Office Park, Inc. and Plantation Office Park II, Inc.
   KLEIN, J.

Shields is a minority shareholder in a corporation which, over his objection, contracted to sell an office park to Blue Water. Shields filed this lawsuit seeking, among other things, to enjoin the sale. The trial court, after hearing testimony that two of the counts in the complaint created a cloud on the title, even though a previously filed notice of lis pendens had been discharged, ordered Shields to post a bond of $8.5 million as a condition of maintaining the two counts in his complaint. We grant Shields’s petition for certiorari.

Shields owns twenty-five percent of the stock and Schuman owns the remaining seventy-five percent in each of two corporations, Plantation I and Plantation II, which together own an office park. Schu-man, as majority shareholder, had the corporations sign a contract to sell the office park to Blue Water for $12 million. Shields objected because the sale price was too low and filed this lawsuit, seeking injunctive as well as other relief to prevent the sale. He also filed a notice of lis pendens. In response to a motion filed by one of the defendants, the court ordered Shields to post an $8.5 million bond in order to maintain the lis pendens. Shields did not post the bond and the lis pendens was dissolved.

After the lis pendens had been discharged, Blue Water moved to dismiss counts V and X of the complaint, or in the alternative to require Shields to post a bond in order to maintain those two counts. At a hearing Blue Water presented expert testimony to the effect that these two counts clouded the title and that the title could not be insured. The court was reluctant to require a bond, where there was no pending lis pendens, without some authority, but did so after Blue Water cited Maplewood Phase One Homeowner’s Ass’n, Inc. v. Cecil, 585 So.2d 370 (Fla. 4th DCA 1991), and Archive America, Inc. v. Variety Children’s Hospital, 873 So.2d 359 (Fla. 3d DCA 2004). These cases, however, are distinguishable in that they both involved existing liens which the courts permitted to be transferred to bonds. The respondent cites no authority which would authorize requiring a bond to be posted in order to maintain a lawsuit under these circumstances.

In Psychiatric Associates v. Siegel, 610 So.2d 419 (Fla.1992), the issue was whether a statute requiring a plaintiff to post a bond sufficient to cover defendant’s costs and attorney’s fees, before an action could be prosecuted, violated plaintiffs right of access to the courts guaranteed by Article I, section 21, Florida Constitution. Our supreme court held the statute unconstitutional.

The order requiring a bond in this case, which is not related to a lis pendens, violates plaintiffs constitutional right of access to the courts. We accordingly have no trouble concluding that it constitutes a departure from the essential requirements of law. We accordingly grant certiorari review, which is our method for review of orders which improperly require a party to post a bond to maintain a lis pendens, S & T Builders v. Globe Props., Inc., 909 So.2d 375 (Fla. 4th DCA 2005), approved, 944 So.2d 302 (Fla.2006), and quash the order requiring the bond.

STEVENSON and HAZOURI, JJ„ concur.

      . We are not unsympathetic to the predicament of the respondents; however, it is not unusual for title insurability problems to be created by litigation involving real estate. For example, even where a lis pendens is discharged because of the failure to post a bond, the lis pendens does not simply vanish, but rather remains to be found by anyone searching the title to the property. See Real Property, Probate and Trust Law: Specific Performance of Real Estate Contracts: Legal Blackmail, Gerald F. Richman and Mark A. Romance, 72 Fla. Bar J. 54 (Nov. 1998) (suggesting possible solutions, including legislation, to address the problems of uninsurability and unmarketability caused by litigation, even where a lis pendens has not been filed or has been discharged).


author: WARNER, J.

text:
    Collie SINGLETON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2148.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Sept. 19, 2007.

      Collie Singleton, Lake City, pro se.
    No response required for respondent.
   WARNER, J.

Collie Singleton filed a petition for writ of habeas corpus for ineffective assistance of appellate counsel claiming that his current habitual offender sentence should have been challenged on appeal, because the trial court used predicate convictions that the original sentencing judge had not relied on to habitualize petitioner. We deny the petition.

When considering a challenge to appellate counsel’s effectiveness, the petitioner must show that the alleged error is of such magnitude as to constitute a serious error or deficiency in performance which compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Ponticelli v. State, 941 So.2d 1073, 1106 (Fla.2006). Because the record reflects that petitioner had qualifying convictions for habitual offender sentencing, which were relied on by the trial court, no prejudice has been shown.

Although the same convictions may not have been used by the original sentencing judge as qualifiers for a habitual violent offender sentence, this did not prevent the use of those convictions to prove habitual felony offender status upon resentencing. See Wainer v. State, 798 So.2d 885 (Fla. 4th DCA 2001) (in resentencing after reversal of habitual offender sentence, state could again seek sentencing as a habitual felony offender, subject to evidence of satisfactory predictate convictions).

Petitioner misreads Alfonso v. State, 659 So.2d 478 (Fla. 4th DCA 1995). There, we reversed a habitual offender sentence where the trial court in sentencing the defendant relied on two contemporaneous convictions, which the state conceded was error. We noted that the sentencing order supplied other convictions, but the sentence must be reviewed based upon the oral pronouncement, not what the sentencing order stated. That is simply an acknowledgment that the oral pronouncement of sentence prevails over the written order. Thus, if the trial court did not use the specific convictions at sentencing, we could not affirm on a “right for the wrong reasons analysis.” We did not proclaim that the state may not use other convictions not relied upon at the original sentencing upon resentencing, and we simply reversed and remanded for resentencing. Alfonso is distinguishable from this case.

For these reasons, we deny the petition.

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


text:
    James R. McFARLANE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2622.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Jerome M. Rosenblum of Jerome M. Rosenblum, P.A., Hollywood, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

James McFarlane petitions this court for a writ of prohibition to prohibit the circuit court, in its appellate capacity, from continuing to exercise jurisdiction in his case, or in the alternative to relinquish jurisdiction so the county court may rule on petitioner’s pending motion for speedy trial discharge.

McFarlane was charged with one count of driving under the influence and one count of reckless driving. He was arrested on June 17, 2006. On September 20, 2006, one hundred days later, McFarlane filed a notice of speedy trial expiration in the county court. Florida Rule of Criminal Procedure 3.191(p)(3) states:

No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Per rule 3.191(p)(3), a hearing on the notice was held on September 25, 2006. At that point, the state had ten days in which to bring McFarlane to trial. On the tenth day, October 5, 2006, McFarlane moved for dismissal of the charges in the county court, alleging that the prosecution lost a videotape taken of McFarlane after his arrest. McFarlane alleged that the absence of the videotape precluded him from rebutting the alleged indicators of impairment recited in the probable cause affidavit. The trial court conducted an evidentiary hearing and granted the motion to dismiss that same day. The state immediately filed a notice of appeal in the circuit court. On October 6, 2006, McFar-lane filed a motion for speedy trial discharge in the county court; however, the county court has not ruled on the motion for discharge due to the filing of the notice of appeal in the circuit court because it lacks jurisdiction to do so.

On February 9, 2007, McFarlane filed a motion to dismiss the state’s appeal in the circuit court on the grounds of mootness or, in the alternative, to relinquish jurisdiction to the county court to rule on petitioner’s pending motion for discharge. Thereafter, McFarlane filed a motion in the circuit court for final order. The circuit court, in its appellate capacity, denied McFarlane’s motion for final order.

We deny the writ of prohibition. See English v. McCrary, 348 So.2d 293, 296 (Fla.1977) (stating that “[prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction”). In the state’s response to this court’s rule to show cause, the state does not object to this court directing the circuit court to temporarily relinquish jurisdiction to the county court to rule on McFarlane’s pending motion for speedy trial discharge. Accordingly, we direct the circuit court, sitting in its appellate capacity, to temporarily relinquish jurisdiction for a determination of McFarlane’s motion for speedy trial discharge.

Petition Denied.

GUNTHER, HAZOURI and MAY, JJV concur.


text:
    COMMERCEBANK, N.A., Appellant, v. Howard E. TAYLOR, Appellee.
    Nos. 3D06-2948, 3D06-2945.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rones & Navarro, and Victor K. Rones, North Miami Beach, for appellant.
    Deborah Marks, Miami, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Commercebank N.A., plaintiff in an action to enforce a promissory note, appeals an order declining to award interest on an attorneys’ fee award, and an order finding that the statute of limitations tolls enforcement of a final judgment in Commerce-bank’s favor against Howard E. Taylor. Because Taylor, the defendant/appellee, has conceded error on the first issue, we reverse that order.

We affirm the order tolling enforcement of the final judgment. The trial court properly found that all execution directed at a judgment must cease at the expiration of 20 years from rendition of that judgment. § 95.11(1), Fla. Stat. (2007); Marsh v. Patckett, 788 So.2d 353 (Fla. 3d DCA 2001). Additionally, Taylor’s absence from the jurisdiction did not toll the statute of limitations. See § 95.051(a), Fla. Stat. (2007). Service on Taylor was possible by publication, under section 49.011(9), Florida Statutes (2007). Commercebank did not do so. However, by this service, Com-mercebank need not have postponed its actions to enforce the judgment.

Affirmed in part.


text:
    H.D., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D07-845.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 12, 2007.
    Domenic Landolina, Stuart, for appellant.
    Anthony C. Musto, Hallandale Beach, for Appellee-Department of Children and Families.
    Patricia M. Propheter, Orlando, for Ap-pellee-Guardian Ad Litem Program.
   PER CURIAM.

The mother, H.D., appeals from a final judgment terminating her parental rights to her minor children, J.R. and J.D.

We first address appellees’ contention that H.D. waived any challenge to the sufficiency of the evidence supporting termination by failing to move for a judgment of dismissal at the conclusion of DCF’s case. Appellees rely on Florida Rule of Juvenile Procedure 8.525(h) (2007), and J.D. v. Dep’t of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002).

Florida Rule of Juvenile Procedure 8.525(h) states:

Motion for Judgment of Dismissal. In all termination of parental rights proceedings, if at the close of the evidence for the petitioner the parents move for a judgment of dismissal and the court is of the opinion that the evidence is insufficient to sustain the grounds for termination alleged in the petition, it shall enter an order denying the termination and proceed with dispositional alternatives as provided by law.

Although H.D.’s counsel did argue the sufficiency of the evidence in her closing argument, she did not move for a judgment of dismissal pursuant to this rule. We reject appellees’ argument that H.D. has waived her sufficiency of the evidence argument on appeal because we conclude that rule 8.525(h) does not require a motion for judgment of dismissal in order to raise the sufficiency of the evidence on appellate review.

Under our rules of civil procedure, which we recognize do not apply in termination of parental rights cases, rule 1.420(b) authorizes a party to move for a dismissal after the evidence is presented in a case tried by the court; however, rule 1.530(e) provides:

When Motion Is Unnecessary; Non-Jury Case. When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

A motion directed to the sufficiency of the evidence in non-jury cases is not required because implicit in the judgment for the plaintiff is a ruling by the trial court that the evidence is sufficient. In this case, when the trial court found that the evidence was sufficient to terminate appellant’s parental rights, the court was ruling on the very issues which a motion for judgment of dismissal would have raised. Thus, when the sufficiency of the evidence is raised on appeal, we are not addressing an issue which was not considered by the trial court.

We do not agree with the holding in J.D. v. Department of Children & Families, which appears to be the only Florida case specifically addressing this subject. There, the father appealed from a final order terminating his parental rights, arguing that DCF failed to establish the requisite proof by clear and convincing evidence. The First District Court of Appeal declined to address the merits of the father’s appeal, concluding that he failed to preserve the issue for review by a motion for judgment of dismissal at the conclusion of DCF’s case. The court cited Florida Rule of Juvenile Procedure 8.525(h), which, as we explained above, does not appear to us to require a motion for judgment of dismissal to preserve the issue of sufficiency of the evidence for appellate review. We therefore certify conflict with the first district’s opinion in J.D. v. Department of Children & Families on this issue.

We now address the merits of appellant’s argument that there was no substantial competent evidence to support either of the trial court’s grounds for terminating appellant’s parental rights. After carefully reviewing the record and the trial court’s extensive findings in its order terminating parental rights, we conclude that competent substantial evidence supported the trial court’s determination that, despite the mother’s deep love and affection for her children, her lack of capacity to care for them and her prior conduct in refusing necessary services and programs and failing to,follow through on treatment for her special-needs children demonstrate that her continuing involvement in the parent-child relationship threatens the life, safety, or well-being of the children irrespective of the provision of services. See § 39.806(l)(c), Fla. Stat. (2006). The evidence further supports the trial court’s finding that the mother failed to substantially comply with the terms and conditions of her case plan as to J.R. See § 89.806(l)(e), Fla. Stat. (2006).

Appellant does not challenge the trial court’s determination that termination is in the manifest best interest of the children and that there were no less restrictive means of protecting the children. In any event, such findings by the trial court are supported by substantial competent evidence. Accordingly, we affirm the termination of the mother’s parental rights to J.R. and J.D.

Affirmed.

KLEIN, TAYLOR and HAZOURI, JJ., concur.

      . The mother is mildly retarded. J.R. was born prematurely and suffers from hydrocephalus. J.R. required multiple surgeries for the insertion of a shunt in his head to control the fluid,


text:
    Wana DENNARD, Appellant, v. CHARTER REALTY GROUP, Ada Pumerol, and Maria Stewart, Appellees.
    No. 3D06-2102.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Wana Dennard, in proper person.
    Wilson, Elser, Moskowitz, Edelman & Dicker LLP, James M. Kaplan, and Rachel M. LaMontagne, Miami, for appellees.
    Before GERSTEN, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. § 120.68(7)(b), Fla. Stat. (2005); Ferguson v. Miami-Dade County, 890 So.2d 450, (Fla. 3d DCA 2004) (holding that the court may not overturn the administrative law judge’s factual findings as long as they are supported by competent, substantial evidence).


text:
    Kevin RIVERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2353.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Kevin Rivero, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Kevin Rivero appeals from an order denying his petition for relief pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Rivero did not file his notice of appeal until September 19, 2006, which was beyond the thirty-day time limit for appeal. The defendant does not address the timeliness of the appeal but only the merits. Therefore, we dismiss the appeal without prejudice to the petitioner to seek a belated appeal of the order denying the 3.850 motion pursuant to Florida Rule of Appellate Procedure 9.141(c).


text:
    Juan CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1971.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Juan Cruz, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Vining v. State, 637 So.2d 921, 923-26 (Fla.1994); Gee v. State, 954 So.2d 83, 84 (Fla. 1st DCA 2007); State v. Garza, 807 So.2d 790, 792-93 (Fla. 2d DCA 2002).


text:
    Tommy SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3160.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Tommy Smith, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court’s order summarily denying Smith’s successive and untimely motion for post-conviction relief is affirmed. Affirmance is without prejudice to Smith’s right to file a separate civil suit seeking injunctive or declaratory relief based on his challenge to his designation as a sexual predator. Connor v. State, 773 So.2d 1242 (Fla. 4th DCA 2000).

We certify conflict with the Second District and the Fifth District on whether a motion for post-conviction relief is a proper vehicle for this challenge. Those two districts have found that rule 3.850 is available. See King v. State, 911 So.2d 229 (Fla. 2d DCA 2005), and Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003).

GUNTHER, STONE and KLEIN, JJ., concur.


text:
    Robert HAMPTON d/b/a Bob’s Auto Parts, Irwin R. Gilbert, Esquire and the Law Firm of Gilbert & Associates, P.A., d/b/a Gilbert & Associates, Appellants, v. CALE OF FORT MYERS, INC., d/b/a Kirby’s Auto Supply, Parts Depot Co., L.P., Parts Depot, Inc., Edward W. Hendricks, Espinosa Auto Parts, Inc. and John Espinosa, Appellees.
    No. 4D06-3762.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Irwin R. Gilbert of Gilbert, Eavenson & Kairalla, Palm Beach Gardens, for appellants.
    John R. Hamilton of Foley & Lardner, LLP, Orlando, and Thomas F. Munro, II of Foley & Lardner, LLP, Tampa, for appellees Congress Auto Parts and John Espinosa.
   KLEIN, J.

This is an appeal from an order, awarding attorney’s fees under section 57.105, Florida Statutes. We conclude that the trial court did not abuse its discretion in awarding fees, and hold .that a 2002 amendment to section 57.105, which requires twenty-one days’ notice to the non-moving party to withdraw a challenged claim or defense, is not retroactive.

Plaintiff Hampton d/b/a Bob’s Auto Parts (Hampton), filed this lawsuit alleging a conspiracy in restraint of trade in violation of antitrust laws. Hampton was operating a retail auto parts business, and the essence of his claim was that the wholesaler supplying him with his inventory was improperly coerced by two of Hampton’s competitors to stop doing business with Hampton, which drove Hampton out of business. Hampton claimed he was selling the retail merchandise for less than the other two retailers, and alleged that the retailers and the wholesaler entered into a common scheme which violated the antitrust laws.

Hampton’s claims were ultimately resolved in favor of all of the defendants by a summary judgment which was affirmed without opinion by this court. Hampton v. Cale of Ft. Myers, Inc., 903 So.2d 945 (Fla. 4th DCA 2005). Following that appeal the trial court awarded attorney’s fees under section 57.105 to Congress Auto Parts and its president Espinosa (hereafter Congress): The claim for fees had been pending in the trial court before the summary judgment, but was held in abeyance during the appeal.

We first address whether the court abused its discretion in awarding fees under section 57.105, which provides:

(1) Upon the court’s initiative or motion ' of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

Plaintiff characterizes his claim as an antitrust conspiracy under federal and state law. In Parts Depot Co. v. Florida Auto Supply, Inc., 669 So.2d 321 (Fla. 4th DCA 1996), we found evidence of such a conspiracy insufficient, because it was merely to the effect that retailers had complained to the wholesaler about the price cutter. Citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), we explained that an unlawful agreement cannot be inferred solely from the existence of complaints or even from a termination of a jobber in response to those complaints. It is common for jobbers to complain about price-cutters.

“There must be evidence that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently ... the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.”

Monsanto, 465 U.S. at 764, 104 S.Ct. 1464.

This lawsuit was filed in May of 2000, and after some discovery was taken, Congress sent plaintiff a letter on August 7, 2001, threatening to seek section 57.105 attorney’s fees if the case against Congress were not dismissed. Additional discovery depositions were not taken after that letter until March, 2003, and the trial court granted defendant’s motion for summary judgment in April, 2004.

Considering that our standard of review is abuse of discretion, Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006), and the high level of proof required to establish this type of claim, we cannot find that the trial court abused its discretion in awarding attorney’s fees from the date of defense counsel’s letter in August, 2001. At that point the evidence of any conspiracy was speculative as to all defendants and particularly lacking as to Congress.

We next address plaintiffs’ argument that an amendment to section 57.105, which became effective July 1, 2002, is applicable. That amendment, section 57.105(4), provides:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Plaintiffs argue that this amendment is procedural and therefore retroactive, citing our decision in Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709 (Fla. 4th DCA 2004). In Maxwell, as plaintiffs recognize in their brief, this court did not have to decide whether the twenty-one day safe harbor amendment was retroactive, because the motion for section 57.105 fees had been filed in October, 2002, after the effective date of the statute. We concluded in Maxwell that the primary purpose of the safe harbor provision had been served, in that the plaintiffs had well more than twenty-one days to withdraw their claims.

After our decision in Maxwell, the first district decided the retroactivity of the safe harbor amendment in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So.2d 66 (Fla. 1st DCA 2006). In explaining why the safe harbor amendment was substantive, the first district explained:

As a general rule, procedural changes in the law are applied retroactively, while substantive changes are applied prospectively only. See Environmental Confederation of Southwest Florida, Inc. v. State, 886 So.2d 1013, 1017 (Fla. 1st DCA 2004) (explaining that in the absence of clear legislative intent otherwise, the general rule is that procedural statutes apply retroactively while substantive statutes apply prospectively). The supreme court has held that “rights to attorney’s fees granted by statute are substantive rather than procedural.” Moser v. Barron Chase Sec., Inc., 783 So.2d 231, 236 (Fla.2001), citing with approval, U.S. Sec. Ins. Co. v. Cahuasqui, 760 So.2d 1101, 1107 (Fla. 3d DCA 2000); see also Timmons v. Combs, 608 So.2d 1, 2-3 (Fla.l992)(“it is clear that the circumstances under which a party is entitled to costs and attorney’s fees is substantive”), and Leapai v. Milton, 595 So.2d 12 (Fla.1992).
The Fifth District has held that the broad changes made in 1999 to section 57.105 do not have retroactive effect. See Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So.2d 1232, 1233 (Fla. 5th DCA 2003)(“We have held recently that the 1999 version of section 57.105 applies to actions taken, positions maintained or papers filed subsequent to October 1, 1999,” the effective date of the statute); Mullins v. Kennedy, 847 So.2d 1151 (Fla. 5th DCA 2003). The Third District has held similarly. See Bisson v. Arellano, 844 So.2d 648 (Fla. 3d DCA 2003).

Walker, 946 So.2d at 71.

The Walker court also pointed out that in Maxwell this court described the amendment as a “procedural change” to the statute. Hampton argues that because we referred to the amendment as “procedural,” it follows that it would apply retroactively. Young v, Altenhaus, 472 So.2d 1152 (Fla.1985) (statutes relating only to procedure are generally retroactive). We disagree with Hampton for two reasons.

First, as we noted earlier, in Maxwell we did not decide the issue before us in this case, which is whether the twenty-one day safe harbor was retroactive. We applied the amendment in Maxwell because the motion for section 57.105 fees had been filed after the effective date of the statute. Second, statutes which affect substantive rights can also have procedural aspects to them. Smith v. Dep’t of Ins., 507 So.2d 1080, 1092 (Fla.1987) (“The legislature, which has the authority to abolish punitive damages can surely set the standard for establishing such claims. The Court is of the view that both sections create substantive rights and further that any procedural provisions of these sections are intimately related to the definition of those substantive rights.”). As in Smith, the amendment in this case has procedural aspects, but affects substantive rights, and cannot be retroactive.

Nor are we particularly sympathetic to Hampton’s argument that he should have had the twenty-one day notice required by the amendment. As we indicated earlier, Hampton was in fact put on notice by the letter Congress wrote him on August 7, 2001, informing him Congress would seek section 57.105 fees if the case against Congress were not dismissed. Hampton thus had far more than the twenty-one days the amendment provides to avoid these fees.

Affirmed.

HAZOURI, J., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Bruce STEIN, Appellant, v. David HOWELL, Appellee.
    No. 4D06-3586.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 17, 2007.

      Scott C. Cochran and Jeffrey S. Wood of May, Meacham & Davell, P.A., Fort Laud-erdale, for appellant.
    Joshua M. Atlas and Stuart H. Sakwa of Moore & Lee, LLP., Fort Lauderdale, for appellee.
   FARMER, J.

We reverse the trial court’s judgment in favor of the seller in this action to recover an earnest money deposit under a contract for the sale of commercial realty. We conclude that the trial court erred in its reading of the contract.

Allan Kern entered into a contract to purchase commercial property from seller. Paragraph 9 of the original contract provided: “in the event any condition [e.s.] of this Contract is not met ... Buyer’s deposit will be returned in accordance with applicable Florida laws and regulations.” Later Kern assigned his contract rights as buyer to appellant (buyer). Buyer and seller then modified the contract with the First Addendum, providing that the parties would share evenly the cost of an environmental study. Two weeks later, they again modified the contract. The Second Addendum stated the following provisions:

1) The following Second Addendum is hereby made a part of and is specifically incorporated into the ... contract.
2) The closing is contingent upon a clear Phase I Environmental study.
3) The closing is contingent upon the Seller conveying marketable title to the Buyer.
4) The closing is contingent upon the Seller providing tenant estoppel letters to the Buyer.
5) In the event the closing does not occur before May 1, 2005, the parties herein agree that the $20,000 deposit shall be paid directly to the Seller in liquidated damages, and the parties shall be further relieved of any and all duties and liabilities under, the contract and addendums thereto and the contract shall be terminated.
6) In the event the closing does not occur before May 1, 2005, due to the Seller’s failure to perform its duties and responsibilities under the contract and addendums thereto, the buyer shall be refunded his $20,000 deposit forthwith, and the parties shall be further relieved of any and all duties and liabilities under the contract and addendums thereto and the contract shall be terminated, [e.s.]

The Second Addendum goes on to provide that any conflicts between it and the contract are governed by the Second Addendum. The completed environmental study ultimately revealed petroleum contamination.

We reject Seller’s trial court argument — repeated on appeal — that the Second Addendum completely eliminated the general default provision in paragraph 9 of the original contract. As the first paragraph of the Second Addendum makes clear, its provisions are incorporated into and made a part of the original contract, not a substitution for it. The Second Addendum does not provide that paragraph 9 is deleted and replaced by its provisions. A clear environmental study is a condition of the contract as amended by the Second Addendum. The existence of a clear environmental study was thus made a condition — a prerequisite — to the seller’s right to a closing and, thereby, any right to keep the deposit if Buyer failed to close in spite of it.

Seller argues that under the Second Addendum he had only two “affirmative” obligations before closing: marketable title and estoppel letters. The condition requiring a clear environmental study, he contends, is not an “affirmative” condition requiring him to do anything; his only obligation concerning the environmental study was to bear half its costs, which he did. He had no control, he says, over the outcome of the study. Seller contends that the Second Addendum thus gave the buyer the right not to close if the environmental study was not clear but only at the cost of forfeiting the deposit.

We disagree. Seller’s problem is that the contract nonetheless required as a condition of his right to go forward with closing that the property be reported as environmentally “clear.” The plain meaning of this term is that the property not be environmentally contaminated. This is not unlike the companion requirement that title be “marketable” by which it is meant that title be “clear.” Even though Seller may have conceivably been able to clear up a particular title problem affecting marketability but not to remove certain environmental contamination, nevertheless both were conditions Seller must show had been satisfied before he can fault buyer for refusing to close on a purchase of uncontaminated property.

Buyer is entitled to recover the deposit and his fees incurred in the effort.

Reversed.

GUNTHER and MAY, JJ., concur.

      . Except for the ordinary and usual exceptions common to property of its kind and location.


author: SHAHOOD, C.J.

text:
    FRIENDS OF the GREAT SOUTHERN, INC., William R. Young, Richard Vest, Sara Case, Linda Wilson, Alysa Plummer and John Hayes, Appellants, v. CITY OF HOLLYWOOD by and through its CITY COMMISSION, a Florida Municipality, and SFD@ Hollywood, LLC, Appellees.
    No. 4D06-3365.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Ralf G. Brookes, Cape Coral, for appellants.
    Jack J. Aiello and William S. Spencer of Gunster Yoakley, Kevin N. Markow and Daniel L. Wallach of Becker & Poliakoff, P.A., Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, and Robert M. 01-dershaw, Hollywood City Attorney, Hollywood, for appellees.
   SHAHOOD, C.J.

Friends of the Great Southern, Inc., William R. Young, Richard Vest, Sara Case, Linda Wilson, Alysa Plummer and John Hayes (collectively “Friends”), appeal an order of final judgment holding that section 5.6.F.5.d of the City of Hollywood Land Development Code is constitutional. We affirm.

The City Commission of Hollywood, Florida, approved, pursuant to Code section 5.6.F.5.d, a Certificate of Appropriateness for the partial demolition of the Great Southern Hotel, a contributing structure in the Historic Hollywood Business District, and the proposed construction of a nineteen-story condominium, retail, and parking garage complex known as Young Circle Commons.

Friends sought declaratory judgment to determine (a) whether the criteria in section 5.6.F.5.d(l)-(8) are unconstitutionally vague because they do not contain sufficiently objective criteria and vest, unbridled discretion in the City Commission, and (b) whether the City Commission properly applied section 5.6.F.5.d(l)-(8). Motions for summary judgment were filed by each side.

A hearing was held and the lower court granted the City’s motion for summary judgment. The trial court issued a final judgment holding section 5.6.F.5.d to be constitutional.

Section 5.6.F.5.d. of the City of Hollywood Land Development Code provides:

d. Evaluation criteria. The City Commission and the Board shall consider the following criteria in evaluating applications for a Certificate of Appropriateness for Demolition of buildings, structures, improvements or sites.
(1) The building, structure, improvement, or site is designated on either a national, state, or local level as an historic preservation district or an architectural landmark or site.
(2) The building, structure, improvement, or site is of such design, craftsmanship, or material that it could be reproduced only with great difficulty and/or expense.
(3) The building, structure, improvement, or site is one of the last remaining examples of its kind in the neighborhood, the county, or the region.
(4) The building, structure, improvement, or site contributes significantly to the historic character of a historically designated district.
(5) Retention of the building, structure, improvement, or site promotes the general welfare of the city by providing an opportunity for study of local history, architecture, and design or by developing an understanding of the importance and value of a particular culture and heritage.
(6) There are definite plans for reuse of the property if the proposed demolition is carried out, and those plans will adversely affect on [sic] the historic character of the Historic District.
(7) The Unsafe Structures Board has ordered the demolition of a structure or the feasibility study determines that the retention of the building would deny the owner of all economically viable uses of the property.
(8) The information listed in the Historic Properties Database (a listing of historic and non-historic properties) has been considered as a guideline in determining whether a Certification of Appropriateness for Demolition should be issued.

“[A] defendant who challenges the constitutional validity of a statute bears a heavy burden of establishing its invalidity.” Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999)(citing Milliken v. State, 131 So.2d 889 (Fla.1961)). Friends argues that section 5.6.F.5.d. improperly vests unbridled discretion in the City Commission to approve or deny an application for certificate of appropriateness for demolition of a historic structure because the code lacks sufficient standards and criteria.

In order for ordinances which provide decisional authority to be constitutional, they must have mandatory objective criteria to be followed when making a decision. See, e.g., Miami-Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767, 769 (Fla. 3d DCA 2002), decision quashed on other grounds, 863 So.2d 195 (Fla.2003) (holding that provision of Miami-Dade County Code on unusual uses was legally deficient because it lacked objective criteria for the County’s zoning boards to use in their decision-making process); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1104 (Fla. 3d DCA 1983) (“[I]f definite standards are not included in the ordinance, it must be deemed unconstitutional as an invalid delegation of legislative power to an administrative board.”); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.”); N. Bay Village v. Blackwell, 88 So.2d 524, 526 (Fla.1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.”).

Objective criteria are necessary so that:

1. persons are able to determine their rights and duties;
2. the decisions recognizing such rights will not be left to arbitrary administrative determination;
3. all applicants will be treated equally; and
4. meaningful judicial review is available.

Miami-Dade County, 811 So.2d at 769 n. 5.

Section 5.6.F.5.d provides eight objective criteria to follow, as evidenced by the Commission’s fifteen-page summary report detailing their findings as to the eight criteria. The criteria need not be intricately detailed. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden, 562 So.2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines ..., that level of specificity is neither required nor workable.”). All that is required is that the criteria do not permit the decision makers to “act upon whim, caprice or in response to pressures which do not permit ascertainment or correction.” Nostimo, Inc. v. City of Clearwater, 594 So.2d 779, 781 (Fla. 2d DCA 1992) (quoting Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA 1983)). The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards.” Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978).

Friends specifically argue that the code fails constitutionally where it provides that “The City Commission and the Board shall consider the following criteria.” Friends highlight that the commission only has to “consider” the criteria, that there is no clear direction as to whether one or all of the criteria must be met, and that there is no indication whether or not one or more factors can simply be considered and then disregarded.

The Code’s language of shall consider is not discretionary. In City of Miami, the court found error in language in an ordinance providing that the City Commission, in deciding whether to approve a planned area development project, “may include but are not limited to” certain criteria. 426 So.2d at 1105. The court found the language to be permissive rather than a mandatory connotation such as “shall.” Id. The court explained that “an ordinance which permits a legislative agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria” is not constitutional. Id. Similarly, in Effie, Inc. v. City of Ocala, 438 So.2d 506 (Fla. 5th DCA 1983), the ordinance in question required counsel to “take into account” certain enumerated criteria. This ordinance allows council to consider “all other pertinent factors that may arise in connection with the particular application and location being considered.” Id. at 507. The court in Effie found that provision to be patently vague and obscure. Id. at 509.

Unlike the codes in City of Miami and Effie, section 5.6.F.5.d uses mandatory language and does not allow the commissioners to consider factors outside the criteria provided. The criteria of section 5.6.F.5.d are also objective and sufficiently detailed, elements which are necessary to uphold its constitutionality.

Affirmed.

GROSS and MAY, JJ., concur.


text:
    M.A., Petitioner, v. STATE of Florida and Ric Bradshaw, Sheriff Palm Beach County, Respondents.
    No. 4D07-2888.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Carey Haughwout, Public Defender, Daniel Cohen and Deneka Cummings-Gar-eia, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   Corrected Opinion

PER CURIAM.

We thank defense counsel for his notice of factual errors, grant the trial court’s request for a corrected opinion, withdraw the previous opinion and substitute this corrected opinion.

M.A. petitions for a writ of habeas corpus regarding his adjudication for indirect contempt of court. He asks us to quash an order of home detention requiring him to wear an electronic monitor. We grant the petition.

He was on probation when he was found guilty of loitering and prowling with disposition set to follow. Before the disposition hearing, his counsel moved for a competency hearing after a psychiatric evaluation had been performed on him. At the disposition hearing, the court granted the motion for a competency evaluation. An arraignment hearing on the VOP was set for a few days later. At that arraignment, the court recognized that a pending competency evaluation requires that proceedings be stayed under section 985.19, but found that it was authorized to enforce conditions of release. The trial court also proceeded to arraign him on the VOP charges over his objection. On the following day the court adjudicated him in indirect contempt of court for failing to abide by his probation rules. The court sentenced him to five days detention, permitting his temporary release upon obtaining an appointment with a neurologist and to return after the appointment to fulfill the remainder of the five days detention. Upon release, he was placed on home detention and required to wear an electronic monitoring ankle bracelet.

The court erred in proceeding with the VOP arraignment after it had previously granted the motion for a competency evaluation. M.A.’s counsel, his probation officer, and the court all noted that there was reason to believe that he may be incompetent. When the court has reason to believe that the child in a delinquency case may be incompetent to proceed, “the court ... must stay all proceedings and order an evaluation of the child’s mental condition.” [e.s.] § 985.19(1), Fla. Stat. (2007). Rule 8.095(a)(2) adds that:

If at any time prior to or during the adjudicatory hearing or hearing on a violation of juvenile probation the court has reasonable grounds to believe the child named in the petition may be incompetent to proceed with an adjudicatory hearing, the court on its own motion or motion of counsel for the child or the state shall immediately stay the proceedings and fix a time for a hearing for the determination of the child’s mental condition, [e.s.]

Rule 8.095(a)(2), Fla. R. Juv. P. (2007).

We agree that in spite of a pending competency evaluation a child may nevertheless be placed in secure detention before disposition of the new VOP charge when it appears that the child may be violating pre-existing conditions of release. See, e.g., J.W. v. Dept. of Juvenile Justice, 742 So.2d 320, 321 (Fla. 1st DCA 1999) (child has committed serious felonies and is extreme risk to others). Here the court stated no written reasons; nor does the record show any particular type of serious danger to others. In fact, the Probation Officer recommended probation for the disposition on the VOP charge, not detention, and the State Attorney joined in the recommendation. We also note that if the trial court determines that a competency evaluation should be done immediately because the child is a danger to himself or others, the trial court could consider proceeding under the Baker Act.

The lower court erred in failing to follow section 985.19 and rule 8.095 by staying proceedings on the VOP charge pending a competency evaluation.

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


author: NORTHCUTT, Chief Judge.

text:
    Awilda RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D05-1929, 2D05-3481.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      James Marion Moorman, Public Defender, and Douglas A. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

A jury convicted Awilda Rodriguez of battery on a law enforcement officer and resisting an officer with violence, charges that arose from a tragic encounter with a Manatee County Sheriffs deputy who was attempting to arrest Mrs. Rodriguez’s husband. She appeals her convictions and an order requiring her to pay costs in case number 2D05-1929; in the consolidated case, 2D05-3481, she challenges the restitution imposed. We reverse on all points.

According to the State’s evidence at trial, the incident began with a dispute in a convenience store parking lot involving a store patron’s accusation that Mr. Rodriguez had bumped her car with a shopping cart. The convenience store manager, who knew Mr. Rodriguez as a regular customer, had suggested that he leave. Mr. Rodriguez did so. A sheriffs deputy observed the commotion from another convenience store across the street. A bystander told the deputy that Mr. Rodriguez had been involved in a collision with another car and was leaving the scene. The deputy followed in his patrol car as Mr. Rodriguez drove home. He watched Mr. Rodriguez drive through the gate of his fenced yard and saw Mrs. Rodriguez closing the gate.

The deputy got out of his car and attempted to engage Mr. Rodriguez in a conversation. But Mr. Rodriguez, in a profane way, told the deputy to leave him alone, and he began walking away, toward his home. The deputy decided to arrest Mr. Rodriguez for obstructing his investigation of the hit-and-run accident. By this time, Mrs. Rodriguez was attempting to lock the gate with a chain. The deputy grabbed the chain from her hands, threw it on the ground, and pushed through the gate. As he entered the curtilage of the Rodriguezes’ property, he felt a shove.

He caught up with Mr. Rodriguez near the front door of the house and took hold of him. As Mr. Rodriguez struggled to escape, Mrs. Rodriguez joined the fray and began striking the deputy. He attempted to stop her attack by using pepper spray. Meanwhile, Mr. Rodriguez broke free and ran into the house. The deputy pursued him inside. At this point, events took a devastating turn. When the deputy entered the house, Mr. Rodriguez attacked him with an axe. The deputy shot Mr. Rodriguez three times, killing him. Mrs. Rodriguez ran inside and began pummeling the deputy. Other law enforcement officers arrived, and one of them arrested Mrs. Rodriguez.

THE CONVICTIONS

Mrs. Rodriguez’s trial was held in January 2005. She was convicted of resisting an officer with violence, § 843.01, Fla. Stat. (2003), for her attack on the deputy when he was attempting to detain her husband; and battery on a law enforcement officer, § 784.07, Fla. Stat. (2003), for shoving the deputy as he entered the yard, or for the incident that also resulted in the charge for resisting an officer. See State v. Henriquez, 485 So.2d 414, 415-16 (Fla. 1986). An element of both crimes is that the law enforcement officer must be lawfully executing a legal duty when the obstruction or the battery takes place. § 843.01 (requiring that the officer be “in the lawful execution of any legal duty”); § 784.07(2) (specifying that the officer be “engaged in the lawful performance of his or her duties”).

At the time of Mrs. Rodriguez’s trial, however, this district’s case law essentially made the issue of whether the officer was engaged in the lawful performance of a legal duty irrelevant if the accused had used violence when battering or opposing the officer. The Second District had broadly applied section 776.051(1), Florida Statutes, which precludes the defense of justifiable use of force when resisting an arrest regardless of the legality of the arrest, to encounters between citizens and the police that did not involve arrests. See Lang v. State, 826 So.2d 433, 435 (Fla. 2d DCA 2002); Nesmith v. State, 616 So.2d 170, 171-72 (Fla. 2d DCA 1993); cf. Kaigler v. State, 913 So.2d 1254, 1255 (Fla. 2d DCA 2005) (answering in the negative the question of “whether the illegality of a stop during which a suspect allegedly commits resisting with violence and battery of a law enforcement officer causes a failure of the [lawful execution] elements” of sections 784.07(2) and 843.01), quashed, 944 So.2d 340 (Fla.2006), opinion on remand, 947 So.2d 671 (Fla. 2d DCA 2007). But after Mrs. Rodriguez’s conviction and the commencement of this appeal, the Florida Supreme Court rejected the proposition that section 776.051(1) extended beyond an arrest situation to other types of police-citizen encounters. Tillman v. State, 934 So.2d 1263, 1266 (Fla. 2006). Noting that the legislature had placed the element of lawful execution of a legal duty in both section 784.07(2) and 843.01, the court explained that in prosecutions under either statute for crimes committed outside an arrest situation, the State must prove that the officer was acting lawfully. Id. at 1270.

In this case it was undisputed that Mrs. Rodriguez committed her violent acts prior to her arrest, not in connection with the arrest. Therefore, Tillman’s clarification of the law applies to this pending case. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (holding that any decision of the Florida Supreme Court “announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final”); see also J.H.M. v. State, 945 So.2d 642, 644 (Fla. 2d DCA 2006) (applying Tillman to a pending case); Yarusso v. State, 942 So.2d 939, 942 (Fla. 2d DCA 2006) (same); State v. Roy, 944 So.2d 403, 406 (Fla. 3d DCA 2006) (same). Accordingly, we must determine whether the State’s evidence against Mrs. Rodriguez proved that the deputy was lawfully executing a legal duty at the time of their encounter.

Tillman instructs that when determining whether the evidence proved the “lawful execution” elements of sections 784.07(2) and 843.01, we must apply the “legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” 934 So.2d at 1271; see also Yarusso, 942 So.2d at 942. Therefore, in this case we scrutinize the law governing a police officer’s entry into a citizen’s residence or onto its curtilage to effect an arrest.

If a law enforcement officer does not have consent, a search warrant, or an arrest warrant, he may not enter a private home or its curtilage except when it is justified by exigent circumstances. Tillman, 934 So.2d at 1272; see also State v. Rickard, 420 So.2d 303, 306 (Fla.1982) (stating that a warrantless search or seizure may not be conducted in a protected area such as a backyard); Glass v. State, 736 So.2d 788, 789 (Fla. 2d DCA 1999). The exigent circumstances exceptions are “few in number and carefully delineated,” and they include pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, and fighting fires. Riggs v. State, 918 So.2d 274, 279 (Fla.2005) (internal citations omitted).

None of these limited exceptions applied in this case. Granted, the deputy entered the Rodriguez property in pursuit of Mr. Rodriguez. But Mr. Rodriguez was not a fleeing felon, nor could the deputy have believed that he was. Rather, the deputy thought that Mr. Rodriguez had left the scene of a motor vehicle accident. Even if this had been true, and even if the supposed accident had caused damage to a vehicle or property, Mr. Rodriguez’s illegal flight from the scene would have been punishable only as a misdemeanor. See § 316.061, Fla. Stat. (2003).

Neither was the deputy’s entry onto the property justified by his intention to arrest Mr. Rodriguez for obstructing the accident investigation. The deputy testified that he had “walked to the gate and greeted both subjects and asked them ... just asked them or attempted to talk to them to ask them what was going on.” In response, Mr. Rodriguez told the deputy to get off his property and began walking toward the house. At that point, Mr. Rodriguez had not committed an obstruction because the deputy had only attempted to engage him in a consensual citizen encounter. Mr. Rodriguez was under no obligation to remain and talk unless or until the deputy communicated an intention to detain him. See Yarusso, 942 So.2d at 943. But even if the deputy had done so, the offense of obstructing an officer in the performance of his legal duty is only a misdemeanor. See § 843.02.

In Johnson v. State, 395 So.2d 594, 596 (Fla. 2d DCA 1981), we held that law enforcement has no authority to enter a building to make a warrantless arrest for a misdemeanor, especially when the building to be entered is a person’s home. Thus, even assuming Mr. Rodriguez committed a misdemeanor in the deputy’s presence by refusing to cooperate with his investigation, the deputy could not legally enter his home to arrest him for that crime. As was the case in Tillman, the deputy here was unlawfully inside the Rodriguezes’ fenced yard and residence when he scuffled with Mrs. Rodriguez. See Tillman, 934 So.2d at 1272 (“The zone of protection under the Fourth Amendment extends to the curti-lage of a home, which includes a fenced or enclosed area encompassing the dwelling.”).

As we have seen, the State’s evidence did not merely fail to prove that the deputy was engaged in the lawful performance of a legal duty; it affirmatively proved the contrary. Because the State’s proof did not establish the crimes for which Mrs. Rodriguez was convicted, we must reverse her convictions. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003). While the evidence did not prove that there was an unlawful battery on a law enforcement officer under section 784.07, it did establish the lesser included crime of simple battery under section 784.03(1). Therefore, we remand with directions to the circuit court to adjudicate Mrs. Rodriguez guilty of that crime, a first-degree misdemeanor. Cf. Roy, 944 So.2d at 406-07. Concerning the charge of obstructing a law enforcement officer with violence, the evidence failed to prove either that crime or its lesser included offense, obstructing an officer without violence pursuant to section 843.02. On remand the circuit court shall enter a judgment of acquittal of that charge.

THE RESTITUTION ORDER

The court ordered Mrs. Rodriguez to pay $29,341.56 in restitution for the injuries the deputy suffered as a result of her husband’s axe attack. At the hearing, defense counsel argued that the court did not have jurisdiction to impose restitution because Mrs. Rodriguez had filed an appeal of her convictions. Alternatively, counsel asserted that the State had not shown the necessary nexus between Mrs. Rodriguez’s crimes and the deputy’s injuries. No evidence was presented, but the court ordered restitution in the amount of the deputy’s insurer’s claim.

As Mrs. Rodriguez maintained, the circuit court lost jurisdiction to enter the restitution order when she filed her notice of appeal. See Fuller v. State, 786 So.2d 1269, 1269 (Fla. 2d DCA 2001); see also Marro v. State, 803 So.2d 906, 907 (Fla. 4th DCA 2002). Accordingly, we reverse the order.

Generally, when we strike an order of restitution the trial court may hold a new hearing on remand to determine the proper amount of restitution and enter a new order. See Fuller, 786 So.2d at 1269; see also Marro, 803 So.2d at 907. Of course, the court may do so in this case. But we note that our reversal of Mrs. Rodriguez’s conviction for obstructing a law enforcement officer will change the complexion of the hearing, particularly as it relates to the expenses associated with the injuries Mr. Rodriguez inflicted on the deputy. In the initial hearing the State posited that Mrs. Rodriguez’s interference with the deputy’s effort to detain her husband allowed Mr. Rodriguez to escape, to obtain the axe, and to wound the deputy. Thus, the State maintained that Mrs. Rodriguez’s obstruction offense had a significant relationship with the deputy’s injuries and restitution for the cost of his medical treatment was proper under section 775.089(l)(a)(l), Florida Statutes (2003) (stating that restitution shall be ordered for the victim’s “[d]amage or loss caused directly or indirectly by the defendant’s offense”).

Whether Mrs. Rodriguez’s obstruction of the deputy had a significant relationship to the deputy’s injuries is debatable under the test articulated in Schuette v. State, 822 So.2d 1275, 1282 (Fla.2002) (equating the significant relationship test with the requirement of proximate causation between the criminal act and the resulting damages, and noting that both a “but for” causation requirement and a significant relationship requirement are included in the analysis). But we need not reach that issue because we have reversed her conviction for obstruction. While we have directed the court to enter a judgment for simple battery, any restitution must be limited to damages caused directly or indirectly by that crime.

THE ORDER ON COSTS

We also reverse the order imposing costs on Mrs. Rodriguez. A significant portion of the costs were assessed because she was found guilty of felonies. Owing to our reversal of the felony convictions, some of those costs may not apply. We also note that the form costs order employed by the circuit court does not contain any citations to statutory authorities for the costs imposed. On remand, the circuit court shall revisit the imposition of costs in light of this decision. Any cost imposed shall be supported by a citation to the statute authorizing it either orally or in the written costs order. See Miller v. State, 912 So.2d 1282, 1283 (Fla. 2d DCA 2005).

Mrs. Rodriguez raised a number of issues concerning the original costs assessment in a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), but the circuit court denied the motion. Because we are reversing the order for other reasons, we do not address the various contentions made in her motion. Mrs. Rodriguez is free to argue any of them, if applicable, on remand.

CONCLUSION

We reverse Mrs. Rodriguez’s conviction for battery on a law enforcement officer and remand to the circuit court to enter a conviction for the lesser included offense of battery under section 784.03(1). We reverse Mrs. Rodriguez’s conviction for obstructing a law enforcement officer with violence and direct the circuit court to enter a judgment of acquittal on that charge. We reverse both the restitution order and the order imposing costs and remand with directions to conduct new hearings on those matters in light of this decision.

SILBERMAN and LaROSE, JJ„ Concur.

      . Mrs. Rodriguez concedes that her trial counsel did not move for a judgment of acquittal on this basis. It is, however, fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime. F.B. v. State., 852 So.2d 226, 230-31 (Fla.2003) (stating that when the evidence is totally insufficient as a matter of law to establish the commission of a crime, that argument need not be preserved. “Such complete failure of the evidence meets the requirements of fundamental error .... ”); see also Kirschner v. State, 915 So.2d 624, 625 (Fla. 2d DCA 2005); M.C.M. v. State, 754 So.2d 844, 845 (Fla. 2d DCA 2000); Hornsby v. State, 680 So.2d 598, 598 (Fla. 2d DCA 1996). While Smith, 598 So.2d at 1066, dictates that a defendant “must have timely objected at trial if an objection was required to preserve the issue for appellate review,’’ such an objection is unnecessary if the error was fundamental. Cf. Leveritt v. State, 896 So.2d 704, 705 n. 2 (Fla.2005) (remanding for a determination of whether fundamental error existed, but implying that if the error were fundamental, Smith would require that the change in the law be applied to the pending case).