author: LAGOA, Judge.

text:
    Mark WALLACE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1158.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Rehearing Denied Oct. 17, 2006.

      Bennett H. Brummer, Public Defender, and Lisa S. Walsh, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Mark Wallace,(hereinafter “Defendant”), appeals the trial court’s denial of his post-sentencing motion to withdraw his plea, arguing that the trial court erred by not holding an evidentiary hearing on the issue. Because we conclude that the trial court did not err in summarily denying Defendant’s post-sentence motion to withdraw his plea, we affirm.

The standard of review for a trial court’s denial of a motion to withdraw a plea is abuse of discretion. See Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006)(denial of motion to withdraw guilty plea without evidentiary hearing not abuse of discretion). If the motion to withdraw a plea occurs, as is the case here, after sentencing, the defendant has the burden of proving that a “manifest injustice has occurred.” Id.

On February 24, 2005, Defendant filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(i). In his motion, Defendant alleged that defense counsel failed to convey a favorable plea offer to him and that he entered into the plea under duress. In a supplemental motion, Defendant argued that defense counsel coerced him into entering into the plea. The trial court denied the motion without holding an eviden-tiary hearing.

On appeal, Defendant argues that he is entitled to an evidentiary hearing because the record does not refute his allegation of ineffective assistance of counsel. We respectfully disagree with Defendant’s contention, as his allegations are conclusively refuted by the record and he cannot show that a manifest injustice has occurred.

The facts of this case are similar to Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006). In Williams, the defendant filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(i), asserting that his defense counsel coerced him into entering into the plea. Id. at 646. The trial court denied the motion without holding an evidentiary hearing and the Fourth District affirmed “[bjecause [defendant’s] motion to withdraw [his] plea made no factual allegations of ‘coercion’ that were not completely refuted by the sworn plea colloquy.” Id. Specifically, at the plea colloquy the defendant stated that he had not been forced, threatened or coerced into making an open plea in court. Moreover, the defendant acknowledged signing “two forms stating that he had not been coerced into relinquishing his rights by entering a plea ... [and][w]hen asked whether he was satisfied with his attorney’s services, Williams said ‘yes’.” Id. As the Williams court observed, “[w]here the coercion alleged is legally insufficient or conclusively refuted by the record, there is no need to hold an evidentiary hearing or appoint conflict-free counsel.” Id.

In this case, Defendant’s allegations of coercion or ineffective assistance of counsel are conclusively refuted by the record. First, Defendant, in his motion, admits that he was aware of the first plea offer but that he rejected it. While out on bond, however, Defendant committed two additional felonies and was placed in custody. In his motion, Defendant admits being advised by his counsel that the State was now offering a less favorable plea — “a plea of 20 with a mandatory 15 years in prison” — and that he “agreed with counsel that such [a] plea was unacceptable.” The record is therefore clear that Defendant was aware of and rejected the State’s plea offers.

Second, as in Williams, the trial court’s inquiry prior to accepting the Defendant’s plea conclusively shows that the Defendant is not entitled to the relief sought.

THE COURT: Has anyone threatened you or coerced you into entering into this plea?
THE DEFENDANT: No.
THE COURT: Are you presently under the influence of drugs or alcohol?
THE DEFENDANT: No.
THE COURT: Sir, you were given a rights waiver form, did you read it, understand it an [sic] sign it?
THE DEFENDANT: Yes, I did.
THE COURT: Do you have any questions about it?
THE DEFENDANT: No.
THE COURT: You are also represented by an attorney, have you discussed this plea with your lawyer, have you had sufficient time to do that?
THE DEFENDANT: Yes.
THE COURT: And you understand— has your lawyer done everything that you asked him to do, has he filed all motions, taken all depositions or investigated every single aspect of this case?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with his services?
THE DEFENDANT: Yes.

Thus, during the plea colloquy, Defendant stated that no one threatened or coerced him into making the plea, that he was satisfied with his attorney’s services, and acknowledged signing a written plea of guilty waiver form.

Third, the written plea also refutes Defendant’s allegations. That document, signed by both the Defendant and his counsel, contains the following pertinent language:

This plea is in my own best interest.... I am not under the influence of any alcohol or drugs at this time, nor am I presently suffering from any mental defect. I fully understand the Judge’s instructions, this document ... all the legal proceedings herein, and all of my rights under the law. No one, including my attorney or the Judge, has made any promises, threats, or representations to me to induce me to enter this plea. Further, no promises or representations were made to me apart from those discussed during the plea colloquy, nor has anyone, especially my attorney, made any promises to me concerning my eligibility for any form of early release authorized by law and the actual amount of time I will serve under the sentence that the court will impose.... I further understand that I am waiving any right that I may have to withdraw this plea and that my plea of guilty or no contest to the charge(s) are final and may not be withdrawn without the consent of the court.... I am mentally alert and am entering this plea knowingly, intelligently and voluntarily. I understand I have the right to speak to the Judge concerning the sentence before sentencing, and to appeal in writing within thirty (30) days.... I have read, understand, and agree with all the contents, terms and conditions on both sides of this form, including that portion entitled “Satisfaction with Attorney.”

The written plea also contained a separate section signed by Defendant entitled “Satisfaction with Attorney” that stated:

I am voluntarily entering this plea after having had adequate, complete, and full consultation with my attorney. My counsel has done everything that I have asked him/her to do on my behalf and has filed with the court all pleadings, motions and documents that I wanted him/her to file. My counsel has spoken to and discussed my case with all the witnesses and prospective witnesses that I requested that he/she talk to, and has discussed my case with me fully and completely. My attorney, among other things, has fully discussed the strengths and weaknesses of my case and the State of Florida’s case, as well as any defenses I may have to the charge(s) against me. Further, my attorney has raised all the objections and defenses that I wanted to be raised with the prosecutor and/or the court. My attorney has been competent, professional, and effective throughout his/her representation of me. I am completely satisfied with the representation that my attorney has afforded me.

Because the allegations of coercion and ineffective assistance of counsel are conclusively refuted by the record, there is no need to hold an evidentiary hearing. Accordingly, we affirm the trial court’s order denying Defendant’s motion to withdraw plea.

Affirmed.

      . In his motion, Defendant states that he "appeared before this Honorable Court on August 30, 2004 regarding case numbers F04-14924, F04-14926, and F04-14927. Counsel advised Defendant, who was out on felony bond, that the State was offering a plea of 15 years with a mandatory 10 years. Defendant did not accept [the] plea [and the][c]ases were set for trial.”


source: Caselaw Access Project

author: ROTHENBERG, Judge.

license: Public Domain

text:
    A.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-629.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.

      Bennett H. Brummer, Public Defender, and Howard K Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

A.D., a juvenile, appeals the trial court’s order adjudicating him delinquent and the denial of his motion to suppress evidence seized as a result of his arrest. We affirm.

A.D. was observed by law enforcement in a business area on Main Street in Miami Lakes at approximately 8:59 p.m. It is undisputed that some of the businesses were open at the time, and that the area is marked with signs which provide that the business owners have authorized law enforcement to prevent individuals from loitering or trespassing. While there was conflicting evidence as to exactly what occurred during A.D.’s encounter with the police, it is undisputed that A.D. was asked to leave and when he became agitated, he was asked to step off to the side to speak to an officer, who explained to A.D. that he was obstructing a walk-way on private property and that the officer was authorized by the owner of the property to prevent loitering. When A.D. refused to leave, he was arrested. A search incident to the arrest revealed a Xanax pill in the pocket of A.D.’s shorts.

A.D. argues that he was not trespassing and that his detention was unlawful as law enforcement lacked reasonable articulable suspicion that A.D. was trespassing or engaged in any other criminal activity to justify an investigatory stop. As we conclude that the encounter with A.D. did not rise to the level of an investí-gatory stop requiring reasonable suspicion of criminal activity, we affirm.

There are three levels of law enforeement/citizen encounters: (1) consensual encounters where the citizen is free to leave and no constitutional safeguards are invoked; (2) investigatory stops (“Terry stops”) where a citizen may be temporarily detained and which requires a well-founded articulable suspicion that the person has committed, is committing, or is about to commit a crime; and (3) an arrest, which must be supported by probable cause. Popple v. State, 626 So.2d 185, 186 (Fla.1993).

A.D. argues that when he was asked to move to another area for further questioning, what may have begun as a consensual encounter, turned into an investigatory stop requiring reasonable suspicion. We disagree. The Fourth Amendment prohibition against unreasonable searches and seizures is not implicated when an encounter with the police is found to be consensual. Whether a particular encounter is consensual requires consideration of all of the facts and circumstances surrounding the encounter and hinges on whether the circumstances would communicate to a reasonable person that he/she is free to leave and terminate the encounter. Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Taylor v. State, 855 So.2d 1, 15 (Fla.2003). Under the facts and circumstances in this case, law enforcement was not attempting to detain A.D. To the contrary, they were attempting to convince him to leave. A.D., therefore, could not reasonably argue that he or any reasonable person would have felt that he/she could not leave. The consensual encounter unfortunately turned into a valid arrest after A.D. was asked three times to leave by the officer, and refused to do so, thus elevating the consensual encounter to an arrest for trespass after warning.

Affirmed.


author: PER CURIAM.

text:
    Paul SIBBLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-421.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Paul Sibbley, in proper person.

      Charles J. Crist, Jr., Attorney General, and Richard J. Polín, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Paul Sibbley has petitioned for a writ of mandamus to compel the trial court to rule on his motion for post-conviction relief, filed on or about March 24, 2005. The State indicates that neither the trial court nor the State Attorney’s office has a copy of the petitioner’s motion, although the trial court seemed poised to rule on it pending receipt of additional records.

We deny the petitioner’s petition for mandamus at this time, and instead direct him to submit an additional copy of his March 24, 2005 motion to the trial court and to the State Attorney’s office citing this appellate case number. We are confident that the trial court will rule on the petitioner’s motion within thirty days of receiving it, as it appears to now have the necessary companion records to be able to do so. See Cook v. State, 817 So.2d 946 (Fla. 3d DCA 2002).

Mandamus denied.


text:
    Lesley SEASE, Appellant, v. Lori SCARPA, Appellee.
    No. 3D06-463.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Gaunt, Pratt, Radford Methe, P.A. and Stephen F. Radford (West Palm Beach), for appellant.
    Cathy L. Purvis Lively and Joshua Bleil (Lake Worth), for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Lesley Sease appeals a Final Judgment of Injunction for Protection Against Repeat Violence. We affirm finding that the court did not abuse its discretion in entering the injunction. See Abravaya v. Gonzalez, 734 So.2d 577 (Fla. 3d DCA 1999); Lopez v. Lopez, 922 So.2d 408 (Fla. 4th DCA 2006). The record supports the entry of the injunction in this case. § 784.048, Fla. Stat. (2006).


text:
    Jorge CASALES, Appellant, v. REZDRUMS 2 INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D06-729.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.

      Jorge Casales, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Unemployment Appeals Commission.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Jorge Casales (“Casales”), appeals the Unemployment Appeals Commission’s order reversing the appeals referee’s decision to grant Casales unemployment benefits. We reverse.

We agree with the appeals referee that Casales’ actions amount to a good-faith error in judgment or discretion which is not deemed misconduct undpr section 443.101(1), Florida Statutes (2005). Further, the record fails to reveal competent substantial evidence that Casales’ single good-faith error in judgment was serious enough to warrant disqualification of benefits. See Garcia v. Fla. Unemployment Appeals Comm’n, 923 So.2d 1193 (Fla. 3d DCA 2006); Jackson v. Unemployment Appeals Comm’n, 730 So.2d 719 (Fla. 5th DCA 1999); Miller v. Barnett Bank of Broward County, 650 So.2d 1089 (Fla. 3d DCA 1995).

Accordingly, we reverse and remand with directions to afford Casales the benefits he claimed.

Reversed and remanded.


text:
    Steven W. DEFONTES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1095.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Steven W. Defontes, Blountstown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Steven Defontes appeals the trial court order summarily denying his motion for post-conviction relief in which he claimed that his guilty pleas to robbery and violation of probation from an earlier case were involuntary. Defontes made four interrelated claims of involuntary pleas in his motion. The trial court order denied the first three but did not address the fourth claim.

The interrelated claims were that De-fontes was not told by the court or counsel, and the prosecutor withheld the information, that he faced a maximum sentence of fifteen years in prison for the robbery and seven years for the violation of probation, based on an agreement in the latter case. Instead, Defontes alleged that he was advised at his plea hearing that he faced sentences of fifteen years on each case, which could run consecutively. He alleged that he learned of the seven year maximum on the violation of probation case only at sentencing, and that he would not have entered his pleas had he known the true maximum terms he faced.

The State has conceded the need for an evidentiary hearing on the first three, interrelated claims in the context of a claim of ineffective assistance of trial counsel resulting in involuntary plea. See Mourra v. State, 884 So.2d 316 (Fla. 2d DCA 2004); Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002). The State also concedes the need to remand for the trial court to consider appellant’s fourth claim which the trial court did not expressly address. We agree with this disposition and therefore reverse and remand for an evidentiary hearing on claims one through three as an ineffective assistance of counsel claim resulting in involuntary plea, and for the trial court to address claim four.

Reversed and Remanded.

GUNTHER, FARMER and KLEIN, JJ., concur.


text:
    Timothy BAILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2334.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GREEN, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

The defendant, Timothy Bailey, appeals the trial court’s denial of his motion to suppress the evidence seized from the house where he resided. As we conclude that the investigatory stop of the vehicle Bailey was in was based upon reasonable well-founded suspicion, see Popple v. State, 626 So.2d 185, 186 (Fla.1993), and that the written consent to search obtained from Bailey was freely and voluntarily given, see United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)(holding that “custody alone has never been enough in itself to demonstrate a ... consent to search”); United States v. Barnett, 989 F.2d 546, 555-56 (1st Cir.1993)(rejecting defendant’s argument that his consent was not voluntary due to the “strong police presence”), we find that the trial court did not abuse its discretion in denying Bailey’s motion to suppress. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002)(“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.”)

Affirmed.


text:
    Robert COSTELLO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3248.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2006.
    Robert Costello, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    Miquel R. SIERRA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4649.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2006.
    Miquel R. Sierra, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, PADOVANO, and THOMAS, JJ., concur.


author: SHAHOOD, J.

text:
    Junior DANESTAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1261.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Rehearing Denied Nov. 8, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for. appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by Junior Danestan, appellant, from a conviction and sentence on the charges of attempted sexual battery on a person twelve years of age or older (Count 3), lewd or lascivious conduct (Count 4), and false imprisonment (Count 5). Appellant raises five issues on appeal, but we find merit in only one.

As his first issue, appellant argues that his double jeopardy right was violated when the court adjudicated and sentenced him for both attempted sexual battery on a person twelve years of age or older and lewd or lascivious conduct. We agree and reverse and remand with directions for the trial court to enter a judgment of acquittal on Count 4, lewd or lascivious conduct.

The evidence in this case revealed that the victim went to a friend’s house to get her hair braided. When the friend left the house to run an errand with appellant, a codefendant and brother of the friend sexually assaulted the victim. Upon the friend and appellant’s return to the house, they noticed something was wrong with the victim. Appellant asked the victim what was wrong and told her to come back to the bedroom to talk to him about what happened. The victim agreed and they went to the bedroom and the victim started to tell appellant what happened. Appellant moved to close the door but stopped to talk to someone on the other side of the door. The victim wanted to leave and told appellant that she needed to go and tell her friend something, but appellant would not let her out of the door. Appellant started to walk back toward the bed and appellant closed the door and turned up the music really loud. Appellant pushed the victim onto the bed, got on top of her and started kissing her. Appellant asked if he could just do this one thing, but she told him no. Appellant unbuckled his pants and took them off while he held her down. The victim screamed twice and appellant ejaculated on her dress and leg. Appellant took a sheet and wiped the victim off. The victim then left the bedroom.

Following a jury trial, appellant was found guilty of attempted sexual battery on a person twelve years of age or older, lewd or lascivious conduct, and false imprisonment.

Our federal and state constitutions prevent the government from subjecting a person to being criminally tried twice for the same conduct. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const. This is a fundamental right that may be raised for the first time on appeal. Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003). Florida has codified this right in section 775.021, Florida Statutes (2003).

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). If there is no clear legislative statement regarding separate punishments, courts determine whether each offense has an element that the other does not. Gordon, 780 So.2d at 19-20.

Here there is no legislative statement separating punishments for sexual battery and lewd or lascivious conduct. However, the elements for sexual battery and lewd or lascivious conduct are not the same, and so they can be considered separate offenses, leaving the question of whether the offenses constituted separate and discrete acts. See Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005) (multiple convictions for lewd or lascivious acts when incidents not discrete constituted double jeopardy violation); Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005) (conviction for sexual battery and lewd or lascivious molestation that arose out of single act constituted double jeopardy violation); Tannihill, 848 So.2d at 444 (convictions for sexual battery and lewd or lascivious battery, based on same act, constituted double jeopardy violation).

“In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.” Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001).

In this case, we find that the violations took place at the same time, and constitute a single act, rather than multiple acts within a single episode. There was no indication in this case that appellant “had time to pause, reflect, and form a new criminal intent between the occurrences.” Eaddy, 789 So.2d at 1095. The sole act that appellant could have been found guilty of under the charges occurred where appellant got on top of the victim, kissed her, unbuckled and took off his pants, and ejaculated on her. We hold that this constituted one incident. See Leyva v. State, 925 So.2d 393, 395 (Fla. 4th DCA 2006) (the acts of pushing the victim down on the bed and rubbing her leg constituted one incident).

The State charged, the jury found, and the facts support a single act of attempted sexual battery or lewd or lascivious conduct. For this reason, we reverse and remand the case to the trial court to vacate appellant’s conviction on Count 4 and to resentence appellant accordingly.

Reversed and Remanded for Resentenc-ing.

FARMER and TAYLOR, JJ., concur.


text:
    Patti ADLER, Appellant, v. Angela ANTONICK, The Rose Filmore Living Trust, Rose Filmore, Sandra Lambright, and Joyce Hayes, Appellees.
    No. 3D06-186.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 2006.
    Haggard, Parks, Haggard Bologna, P.A.; and Gregg J. Ormond, Coral Gables; and Lawrence Daniels and Adam Lawrence, Miami, for appellant.
    Josephs Jack and Susan S. Lerner, Miami, for appellees.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. Stary v. Everette, 693 So.2d 636 (Fla. 3d DCA 1997); Tran v. Bancroft, 648 So.2d 314 (Fla. 4th DCA 1995); Allen v. Enslow, 423 So.2d 616 (Fla. 1st DCA 1982).


text:
    Melvin CORMIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4841.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Melvin Cormier, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, C.J., ERVIN and POLSTON, JJ., concur.


text:
    Christopher BRADLEY, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2012.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Christopher Bradley, pro se, Appellant.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Turner v. State, 557 So.2d 939 (Fla. 5th DCA 1990); Shields v. Colonial Penn Ins. Co., 513 So.2d 1363 (Fla. 5th DCA 1987).

BARFIELD, C.J., ERVIN and POLSTON, JJ., concur.


text:
    Rodney Russell GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5221.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this case filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no preserved reversible error apparent from the face of the record. However, we note that in case number 05-268, the trial court orally pronounced a sentence of three years’ imprisonment to be followed by two years of probation, but the written sentence erroneously indicates that the incarcerative portion of the sentence is to be followed by five years of probation. Although the written sentence is wrong, this Court cannot direct the trial court to correct the error because the issue was not preserved for appeal by the filing of a timely motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). See Aument v. State, 868 So.2d 682 (Fla. 5th DCA 2004).

Accordingly, we affirm the appellant’s judgment and sentence without prejudice to appellant’s filing a timely motion for postconviction relief to correct the sentencing discrepancy.

AFFIRMED.

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.

      . The "Judgment, Sentence and Order Placing Defendant on Probation During Portion of Sentence,” correctly indicates that the term of probation in case number 05-268 is two years.


text:
    Prince CROMARTIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4673.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Prince Cromartie, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Waterhouse v. State, 792 So.2d 1176, 1193 (Fla.2001) (stating that ineffective assistance of postconviction counsel is not a cognizable claim).

ALLEN, BENTON, and HAWKES, JJ., concur.


text:
    Michael CORDLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3591.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.

      Michael Cordle, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990).

BARFIELD, C.J., ERVIN, and POLSTON, JJ., concur.


text:
    Sammie Lee KAISER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4732.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Sammie Lee Kaiser, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

BARFIELD, C.J., ERVIN, and POLSTON, JJ., concur.


text:
    Roberto BORROTO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4787.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2006.
    Roberto Borroto, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Mundy v. State, 745 So.2d 351 (Fla. 1st DCA 1999).

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    J.M., A Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D05-4367 to 5D05-4369.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

In this delinquency case consolidating three appeals, J.M. challenges a disposition order committing him to a level 8 placement despite the Department of Juvenile Justice’s recommendation that he be committed to a level 6 placement. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.145(b)(1). We reverse the disposition order in case number 05-4367, but the disposition orders in case numbers 05-4368 and 05-4369 are affirmed.

To disregard DJJ’s commitment recommendation a trial court must state its reasons and “must reference the characteristics of the restrictiveness level vis-a-vis the needs of the child.” A.G. v. State, 737 So.2d 1244, 1247 (Fla. 5th DCA 1999). See also T.N. v. State, 929 So.2d 1133, 1136-37 (Fla. 5th DCA 2006); C.M.L. v. State, 895 So.2d 495, 496 (Fla. 5th DCA 2005); T.S. v. State, 801 So.2d 171, 172 (Fla. 5th DCA 2001). Here, the trial court gave reasons, the primary one being J.M.’s failures to appear for hearings. The court, however, did not make reference to the characteristics of a level 8 program vis-a-vis J.M.’s needs. Indeed, the court did not mention JM.’s needs at all. The statutory definition of high-risk residential programs states that “[placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels.” § 985.03(46)(d), Fla. Stat. (2005). Nothing in this case indicates that the court was concerned about public safety with respect to J.M. Even the court’s gang comment— the evidentiary support for which is unclear — was directed toward keeping J.M. away from gang members rather than protecting the public from J.M. See A.W v. State, 862 So.2d 858 (Fla. 4th DCA 2003).

Accordingly, we reverse the trial court’s order in case number 05-4367 and remand for sentencing in accordance with the DJJ’s recommendation or a sentence that is justified by the record with stated reasons. See G.L. v. State, 937 So.2d 801 (Fla. 5th DCA 2006).

AFFIRMED in part; REVERSED in part AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.

      . Appellant received sentences of time served in the latter two cases and makes no challenge to these dispositions on appeal.


text:
    Carl R. GARRETT, Appellant, v. Randie R. GARRETT, Appellee.
    No. 1D05-4653.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2006.
    Carl R. Garrett, pro se, Appellant.
    Lyman T. Fletcher and Michael R. Phillips of The Law Office of Lyman Fletcher, Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).

ERVIN, WEBSTER, and HAWKES, JJ., concur.


text:
    Johnny W. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4972.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2006.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Louisiana v. Stripling, 354 So.2d 1297 (La.1978).

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    L.G., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1245.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

L.G. appeals the trial court’s juvenile disposition order committing him to moderate-risk residential placement as a result of his delinquent acts for the offenses of sexual battery on a child under 12 years of age by a defendant less than 18 years of age. We reverse the disposition entered because the lower court erred as a matter of law in deciding it had no legal authority to place the child on probation for such acts.

Following the entry of the order for delinquency detention, the Department of Juvenile Justice filed a pre-disposition report which recommended minimum-risk residential placement. During the disposition hearing, the lower court concluded, after examining the provisions of sections 985.03(44), and 985.03(46)(a) and (b), Florida Statutes (2005), that probation was not an option and, as stated, committed the child to a moderate-risk residential program.

Our standard of review of a trial court’s interpretation of a statute is de novo. See Koile v. State, 934 So.2d 1226, 1229 (Fla.2006); Direct Gen. Ins. Co. v. Morris, 884 So.2d 1077, 1078 (Fla. 1st DCA 2004). In deciding that it was not empowered to order probation, the lower court erroneously construed the provisions of subsections (44) and (46) in pari materia. Section 985.03(44) provides as follows:

“Probation” means the legal status of probation created by law and court order in cases involving a child who has been found to have committed a delinquent act. Probation is an individualized program in which the freedom of the child is limited and the child is restricted to noninstitutional quarters or restricted to the child’s home in lieu of commitment to the custody of the department. Youth on probation may be assessed and classified for placement in day-treatment probation programs designed for youth who represent a minimum risk to themselves and public safety and do not require placement and services in a residential setting.

Section 985.03(46)(a) and (b), relating to minimum-risk nonresidential and low-risk residential placement, provides as follows:

“Restrictiveness level” means the level of programming and security provided by programs that service the supervision, custody, care, and treatment needs of committed children.... The restrictiveness levels of commitment are as follows:
(a) Minimum-risk nonresidential.— Programs or program models at this commitment level work with youth who remain in the community and participate at least 5 days per week in a day treatment program. Youth assessed and classified for programs at this commitment level represent a minimum risk to themselves and public safety and do not require placement and services in residential settings. Youth in this level have full access to, and reside in, the community. Youth who have been found to have committed delinquent acts that involve firearms, that are sexual offenses, or that would be life felonies or first degree felonies if committed by an adult may not be committed to a program at this level.
(b) Low-risk residential. — Programs or program models at this commitment level are residential but may allow youth to have unsupervised access to the community. Youth assessed and classified for placement in programs at this commitment level represent a low risk to themselves and public safety but do require placement and services in residential settings. Children who have been found to have committed delinquent acts that involve firearms, delinquent acts that are sexual offenses, or delinquent acts that would be life felonies or first degree felonies if committed by an adult shall not be committed to a program at this level.

(Emphasis added.)

The issue in this case is whether section 985.03(44) should be interpreted as authorizing probation as a sanction for a child found to have committed any type of delinquent act, without reference to the limiting language included in section 985.03(46)(a) and (b). The court’s error in the present case was in construing the sexual offenses language of subsection (46), pertaining to restrictiveness levels of commitment, as applying to the probation provisions of subsection (44), despite the lack of such language therein.

In so interpreting the statute, the court overlooked pertinent rules of statutory construction, particularly the rule stating that where the legislature has used a term in one part of the statute, but has omitted it from another part of the same provision, the court “will not imply it where it has been excluded.” Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). Stated differently, “it is a basic principle of statutory construction that courts ‘are not at liberty to add words to statutes that were not placed there by the Legislature.’ ” Seagrave v. State, 802 So.2d 281, 287 (Fla.2001) (quoting Hayes v. State, 750 So.2d 1, 4 (Fla.1999)).

In applying the above rules, the language of section 985.03(44) clearly provides that “probation” in regard to a child who is found to have committed a delinquent act is an individualized program that limits the freedom of a child who is not committed to the custody of the Department. Such children “may be assessed and classified for placement in day-treatment probation programs designed for youth who represent a minimum risk to themselves and public safety and do not require placement and services in a residential setting.” In contrast, the provisions of section 985.03(46) relate to restrictiveness levels applicable to children who are not eligible for non-custodial care. As both parties and the trial court recognize, subparagraphs (a) and (b) of subsection (46) contain language which provides that youths who have been found to have committed delinquent acts involving firearms, sexual offenses, life felonies, or first-degree felonies if committed by an adult “may not be committed to a program at this level.”

The trial court’s implicit incorporation of the limiting language of subsection (46) into subsection (44) is contrary to long-recognized principles governing statutory construction. Where the legislature has used a term in one part of the statute and excluded it in another, it is improper to imply the term in a provision where it has been otherwise excluded. Because the legislature did not include language in the probation definition limiting the imposition of probation for certain specified delinquent acts, the lower court erred in so doing.

The disposition order is REVERSED, and the case is REMANDED with directions for the court to consider in its discretion whether probation is an appropriate alternative disposition to residential placement.

ERVIN, WEBSTER, and HAWKES, JJ., concur.

      . After the trial court later entered the disposition order, the Department filed an amended report recommending moderate-risk residential placement.


text:
    Lucas Leroy WOODWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1126.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2006.
    James S. Purdy, Public Defender, and Robert Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Leonard v. State, 760 So.2d 114 (Fla.2000) and State v. Jefferson, 758 So.2d 661 (Fla.2000).

SAWAYA, PALMER and MONACO, JJ., concur.


text:
    Suzanne MINUCCI, Appellant, v. UNITED PARCEL SERVICE, INC. and Liberty Mutual Insurance Company, Appellees.
    No. 1D05-3096.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Mark L. Zientz and Andrea Cox, of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Rebecca B. Watford, of The Watford Law Firm, Miami; and Claire Bryant Ford, Miami, for Voices, Inc., Amicus Curiae for Appellant.
    Wendy S. Loquasto, of Fox & Loquasto, P.A., Tallahassee; and Susan W. Fox, of Fox & Loquasto, P.A., Tampa, for Florida Workers’ Advocates, Amicus Curiae for Appellant.
    Tara L. Sa'id, of Law Office of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. See City of Holmes Beach v. Grace, 598 So.2d 71 (Fla.1992).

WOLF, PADOVANO, and THOMAS, JJ., concur.


author: WELLS, Judge.

text:
    Patrick RICE, Petitioner, v. Charles FREEMAN, Respondent.
    No. 3D06-1737.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.

      Robin F. Frydman, Hollywood, for petitioner.
    Charles Freeman, in proper person.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Patrick Rice petitions this court to issue a writ prohibiting the Eleventh Judicial Circuit Court Appellate Division from entertaining Charles Freeman’s appeal from a County Court money judgment. We grant the petition but withhold issuance of a writ confident that the Appellate Division will comply with this opinion.

On November 7, 2005, a final money judgment in the amount of $2,555 was entered against Freeman in . Rice’s favor. Although that judgment was entered following a non-jury trial, at which both Rice and Freeman were in attendance, the judgment was inaccurately titled “DEFAULT FINAL JUDGMENT:’ This judgment was rendered on November 9 when it was filed with the clerk of the lower tribunal. See Fla. R.App. P. 9.020(h) (defining rendition as “when a signed, written order is filed with the clerk of the lower tribunal” unless a timely authorized motion tolling rendition is filed).

On November 23, 2005, the County Court sua sponte entered a second final judgment, this one identical in all respects to the original November 7 judgment save the title which removed the inaccurate “default” moniker. On December 14, 2005, Freeman filed a notice of appeal from the “Corrected Final Judgment.” However this notice did not timely invoke the jurisdiction of the appellate court.

“Under Rule 9.110, the ‘[flailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla. 3d DCA 2003) (quoting First Nat’l Bank in Fort Myers v. Florida Unemployment Appeals Comm’n, 461 So.2d 208, 208 (Fla. 1st DCA 1984)); see Crapp v. Criminal Justice Standards & Training Comm’n, 753 So.2d 787, 787 (Fla. 3d DCA 2000) (finding that an appeal from a lower administrative tribunal was untimely where the notice of appeal was filed 2 days late); Hawks v. Walker, 409 So.2d 524, 525 (Fla. 5th DCA 1982) (finding that a notice of appeal filed two days late was untimely).

“Florida follows the majority rule that, where a judgment is amended in a material respect, the appeal time runs from the date of the amendment, provided the amendment is material, not minor or formal.” DeGale v. Krongold, Bass & Todd, 773 So.2d 630, 631-32 (Fla. 3d DCA 2000). Thus, as explained in St. Moritz Hotel v. Daughtry, 249 So.2d 27, 28 (Fla.1971) (quoting Fed. Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S.Ct. 245, 97 L.Ed. 245 (1952)):

Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew.

See Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973, 974 (Fla. 4th DCA 2003).

In this regard, “[t]he question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.” St. Moritz Hotel, 249 So.2d at 28. Here, the court’s second order did no more than correct a clerical error — the title of the judgment — and in no manner changed the rights or obligations of the parties. Accordingly, the notice of appeal had to be filed within 30 days of rendition of the original judgment, on or before December 9, 2005. Because the notice of appeal was filed after that date, the Circuit Court lacks jurisdiction to consider the appeal at issue.

We thus grant the petition but withhold actual issuance of the writ, trusting it unnecessary in light of the statements made herein.

      . No post trial or post judgment motions were filed.


author: FLETCHER, Judge.

text:
    Jose G. PUIG, Jr., P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORP., Appellee.
    No. 3D06-298.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.

      Reiner & Reiner and Samuel B. Reiner, Miami, II, for appellant.
    Bruce A. Campbell, Tallahassee, for ap-pellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   FLETCHER, Judge.

Jose G. Puig, Jr., P.E. (Puig) appeals from a final order of the Florida Engineers Management Corporation (FEMC) which rejected an administrative law judge’s recommendation that an administrative complaint against Puig be dismissed. We reverse.

On September 30, 2004, FEMC filed an administrative complaint against Puig, a licensed engineer, alleging violations of sections 471.033(1)(a) & (j) and 455.227(1)(a) & (j), Florida Statutes (2004), which prohibit sealing plans not prepared by, or under the supervision of, the engineer and assisting an unlicensed person in the practice of engineering. The specific charges against Puig were that he sealed plans to two projects under contract to Orlando Naranjo, whose license to practice engineering had been revoked in September of 2001. Puig denied the charges against him.

At an evidentiary hearing before an administrative law judge, Puig testified that he assumed the role of engineer of record on the Tora Ernes and Manatee Village projects as a favor to Naranjo and without compensation. Puig affirmed that he reviewed the work done prior to his involvement, directed and instructed Naranjo and his employees in drafting work, and oversaw completion of the design work before finally affixing his signature and seal to the plans. He admitted, however, that all documents relating to the projects remained in Naranjo’s offices which were located next to his own offices.

The administrative law judge issued a detailed order concluding that Puig “affirmatively established, through his own credible testimony, which was corroborated by the testimony of other witnesses, that the plans he signed and sealed ... were prepared under his responsible supervision, direction, and control,” and “he did not do anything intended to aid or assist in the unlicensed practice of engineering.” He, therefore, recommended that the complaint be dismissed. Upon review, FEMC rejected this recommendation and imposed penalties, including an administrative fine and costs.

A hearing officer’s findings based on competent, substantial evidence may not be rejected by an administrative agency. Packer v. Orange County School Bd., 881 So.2d 1204 (Fla. 5th DCA 2004). Nor may the agency avoid this responsibility by labeling the findings as conclusions of law. McMillan v. Broward County School Bd., 834 So.2d 903 (Fla. 4th DCA 2003). Here, FEMC objected to the finding that Puig did not intend to assist Naranjo in the unlicensed practice of engineering deeming this to be a conclusion of law not supported by the language of Sections 471.033 and 455.227. Whether or not Puig intended to violate the statute, however, is not the point at issue. The only acts upon which an alleged violation of the statutes is predicated are the signing and sealing of the plans for the two projects contracted to Naranjo. The hearing officer, in its role as a finder of fact and based on competent substantial evidence, determined that the plans were properly sealed under Puig’s active supervision and control when he assumed the role of engineer of record on the two projects. Because the acts, upon which the violations were predicated, were disproved, Puig could not be found to be in violation of the statutes.

We, therefore, reverse and remand with instructions that the administrative law judge’s recommended order be approved.


author: GROSS, J.

text:
    Howard STENNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3818.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The issue in this case is whether a marijuana pipe and cocaine rocks were the fruits of a search that violated the Fourth Amendment to the United States Constitution. We hold that the search occurred after an investigatory stop that was unsupported by reasonable suspicion, and reverse.

Appellant Howard Stennes was sitting in his Ford Explorer in a dark area behind an open gas station at 11:30 p.m. A white Monte Carlo was parked next to Stennes, who was talking to that car’s passenger. The Monte Carlo left the area. Although the testimony conflicted, the trial court found that the arresting officer pulled his marked police car, with headlights on, directly behind Stennes’s Explorer, so that he was blocked from leaving. The officer then initiated what he described as “a consensual encounter” that yielded contraband.

In the circuit court, after Stennes’s motion to suppress was denied, he changed his plea to nolo contendere, reserving his right to appeal.

On an appeal of a motion to suppress evidence, this court defers to the trial court’s factual findings but reviews legal conclusions de novo. See, e.g., Pantin v. State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004). We may not substitute our judgment for that of the circuit court on issues of credibility that led to the lower court’s resolution of conflicts in the evidence. See State v. Brown, 592 So.2d 308, 310 (Fla. 3d DCA 1991) (Gersten, J., dissenting).

The officer’s blocking of the Explorer created an investigatory stop and not a consensual encounter, because Sten-nes was no longer free to leave to avoid answering the officer’s questions. See Popple v. State, 626 So.2d 185, 187-88 (Fla.1993); Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002). As the fifth district has written, “positioning a patrol car to obstruct the path of [a] vehicle once it is stopped elevates the encounter to an investigatory stop.” Young, 803 So.2d at 882 (citing Griffin v. State, 800 So.2d 345, 347 (Fla. 4th DCA 2001)) (stating “when [the officers] drove their vehicle behind the appellant’s car, effectively preventing his exit, [the appellant] could not leave. Therefore, the police effected a stop unsupported by either reasonable suspicion or probable cause.”) (citations omitted); see Richardson v. State, 291 So.2d 253, 255 (Fla. 1st DCA 1974) (holding a stop was effected where officer’s vehicle blocked defendant’s vehicle from proceeding); see also L.J.S. v. State, 905 So.2d 222, 225 n. 1 (Fla. 2d DCA 2005); Cowart v. State, 635 So.2d 1063 (Fla. 2d DCA 1994); Palmer v. State, 625 So.2d 1303 (Fla. 1st DCA 1993).

To justify an investigatory stop, the arresting officer had to have a reasonable suspicion that Stennes had committed, was committing, or was about to commit a crime. See Ippolito v. State, 789 So.2d 423, 425 (Fla. 4th DCA 2001). Whether an officer has a reasonable suspicion for a stop depends on the totality of the circumstances, interpreted in light of the officer’s knowledge and experience at the time of the stop; a “mere ‘hunch’ that criminal activity may be occurring is not sufficient.” Id. (citations omitted).

Here, Stennes was legally parked behind an open gas station “not engaged in any observable unlawful activity.” Id. at 425. The officer observed no potentially illegal activity in the interaction between the occupants of the Monte Carlo and Stennes. Without more, the late hour and the history of burglaries in the area did not give rise to a reasonable suspicion that Stennes had committed, was committing, or was about to commit a crime. Id. The trial court erred in denying the motion to suppress.

Reversed and Remanded.

GUNTHER and FARMER, JJ., concur.


text:
    Sammy BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-531.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.
    Bennett H. Brummer, Public Defender and John Eddy Morrison, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Lucretia A. Pitts, Assistant Public Defender, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

We affirm the appellant’s conviction and sentence where the claimed error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.


text:
    Corrie KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3581.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2006.

      Jack R. Maro, Ocala, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Corrie Kelly, seeks a writ of habeas corpus to obtain pretrial release. Petitioner was charged with drug offenses and other crimes in two Lake County cases. None of the criminal charges are capital offenses or punishable by life imprisonment. Petitioner has been detained without bond since his arrest on July 28, 2006. Petitioner filed a motion to set bond, and after a hearing the trial court entered an order denying said motion on October 6, 2006.

As the state did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, the trial court should have determined the proper conditions of pretrial release at the hearing on the motion to set bond. See Ho v. State, 929 So.2d 1155 (Fla. 5th DCA 2006); Nguyen v. State, 925 So.2d 435 (Fla. 5th DCA 2006). We therefore grant the petition for writ of habeas corpus, and direct the trial court to conduct a pretrial release hearing pursuant to Florida Rule of Criminal Procedure 3.131, no later than three business days following the issuance of this opinion. This decision is without prejudice to the state to file a motion for pretrial detention, should it choose to do so. See Griffith v. State, 914 So.2d 1053 (Fla. 5th DCA 2005).

PETITION GRANTED.

THOMPSON, TORPY and EVANDER, JJ., concur.


text:
    Lawrence D. EVANS, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D05-5593.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2006.

      Lawrence D. Evans, pro se, Appellant.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Lawrence D. Evans challenges the trial court’s dismissal of his petition for writ of mandamus, as well as the court’s order authorizing the Department of Corrections to place a lien on his inmate trust account for payment of court costs and filing fees.

On January 12, 2005, appellant received a disciplinary report when officers discovered contraband in his cell. The first of two disciplinary hearings was convened on January 19, 2005, and as a result appellant was assessed 30 days disciplinary confinement and penalized 15 days of earned gain time. Appellant pursued an administrative appeal, and ultimately the disciplinary team’s decision was overturned by the Warden for the Union Correctional Institution. At a second disciplinary hearing, held March 9, 2005, appellant was given only 15 days disciplinary confinement with no lost gain time. With respect to this second disciplinary hearing, appellant contended that he was denied his constitutional right to be present at that hearing. Accordingly, appellant filed a series of administrative appeals from the March 9 decision, all of which were denied.

Appellant filed a petition for writ of mandamus on July 18, 2005, arguing that the disciplinary action should be reversed. On September 2, the Clerk of Court entered a Certificate of Indigence and enrolled appellant in a payment program, requiring him to make periodic payments from his inmate trust account toward the total amount of court costs and fees associated with his petition. Accompanying that Certificate, the trial court entered an order authorizing the Department of Corrections to place a lien on appellant’s inmate trust account. Appellant filed a motion for rehearing, arguing that Florida Statutes barred the trial court from placing a lien on appellant’s trust account in any criminal proceeding or collateral criminal proceeding. That motion was denied.

On October 25, 2005, the trial court entered an order dismissing appellant’s petition for mandamus relief. In particular, the trial court noted that the Clerk had determined appellant was able to prepay some part of the court costs and fees, and that the period of time in which appellant was required to make such payments had since expired. Appellant appeals this order of dismissal, as well as the court’s order of September 2 that placed a lien on his inmate trust account.

Appellant argues that the trial court erred in dismissing his mandamus petition because the Clerk’s Certificate enrolling him into a payment plan did not provide him with notice that partial prepayment was required in order for his action to proceed. The Department concedes that this was reversible error by the trial court.

Appellant also argues that the trial court erred in imposing a lien on appellant’s inmate trust account. We agree. See Jackson v. McDonough, 31 Fla. L. Weekly D2299, - So.2d -, 2006 WL 2527244 (Fla. 1st DCA Sept. 5, 2006) (holding that an inmate’s mandamus petition, challenging a disciplinary report imposing 15 days disciplinary confinement, was a collateral criminal proceeding because the disciplinary confinement limited petitioner’s ability to earn gain time).

Therefore, we (i) reverse the September 2, 2005 order imposing a lien on appellant’s inmate trust account and remand for entry of an order directing the reimbursement of any funds withdrawn from appellant’s inmate account pursuant to the lien, and (ii) reverse the October 25, 2005 order dismissing appellant’s petition for mandamus relief and remand for further proceedings.

REVERSED and REMANDED.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Michael L. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3117.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2006.
    Michael L. Butler, pro se, Appellant.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant stated a facially sufficient claim that he is entitled to additional jail credit, and because the trial court failed to attach portions of the record which conclusively refute the appellant’s claim, we reverse and remand to the trial court to attach additional portions which conclusively refute the appellant’s claim or to grant the relief requested. See Dorminey v. State, 895 So.2d 533 (Fla. 1st DCA 2005).

REVERSED and REMANDED.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    Roy CARVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3503.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2006.
    Roy Carver, pro se, Petitioner.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Roy Carver is hereby afforded a belated appeal from the order denying motion for correction of sentence in the Circuit Court for Bay County, case number 96-0788G. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Emma Pearl WILLIAMS, Appellant/Cross-Appellee, v. James WILLIAMS, Jr., Appellee/Cross-Appellant.
    No. 2D05-3980.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.

      John A. Naser, Lakeland, for Appellant/Cross-Appellee.
    Debra J. Sutton of The Sutton Law Firm, Bartow, for Appellee/Cross-Appel-lant.
   SILBERMAN, Judge.

Emma Pearl Williams, the Wife, appeals an order granting in part and denying in part her motion to enforce the parties’ mediation agreement. James Williams, Jr., the Husband, cross-appeals and argues that the trial court should have set aside the agreement in its entirety.

We reject the arguments raised in the Husband’s cross-appeal and affirm the order to the extent that it grants the Wife’s motion to enforce the mediation agreement. However, we reverse the order in two respects. First, we reverse the trial court’s determination that the Husband was under duress as to the provision in the agreement addressing refinancing of the marital home. Second, we reverse the trial court’s modification of the agreement to require the sale of the marital home in the event the Wife is unable to refinance it.

After the Wife filed her petition for dissolution of marriage, the trial court ordered the parties to mediation. At the mediation conference, the parties reached an agreement and executed a written mediation agreement, settling a number of issues. The agreement provides that the Wife shall be designated the primary residential parent for the parties’ two minor children. Further, it provides as follows:

4. WIFE’S EQUITABLE DISTRIBUTION: The Wife shall receive as an equitable distribution the following:
a. The marital home located at 3465 Jade Court, Mulberry FL 33860. The Husband shall convey to the Wife all his right, title, and interest in and to the marital home. The Wife shall be responsible for paying the mortgage and shall hold the Husband harmless for payment of same. The Husband shall vacate the marital home on or before April 1, 2005. The Wife agrees to make a good-faith effort to refinance the marital home within ninety (90) days after the entry of the Final Judgment.

Eventually, thé Wife filed a motion to enforce the mediation agreement, asserting that the Husband failed to comply with its terms.

At an evidentiary hearing on the motion to enforce, the Husband claimed that he signed the agreement without understanding it. He complained about the child support provision and stated that he would not agree to the Wife staying in the marital home. He did not provide any detail as to his financial situation but asserted that the provisions as to child support and the marital home would leave him without enough money for his own expenses. He added that he did not want a divorce and that he thought he and the Wife would “make up.” He testified that he signed the agreement because he “was going along with the program” but that “I didn’t agree.” He also stated that he had not consulted with his attorney before signing the agreement.

The mediator told the court that each party was represented by counsel at the mediation conference. He explained the negotiations that took place and stated that the Husband asked and got answers to his questions. He added that the Husband did not appear to be confused in any way and that he had “no doubt” the Husband understood what he was signing.

The attorney who represented the Husband at the mediation conference testified that she discussed the details of the settlement proposals with the Husband to make sure there were no misunderstandings. The parties agreed to the wording in the agreement that the Wife would be responsible for making the mortgage payments and would make a good faith effort to refinance the home. The good faith language was used because the parties recognized refinancing might not be possible. The attorney added that she went through the agreement with the Husband “word-for-word” and had “no doubt” that he understood the agreement.

The trial court expressed concern about the refinancing language, stating “[i]t’s not language that I particularly like. It’s language that should have said that there is an alternative, should she be unable to refinance.” In its written order, the trial court determined “that the Husband understood what was taking place at the mediation and understood the agreement.” However, the court found that the refinancing provision was unfair to the Husband and that he was under duress “on this one issue.” The court added that the parties intended that the home would be sold if the Wife could not refinance it. The court ordered the Wife to refinance the home and directed that if she did not obtain refinancing within ninety days after entry of the final judgment of dissolution, the home “shall be sold.”

The Wife argues that no evidence supported the findings of duress and intent or otherwise supported the relief ordered by the trial court. Thus, she contends, the trial court erred by rewriting the agreement and by failing to enforce the parties’ agreement.

Florida Rule of Civil Procedure 1.540 “provides the framework for challenging settlement agreements entered into after the commencement of litigation and utilization of discovery procedures.” Macar v. Macar, 803 So.2d 707, 713 (Fla.2001); see also Fla. Fam. L.R. P.12.540. Rule 1.540(b) provides in pertinent part as follows:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

Although the trial court focused on unfairness and duress to grant relief to the Husband, the evidence simply does not support any of the grounds available for relief under rule 1.540(b).

Even if the court is correct that the refinancing provision is unfair to the Husband, this does not provide a legal basis for the court to rewrite the parties’ agreement or to set it aside. “Bad domestic bargains-meaning unfair or unreasonable property and monetary settlement agreements-are nevertheless enforceable so long as they are knowing, voluntary and not otherwise against public policy.” Petracca v. Petracca, 706 So.2d 904, 911 (Fla. 4th DCA 1998); see also Wells v. Wells, 832 So.2d 266, 269 (Fla. 4th DCA 2002) (“[T]he agreement settling the dissolution of marriage litigation was not subject to a ‘fair and reasonable’ inquiry by the court.”). Further, rule 1.540 “is not intended to relieve a party from its own tactical mistakes.” Fla. High Sch., Activities, Inc. v. Latimer, 750 So.2d 762, 763 (Fla. 3d DCA 2000).

Regarding duress, it “is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.” Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928); Cooper v. Cooper, 69 So.2d 881, 883 (Fla.1954) (quoting Herald). Here, no evidence supports the conclusion that the Husband was under duress in executing the agreement or the refinancing provision. Rather, the evidence reflects that the Husband did not want to get divorced and that he had misgivings about the agreement and how it would impact him. As the trial court found, the Husband understood the agreement and what took place at the mediation conference.

Finally, the evidence does not support the trial court’s conclusion that the parties intended to sell the home if the Wife could not obtain refinancing. Instead, the evidence and the mediation agreement reflect that the parties agreed the Wife would be the primary residential parent for the minor children and would take title to the home. The Husband would vacate the home about one month after the date of the agreement. The Wife would be responsible to pay the mortgage and would hold the Husband harmless for the mortgage payments. The parties agreed the Wife would make a good-faith effort to refinance the home, but they recognized that the Wife might not be able to obtain refinancing. The evidence does not reflect that the parties ever discussed or sought to address in the agreement the possibility of selling the home if refinancing were not available.

Because the Husband failed to present any legal grounds for relief from the mediation agreement, the trial court should have enforced it in its entirety and should not have modified its terms. Accordingly, we affirm the trial court’s order to the extent it grants the motion to enforce, but we reverse to the extent the order finds the Husband was under duress and revises the agreement to provide for sale of the marital home in the event the Wife is unable to refinance. We remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

WHATLEY, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . Pursuant to this court's earlier order in this matter, we review the Wife's appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B) because the order is functionally equivalent to an interlocutory injunction.

      . The mediator testified without objection and without any party asserting confidentiality as to the mediation communications. See § 44.405, Fla. Stat. (2005).

      . The Husband waived the attorney-client privilege, enabling the attorney to testify at the hearing. That attorney did not represent the Husband at the hearing and does not represent him in this appeal.


text:
    Sheldon K. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2461.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
   PER CURIAM.

Sheldon K. Taylor challenges the denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order because Taylor’s motion is facially insufficient. See Gilbert v. State, 805 So.2d 70 (Fla. 2d DCA 2002); Colosimo v. State, 775 So.2d 352 (Fla. 2d DCA 2000). However, our affirmance is without prejudice to Taylor’s right to file a facially sufficient rule 3.800(a) motion.

Affirmed.

CASANUEVA, STRINGER, and WALLACE, JJ., Concur.


author: DAVIS, Judge.

text:
    Richard D. BUDD, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2520.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2006.
   DAVIS, Judge.

Richard D. Budd challenges the postcon-viction court’s denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of his first two claims without comment, but we affirm in part and reverse in part the denial of his remaining claim.

Budd argues that counsel was ineffective for failing to object to two scoresheet errors. First, Budd argues that his primary offense is incorrectly scored. The postcon-viction court was correct to deny this portion of the claim as successive, and we affirm without comment.

Second, Budd argues that he was scored eighteen community sanction violation points when he should have only received six because he only violated a community sanction once. According to Florida Rule of Criminal Procedure 3.703(d)(17), six community sanction violation points must be assessed for each successive violation that follows a continuation of supervision or the modification or revocation of it. However, the violation of multiple conditions or counts of a single community sanction does not constitute “successive violations” within the meaning of the rule. See Williams v. State, 720 So.2d 590, 591 (Fla. 2d DCA 1998).

The State candidly concedes the score-sheet error. Because the record does not conclusively show that the same sentence would have been imposed, particularly where the lowest permissible prison sentence was previously imposed, we reverse and remand for the postconviction court to resentence Budd pursuant to a corrected scoresheet. See State v. Anderson, 905 So.2d 111, 118-19 (Fla.2005).

Affirmed in part, reversed and remanded in part.

ALTENBERND and WHATLEY, JJ., Concur.


text:
    Arron FELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1391.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant entered a no contest plea in two separate cases charging robbery with a deadly weapon while wearing a mask and attempted robbery with a deadly weapon. He was duly sentenced and filed a timely rule 3.800(b)(2) motion to correct sentencing errors. Because the trial judge entered no ruling on his motion within the time prescribed by rule 3.800(b)(1)(B), the motion is deemed denied. He appeals.

We accept the State’s concession of error as to the first issue. We agree that the 10-year minimum mandatory provision on the robbery charge in the second ease (number 2002-2571 CF) was not pronounced at sentencing, and consequently the written sentence is in error. We strike the minimum mandatory provision from the written sentence.

As to the second issue, the trial court imposed prosecution and investigating costs in favor of the Sheriff. The State also correctly concedes that this was error. To impose costs under section 938.27, Florida Statutes (2003), the agency expending the costs must specifically request reimbursement and provide documentation to the court. Ortiz v. State, 884 So.2d 77, 78 (Fla. 2d DCA 2004). No such request or documentation was made or provided. We therefore reverse the imposition of these costs.

STONE, POLEN and FARMER, JJ., concur.


text:
    INVERRARY GARDENS CONDOMINIUM I ASSOCIATION, INC., Appellant, v. Nancy SPENDER, Appellee.
    No. 4D05-3810.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Robin F. Frydman of Law Offices of Robin F. Frydman, Hollywood, for appellant.
    Caryn Goldenberg Carvo of Carvo & Emery, P.A., Fort Lauderdale, for appel-lee.
   SHAHOOD, J.

This is an appeal by Inverrary Gardens Condominium I Association, Inc. (“Association”), from the non-final order of the trial court granting plaintiff Nancy Spender’s motion to compel arbitration of Count I of her amended complaint. We reverse and remand.

In 1993, Spender entered into an employment contract with the Association to be its manager. The contract provided for a two-year term of employment. It was renewed several times and was last set to expire on March 16, 2003. The contract included an arbitration clause that provided as follows:

It is hereby agreed by both parties that any disputes which may arise out of this contract will be submitted to binding arbitration, as a final solution. All attorney’s fees and arbitrations [sic] costs, on both sides for such disputes will be absorbed by the condominium association.

In December 2001, Harry Ward, a director of the Association, filed suit in Bro-ward County Circuit Court seeking a temporary injunction and appointment of a receiver. Ward alleged that the Association, under Spender’s management, was engaged in acts of gross mismanagement, neglect, fraud, and dishonesty. Ward obtained an ex parte order issuing an injunction and appointing a receiver, Robert Goldstein. The order barred Spender and everyone employed by the Association from access to the Association premises without the permission of the receiver or court order.

Spender filed a complaint, which she subsequently amended, against the Association, Ward, and Goldstein. Count I alleged breach of contract against the Association. Count II alleged defamation against all defendants for having stated that Spender was dishonest, irresponsible, incompetent, and had engaged in fraud. Spender also served a request to produce and filed a notice of demand for jury trial.

Thereafter, Spender filed a motion for partial summary judgment on the breach of contract count. After a hearing, the trial -court entered partial summary judgment in favor of Spender.- The court found that there was no genuine issue of material fact, and that Spender had been terminated involuntarily. The partial summary judgment ordered the Association to pay Spender the sum of $95,011.44.

After obtaining the partial summary judgment, Spender took action to execute upon it. She obtained writs of garnishment on several banks. She served a request to produce in aid of execution. She scheduled a deposition in aid of execution and served a subpoena on a third party witness. She filed a motion to compel, motion for contempt, and motion for sanctions against a third-party witness, and obtained an order compelling discovery and awarding sanctions. She also filed a motion for appointment of a receiver to aid in execution upon judgment.

The Association appealed the partial final summary judgment in favor of Spender on the breach of contract count. This court reversed and remanded. Inverrary Gardens Condo. I Ass’n v. Spender, 898 So.2d 1206, 1207 (Fla. 4th DCA 2005). Subsequent to remand, Spender filed a motion to compel arbitration of the breach of contract claim. The trial court granted the motion, resulting in the present appeal.

The issue for review is whether the trial court erred when it determined that Spender’s claim should be arbitrated. The Association urges this court to reverse the trial court’s order granting Spender’s motion to compel arbitration. The Association contends that despite knowing of her right to arbitrate prior to initiating the suit, Spender waived arbitration by actively participating in the litigation and taking action inconsistent with a desire to arbitrate. We agree.

“A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right.” Breckenridge v. Farber, 640 So.2d 208, 211 (Fla. 4th DCA 1994)(citing Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911, 915 (Fla. 3d DCA 1966)). “The question of waiver is one of fact, reviewable for competent substantial evidence. All questions about waivers of arbitration should be construed in favor of arbitration, rather than against it.” Doctors Assocs., Inc. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005) (citations omitted).

In Hough v. JKP Development, Inc., 654 So.2d 1241 (Fla. 3d DCA 1995), the Third District addressed a claim that a party had waived its right to arbitration. Prior to moving to compel arbitration, the plaintiff in Hough filed the action without requesting arbitration, and filed various responsive and other pleadings. 654 So.2d at 1241. The court of appeals concluded that the plaintiff had actively litigated at the trial level. Id. at 1242. The court held that by such action, combined with its failure to request arbitration at the time of filing suit, plaintiff had waived its contractual arbitration rights. Id.

The Association further argues that Spender waived arbitration by filing and prosecuting a motion for summary judgment. This court has previously found the bringing of a motion for summary judgment on the merits inconsistent with a party’s right to arbitrate. See Summit Brokerage Servs., Inc. v. Parker, 912 So.2d 41, 42 (Fla. 4th DCA 2005). In Summit, the defendant filed an answer with affirmative defenses that contained no reference to arbitration. 912 So.2d at 42. He also filed a motion for summary judgment on the merits and asked the court to reserve jurisdiction to award attorney’s fees. Id. After six months of litigation, he moved to dismiss for lack of subject matter jurisdiction pursuant to an arbitration clause in the parties’ contract. Id. The trial court granted the motion. Id. This court reversed and remanded, finding that the defendant had actively engaged in the litigation, and that his actions were inconsistent with a claim for arbitration. Id.; see also Woodall v. Green Tree Fin. Servicing Corp., 755 So.2d 681, 682 (Fla. 4th DCA 1999) (holding that filing a motion for summary judgment on the merits and affidavits on the facts operated as waiver of party’s right to arbitrate).

In this case, Spender’s failure to request arbitration at the time she filed suit indicates that she waived this contractual right, as does her filing of a motion for summary judgment on the merits. Furthermore, Spender litigated this action for a considerable length of time before seeking arbitration. In Hough, only eight weeks passed between the time the suit was filed and the time the plaintiff moved to compel arbitration. 654 So.2d at 1242. In this case, that time period is over two and one-half years, during which time Spender filed an amended complaint, obtained partial summary judgment, took steps to execute on that judgment, had summary judgment reversed by this court, engaged in discovery, and filed other motions. We also note that when the trial court saw the arbitration clause in the Agreement at a previous hearing in this case and asked why the matter was not in arbitration, Spender’s counsel informed the court that arbitration had been waived by both sides.

Spender claims that her actions in the litigation to this point were based upon the mistaken belief that the Association did not wish to arbitrate and intended to waive its right to arbitration. Spender contends that both parties’ mutual mistakes regarding waiver of arbitration operate to prevent her waiver of arbitration in this case. We find this argument to be without merit.

Based on all of the foregoing, we hold the trial court erred in granting Spender’s motion to compel arbitration. We reverse and remand in accordance with this opinion.

Reversed and Remanded.

FARMER and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Frances DONOHUE, Appellant, v. Richard BRIGHTMAN, Jr., Appellee.
    No. 4D05-3711.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Gerald S. Lesher, Edna L. Caruso and Dirán V. Seropian, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

Frances Donohue appeals a final judgment denying her claims for declaratory relief and the imposition of a constructive trust on the condominium unit titled in the name of her nephew, Richard Brightman, but in which she has lived for the past fifteen years and paid half of all expenses. Although she obtained a default against her nephew, who never answered the complaint, the court denied her motion for final judgment and required a full trial. We reverse, as Frances was entitled to a default final judgment.

Frances filed a complaint against Brightman, seeking a declaratory judgment and a constructive trust. In the complaint she alleged that her husband, Joseph Donohue, leased a condominium unit in 1988. The owner wished to sell the unit and contacted Frances and Joseph about the prospect of purchasing the property. According to the complaint, the Do-nohues and their great-nephew Brightman agreed to purchase the property together. Brightman was extremely close to the Do-nohues, who treated him like a son.

Shortly before the closing of the transaction, Brightman convinced the Donohues that he should take title to the property alone, and that he would hold their interest in trust for them. The Donohues were to put up half the cash needed to close, and thereafter they would pay half of the mortgage payment, taxes, maintenance and assessments to Brightman. The Donohues would remain in sole possession of the condominium unit and would pay for all repairs. In the event that they vacated the property, the condo would be sold and the net proceeds would be divided one-half to Brightman and one-half to the Dono-hues.

From the date of the closing until 2004, the Donohues paid Brightman one-half of the mortgage payments, taxes, maintenance and assessments. However, in April 2004, after the death of Joseph Do-nohue, Frances Donohue learned that Brightman was in default on the mortgage. On April 10, 2004, Frances brought the mortgage current and continued to pay the mortgage payments directly to the bank. She attempted to contact Brightman concerning the mortgage, but he would not respond.

Frances discovered that Brightman intended to sell the property and use the proceeds from the sale to pay his federal tax lien. According to the complaint, Brightman had no intention of sharing the proceeds of the sale with Frances. The complaint noted that Frances was “unsure of her rights” and in count I she sought a declaratory judgment to determine her interest in the property. Frances sought a “one-half undivided interest in the property.”

In count II, Frances sought a constructive trust over one-half of the property. She alleged that she lacked an adequate remedy at law and that she had clean hands. Frances alleged that Brightman breached his fiduciary duties as a trustee by: 1) not making mortgage payments from funds, she paid to him; 2) allowing her interest in the property to become encumbered with a federal tax lien for Brightman’s personal tax liabilities; and 3) attempting to sell the property and divest her of her equitable interest in the property-

Brightman never filed any responsive pleading to the complaint. Frances moved for an entry of default by the clerk. Shortly thereafter, the clerk entered a default against Richard Brightman for failure to serve a pleading. Frances filed a motion for final judgment after default. In support of Frances’ motion for final judgment, she filed the affidavit of Sherlyn Brightman, Brightman’s ex-wife, who was married to him at the time of the condo purchase. The affidavit essentially confirmed the allegations of the complaint. Despite the clerk’s default and the failure of Brightman to file any paper or pleading in the case, the court denied the motion for final judgment. Nevertheless, no answer was ever filed by Brightman nor any other paper except for a letter to the judge requesting that the case be excused from the standard pre-trial mediation, which the court granted.

Despite the default and Brightman’s failure to answer the complaint, the court still conducted a full trial on the matter. At trial, Frances’ counsel again informed the court of the default. During Frances’ case-in-chief, she and three other witnesses testified to numerous instances in which Brightman had acknowledged making the oral agreement concerning the property. Brightman’s testimony did not rebut the existence of the oral agreement, as he failed to testify to his version of events. Rather, Brightman briefly took the stand merely to authenticate certain documents, and then argued that title to the property was in his name alone. Nevertheless, despite the default and the un-contradicted testimony concerning the oral agreement between the parties, the trial court entered judgment for Brightman. Frances appeals.

We reverse because the court erred in entering judgment for Brightman when he had been defaulted in the proceeding, and no motion was made to set aside the default or even to answer the complaint. Pursuant to Florida Rule of Civil Procedure 1.500(a), Frances had obtained a default against Brightman for failure to answer the complaint. A default terminates the defending party’s right to further defend, except to contest the amount of unliquidated damages. Kaplan v. Morse, 870 So.2d 934, 936 (Fla. 5th DCA 2004); see also Henry P. Trawick, Jr., Florida Practice and Procedure § 25-2 (2005 ed.). When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint. State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1072 (Fla. 4th DCA 2001). “[T]he entry of default precludes a party from contesting the existence of the plaintiffs claim and liability thereon. Thereafter, a party has the right to contest damages caused by the party’s wrong but no other issue.” Fla. Bar v. Porter, 684 So.2d 810, 813 n. 4 (Fla.1996) (citations omitted).

Unless the court set aside the default, which it did not, Frances was entitled to rely on it as to the material allegations of her complaint, and Brightman was not entitled to contest Frances’ claim. We are completely perplexed as to why the court denied the motion for entry of a default judgment and permitted Brightman to offer any evidence contesting Frances’ claim when he never moved to set aside the default or even to file an answer to the complaint.

The complaint did not request unliqui-dated damages. Therefore, the default cut off Brightman’s right to defend the allegations and claims for relief. Frances did not have to offer proof of her claim, but the proof she offered was overwhelming.

Because Brightman was defaulted in these proceedings, the court erred in entering judgment in his favor. We reverse and remand for entry of a final judgment in her favor.

KLEIN and GROSS, JJ., concur.


author: KLEIN, J.

text:
    Courtney DEMPSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4380.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Tara A. Finnigan, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant and a co-defendant were convicted of attempted murder of a police officer, four counts of robbery with a firearm, and attempted robbery with a firearm. The written instructions given to the jury stated that the state had to prove that a co-defendant, James Womack, “and/or Courtney Dempsey” committed the elements of the crimes. This was apparently an inadvertent error because appellant had objected to the “and/or” language, and the court had modified the oral instructions so that they did not suffer from this infirmity. Because we conclude that the written “and/or” instructions were error, we reverse for a new trial.

The evidence showed that appellant and Womack committed an armed robbery of several victims and, during a subsequent high speed chase, shots were fired at an officer who was pursuing them. It appeared from the evidence that the shots were fired from the passenger side of the vehicle by Womack while appellant was driving. Appellant and Womack were tried together, before separate juries. During the jury instruction conference the court agreed not to use “and/or” instructions, after an objection was made; however, the written instructions given to the jurors were not modified. For example, the court gave the following written instruction pertaining to attempted first degree murder with a firearm to the jurors:

Before you can find the defendants guilty of Attempted First Degree Murder with a Firearm the State must prove the following four elements beyond a reasonable doubt:
1. James Womack and/or Courtney Dempsey did some act intended to cause the death of Leif Broberg that went beyond just thinking or talking about it.
2. James Womack and/or Courtney Dempsey acted with premeditated design to kill Leif Broberg.
3. The act would have resulted in the death of Leif Broberg except that someone prevented James Womack and/or Courtney Dempsey from killing Leif Broberg or they failed to do so.
4. In the course of committing the Attempted First Degree Murder, James Womack and/or Courtney Dempsey carried a firearm ...

The written instructions for all of the other crimes charged also contained the “and/or” language.

Before we reach the merits we address the preservation issue. Appellant has assumed that his trial counsel, Ms. Whitfield, failed to object to the “and/or” instructions and argues that the error is fundamental. The record, however, is to the contrary. The objection was first raised by counsel for co-defendant Wom-ack, who explained why “and/or” instructions were incorrect. He then stated “I’m sure that Ms. Whitfield would like that for her client as well.” At that point the court interrupted with a question and, for the moment, disagreed with counsel. Several pages later in the transcript Ms. Whitfield pointed out to the court that it would be convenient to instruct as to each defendant separately because there were separate juries. The court apparently decided after that comment to not use “and/or” instructions. Although the transcript does not show Ms. Whitfield expressly agreeing with her co-counsel initially, her silence, after co-counsel explained that he was certain he was speaking for her client as well as his, was sufficient to preserve the issue for both defendants. Unfortunately, as we noted earlier, the court changed only the oral instructions.

Under an “and/or” instruction the jury is informed that if defendant A has committed all the elements of the crime, B is guilty without having committed any elements. Or the jury could find both defendants guilty where it found only A committed some elements of the crime and only B committed other elements. We have held that the “and/or” instruction is so seriously flawed as to be fundamental error. Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001); Williams v. State, 774 So.2d 841 (Fla. 2d DCA 2000).

In this case the court gave the principals instruction, standard jury instruction 3.5(a), which explains that if the defendant assisted another person in committing a crime, it is as though the defendant were a principal in committing the crime. The instruction requires that the defendant “had a conscious intent that the criminal act be done.” The “and/or” instructions, however, are of course inconsistent with the principals instruction, because the “and/or” instructions do not require that the defendant intended that the act be done. The principals instruction was given after all of the “and/or” instructions on the elements of the crimes, so the jury could have concluded that appellant was guilty because of the conduct of his co-defendant, before it considered the principals instruction.

An error in the giving of an incorrect jury instruction on the element of a crime is such a serious error that it can be fundamental error. Reed v. State, 837 So.2d 366 (Fla.2002). The “and/or” written instructions in this case, which were incorrect as to the elements which had to be proven by the state for each defendant, require a new trial.

In Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), this court, in a two-to-one opinion, held that “and/or” instructions, given along with a principals instruction, were not fundamental error, even where the defendant was not directly involved in the crimes and could only have been convicted as a principal. Garzon certified conflict with Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), and Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006), in which the courts concluded that the use of the principals instruction does not cure the “and/or” error, and that the error is fundamental. In the event the supreme court reviews Garzon, it may also find it appropriate to determine if the “and/or” instruction, given in combination with a principals instruction, is non-fundamental error. We accordingly certify the following question as one of great public importance:

DOES THE USE OF AN “AND/OR” JURY INSTRUCTION, OVER OBJECTION, IN A CASE INVOLVING CO- DEFENDANTS, CONSTITUTE ERROR REQUIRING A NEW TRIAL, WHERE A PRINCIPALS INSTRUCTION IS GIVEN?

Reversed for a new trial

SHAHOOD and TAYLOR, JJ., concur.