author: MAASS, ELIZABETH T., Associate Judge.

text:
    STATE of Florida, Appellant, v. Toni PAULK, Appellee.
    No. 4D06-374.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   MAASS, ELIZABETH T., Associate Judge.

The state appeals a final order granting Toni Paulk’s motion to dismiss on statute of limitation grounds, contending prosecution was timely commenced. We agree, and reverse.

On December 5, 2001, Paulk was charged by information with grand theft under section 812.014, Florida Statutes (2000), based on an incident alleged to have occurred February 25, 2000. She was incarcerated in New Jersey on an unrelated offense from May 3, 2002 to September 26, 2005. She was arrested on the grand theft charge September 29, 2005, after returning to Florida. On November 9, 2005, she filed a motion to dismiss, arguing that prosecution had not commenced within the statutory five year limitations period. The trial court granted the motion, relying on Brown v. State, 674 So.2d 738 (Fla. 2d DCA 1995), which held that an out-of-state incarceration on an unrelated offense did not excuse a failure to commence prosecution prior to expiration of the statute of limitations or toll its running.

Whether the statute of limitations has run prior to commencement of prosecution requires the computation of two dates: the date the statute of limitations expired and the date prosecution commenced. Section 812.035(10), Florida Statutes (2000), established a five year limitations period for grand theft but tolled its running “during any time when the defendant is continuously absent from the state ... but in no case shall this extend the period of limitation otherwise applicable by more than 1 year.” Here, the statute of limitations expired no earlier than February 25, 2006, because the five year limitations period was tolled for one year due to Paulk’s New Jersey incarceration.

Section 775.15(5)(b) provides that prosecution commences when an information is filed, “provided ... process issued ... is executed without unreasonable delay. ... The failure to execute process on or extradite a defendant in another state who has been charged by information ... with a crime in this state shall not constitute an unreasonable delay.” Under this statute, prosecution is deemed to have commenced even if a defendant has not been served with process before the expiration of the statute of limitations provided an information or indictment has been filed and process executed “without unreasonable delay.” Delay caused by a defendant’s incarceration in another state is not unreasonable.

Section 775.15(5)(b), on its face, addresses only when prosecution is deemed to have commenced where a defendant was not served with process prior to the expiration of the statute of limitations. Here, Paulk was served with process September 29, 2005, prior to the expiration of the limitations period. Even if she had not been so served, under section 775.15(5)(b) the period of her New Jersey incarceration could not contribute to a determination that the delay was unreasonable.

Notwithstanding the clear direction of section 812.035(10), Paulk’s counsel argued to the trial court that under Brown, Paulk’s out-of-state incarceration on an unrelated offense did not toll the statute of limitations or suspend the statutory requirement that process be executed without unreasonable delay.

In Brown, the defendant was accused of theft and forgery occurring between November 3, 1982 and January 21,1983. The applicable limitation periods ranged from one to five years. A capias was issued in April, 1983 but not executed because the defendant was in federal custody, out of state. Brown was not arrested until after he returned to Florida following his release in August, 1992. Under the version of sections 775.15(5)(b) and 775.15(6) then in effect, a defendant’s out-of-state confinement did not excuse the state from serving process within the limitations period or toll running of the limitations period. After Brown, section 775.15(5), Florida Statutes was amended to provide that failure to execute process on or extradite a defendant in custody in another state does not contribute to an unreasonable delay in serving process. See Ch. 97-90 § 1, Laws of Fla. Brown addressed whether prosecution was timely commenced where the limitations period ran prior to service of process. Here, process was served prior to expiration of the limitations period so Brown is inapplicable. In any event, its holding has been superseded by statute. See § 775.15(5), Fla. Stat.

Under section 812.035(10), the statute of limitations was tolled for one year, based on Paulk’s New Jersey incarceration. She was charged by information and served with process prior to expiration of the limitations period. Consequently, prosecution was timely commenced.

We reverse the order granting Paulk’s motion to dismiss and remand the matter for action consistent with this opinion.

Reversed and Remanded.

GROSS and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    George CRIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4987.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2007.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for George Cribbs correctly notes that the trial court granted Cribbs’ motion to correct sentencing error but that Cribbs has not been resentenced as directed by the court. We therefore remand for the trial court to resentence Cribbs in accordance with its previous order.

Cribbs pleaded guilty to the charges of burglary and possession of burglary tools, and he was given concurrent sentences of thirty years in prison as a habitual felony offender and fifteen years in prison as a prison releasee reoffender. In its order granting Cribbs’ motion to correct sentencing error, the trial court correctly found that Cribbs was improperly sentenced to thirty years in prison as a habitual offender for the offense of possession of burglary tools, because this offense is a third-degree felony punishable by ten years in prison under the habitual offender statute. § 775.084(4)(a)(3), Fla. Stat. (2004). The trial court also correctly found that Cribbs was improperly sentenced as a prison releasee reoffender for the offense of possession of burglary tools, because this crime is not a qualifying offense under the Prison Releasee Reoffen-der Act. § 775.082(9)(a)(l), Fla. Stat. (2004). In its order, the trial court directed the State to schedule a resentencing hearing within fifteen days; however, the State failed to schedule such hearing.

Accordingly, we remand this case for the trial court to resentence Cribbs for his offense of possession of burglary tools. Cribbs’ judgments for both offenses and his sentence for burglary are affirmed.

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


author: PER CURIAM.

text:
    Edward COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4508.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Rehearing Denied Feb. 13, 2007.
    Edward Cooper, Florida City, pro se.
    No appearance required, for appellee.
   PER CURIAM.

Affirmed. See Colson v. State, 717 So.2d 554 (Fla. 4th DCA 1998); Fla. R.Crim. P. 3.140(g).

WARNER, GROSS and TAYLOR, JJ„ concur.


text:
    Anne KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1154.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   MAASS, ELIZABETH T., Associate Judge.

Anne Keller appeals from an order denying a case dispositive motion to suppress evidence of drugs found in her purse, arguing that the arresting officer lacked probable cause to conduct a warrantless seizure. We affirm, finding the drugs were in plain view and their incriminating nature was readily apparent, justifying the warrantless seizure.

In the light most favorable to the State, the evidence established that on the afternoon of March 16, 2005 a Broward County Sheriffs deputy was on road patrol when he saw Keller sitting on a ledge in front of a convenience store. The deputy knew the store to have been the site of narcotic offenses in the past. The deputy parked his car, got out, and approached Keller. Her purse was open next to her. The deputy saw a prescription pill bottle in the purse with the name “Eileen Brandt” on it. He asked Keller for identification and she gave him her driver’s license. The deputy noticed that Keller’s name was different than the name on the bottle and asked her about it. Keller told him the bottle was her roommate’s and contained hydroco-done. The deputy removed the bottle from Keller’s purse and called Poison Control to confirm that the pills were hydroco-done. He learned that hydrocodone is a Schedule III narcotic. The deputy read Keller her Miranda rights. Though she invoked them, she told the deputy that she had taken the pills from her roommate and was going to sell them for $3.00 each. Keller was charged by information with trafficking in hydrocodone and possession of alprazolam. She pled no contest to the charges, reserving her right to appeal the denial of her motion to suppress.

Based on these facts, the trial court found that the encounter between Keller and the deputy was consensual and that the deputy had “at the very least, reasonable suspicion to seize the bottle and investigate further.” We agree that the encounter was consensual. See Golphin v. State, 945 So.2d 1174 (Fla. 2006).

In order to seize evidence in plain view without a warrant, a law enforcement officer must have probable cause to believe a crime is being, is about to be, or has been committed. See Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). The incriminating character of the evidence must be immediately apparent. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State v. Neumann, 567 So.2d 950 (Fla. 4th DCA 1990). A container may be seized if its contents are in plain view and provide probable cause for the search. United States v. Blair, 214 F.3d 690 (6th Cir.2000); United States v. Blum, 753 F.2d 999 (11th Cir.1985).

It is unlawful to possess a controlled substance except as authorized by chapter 893, Florida Statutes, the Florida Comprehensive Drug Abuse and Prevention Act (“Act”). § 893.13(6)(a), Fla. Stat. (2005). A consumer who lawfully obtains a controlled substance by prescription is not explicitly authorized to deliver it to anyone else for any purpose. Nonetheless, Keller argues that the deputy lacked, probable cause to believe a crime had been committed when he took the bottle, citing Oliveira v. State, 527 So.2d 959 (Fla. 4th DCA 1988). There, the court suppressed Diazepam found during a search of a semi-conscious driver after a car accident. The officer testified he found what appeared to be “prescription medicine” while looking for the driver’s identification. He seized the pills, to be later tested. This court found that he lacked probable cause for the seizure, since there was no reason to believe the medicine was an illegal substance when he took it. Here, in contrast, the deputy had probable cause to believe, at the time of the seizure, that the drugs were hydro-codone and that they did not belong to Keller.

The Act does not define “possession,” other than to say it - includes temporary possession for the purpose of verification or testing. § 893.02(17), Fla. Stat. (2005). Florida courts have recognized that a controlled substance may not be “possessed,” for purposes of criminal liability, in some circumstances where control over it is exercised temporarily and solely for a legitimate purpose. See Stanton v. State, 746 So.2d 1229 (Fla. 3d DCA 1999); Ramsubhag v. State, 937 So.2d 1192 (Fla. 4th DCA 2006). The question here, though, is whether the deputy had probable cause to believe the bottle contained contraband or was evidence of a crime prior to its seizure. He knew that the bottle did not belong to Keller; that it contained hydro-codone; that Keller was at a location known for drug activity; and that Keller was not engaging in any activity to suggest that her temporary possession of the drugs was for a legitimate purpose. The deputy was not required to anticipate Keller’s defenses. Consequently, we conclude the deputy had probable cause to seize the drugs in plain view.

Affirmed.

GROSS and HAZOURI, JJ., concur.

      . Hydrocodone is both a Schedule II and III substance. See §§ 893.03(2)(a)l.j., 893.03(3)(c)4„ Fla. Stat. (2005). Both Schedule II and III drugs have accepted medical uses but different risks of physical and psychological dependency. Hydrocodone is a codeine derivative pain killer found in Lorcet and Vicodin. See Hayes v. State, 750 So.2d 1 (Fla. 1999).


author: NORTHCUTT, Judge.

text:
    Michael SRAMEK, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4037.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2007.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The circuit court convicted Michael Sra-mek of indirect criminal contempt. We reverse because the order to show cause was not based on a proper affidavit.

The prosecution of indirect criminal contempt is governed by Florida Rule of Criminal Procedure 3.840. Florida courts have held that failure to strictly follow the dictates of that rule is fundamental error. See Cone v. Gillson, 861 So.2d 1210 (Fla. 2d DCA 2003); Mix v. State, 827 So.2d 397, 399 (Fla. 2d DCA 2002); Hunt v. State, 659 So.2d 363, 364 (Fla. 1st DCA 1995). Moreover, the fact that a defendant has already served his sentence does not render his appeal moot. Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003).

Rule 3.840(a) states:

Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.

(Emphasis supplied.) Many cases hold that a conviction for indirect criminal contempt must be reversed where there has been a defect in the affidavit supporting the show cause order. See Mix, 827 So.2d at 399 (reversing an adjudication for indirect criminal contempt because the basis of the order to show cause was an unsworn motion); Proctor v. State, 764 So.2d 752, 753 (Fla. 2d DCA 2000) (same); Hill v. State, 643 So.2d 1178 (Fla. 2d DCA 1994) (finding fundamental error where the affidavit in support of the order to show cause failed to state facts supporting contempt); Giles v. Renew, 639 So.2d 701, 702-03 (1994) (same); Hunt, 659 So.2d at 364 (reversing order of indirect criminal contempt when the show cause order was supported by an unsworn police report).

In this case, an injunction for protection had been entered against Sramek on November 10, 2004. The injunction prohibited him from contacting the victim either directly or indirectly. Later that month, the victim informed the Avon Park Police Department that Sramek had been leaving voice mail .messages on her telephone. She played the messages for two officers and told them that she recognized the voice as Sramek’s. A friend who also knew Sramek confirmed the identification. Based on this information, the officers filed affidavits asserting that Sramek had violated the injunction. These, in turn, were the bases for the order to show cause why Sramek should not be held in indirect criminal contempt.

Hagan, 853 So.2d at 597, specifically-addressed the rule 3.840(a) requirement that the affidavit in support of the show cause order must be made by a “person having knowledge of the facts.” The affidavit in that case was signed by the investigating officer, not the victim. The Hagan court held that the affidavit was hearsay and that this failure to strictly follow the dictates of rule 3.840 was fundamental error. It reversed Hagan’s indirect criminal contempt conviction. Id.

The Hagan facts mirror the facts in this case. The affidavits filed in support of the order to show cause were not based on the officers’ personal knowledge of the facts, nor did the victim provide a sworn statement. Accordingly, we hold that the failure to abide by rule 3.840 was fundamental error, and we reverse Sramek’s conviction.

Reversed.

DAVIS and CANADY, JJ„ Concur.


author: STONE, J.

text:
    Ric L. BRADSHAW, in his official capacity as Sheriff of Palm Beach County, Petitioner, v. Reginald MICKINS, Respondent.
    No. 4D06-1324.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    R.W. Evans of Allen, Norton & Blue, P.A., Tallahassee, for petitioner.
    Isidro M. Garcia of the Garcia Law Firm, P.A., West Palm Beach, for respondent.
   STONE, J.

We deny this petition for writ of certio-rari filed by the sheriff of Palm Beach County from a circuit court order granting a petition for writ of certiorari filed by former deputy sheriff Mickins, challenging his termination of employment.

Mickins’ termination followed a hearing procedure pursuant to the Career Service Bill, enacted by special act in Chapter 93-367, Laws of Florida (the Act). Termination was recommended based on an internal affairs investigation. After being advised by the sheriff that he was terminated, Mickins appealed to a hearing review board, which conducted an evidentia-ry hearing. The hearing review board upheld the termination, and the sheriff decided the termination would stand. Mic-kins then availed himself of his right to have the termination resubmitted to the original board, now sitting as the termination review board, which again recommended termination. The sheriff, although not bound by the recommendation of the termination review board because the board’s vote was three to two, then fired him.

Mickins sought review in the circuit court, which granted relief to the extent of remanding for the hearing review board to make written findings of fact and conclusions of law. In doing so, the trial court applied our decision in a nearly identical case, where we quashed a circuit court’s order affirming the termination of a former deputy’s employment because the hearing review board’s order failed to include written findings. Harrison v. Neumann, 760 So.2d 1015 (Fla. 4th DCA 2000), rev. dismissed, 816 So.2d 128 (Fla. 2001). In Harrison, we concluded that the circuit court departed from the essential requirements of law by not requiring the board to make findings.

The primary issue here is the sheriffs contention that our earlier precedent in Payne v. Wille, 657 So.2d 964 (Fla. 4th DCA 1995), would require a dismissal by the circuit court for lack of jurisdiction to consider the sheriffs decision. We note that there is no discussion of Payne in Harrison. However, this court’s records in Harrison indicate that we initially followed Payne in that case and that the supreme court, without written opinion, quashed our initial holding that the circuit court lacked jurisdiction.

In Payne, we denied a petition for writ of certiorari challenging the dismissal of a certiorari petition filed by an employee of the sheriffs department, seeking review of the employee’s demotion, where the dismissal was based on a finding that the demotion was an executive action rather than a judicial or quasi-judicial action. This court agreed that the sheriffs action was an executive decision that was not subject to certiorari review.

This court followed Payne in Grob v. Bieluch, 889 So.2d 85 (Fla. 4th DCA 2004) (affirming directed verdict for sheriff in action for breach of contract by lieutenant demoted to sergeant; though career service employees are entitled to hearings under Chapter 93-367, this employee was not because his demotion was not for any disciplinary reason; even if he had been entitled to and timely requested a hearing, he would not be entitled to the relief sought, under Payne, because the sheriff has sole discretion to overrule the findings of the board). See also Vazquez v. Hous. Auth. of City of Homestead, 774 So.2d 813 (Fla. 3d DCA 2000) (denying petition for writ of certiorari, challenging circuit court’s denial of certiorari petition from demotion of at-will employee of local housing authority, where although employee was afforded a hearing and allowed to present evidence and argument before a hearing officer, those voluntary procedures did not convert the decision of the executive director into a quasi-judicial proceeding).

The circuit court in the instant case followed Harrison and, thus, it did not depart from the essential requirements of law. We are not unmindful of our conclusions in Payne that the sheriffs discharge of an employee is executive and not a quasi-judicial decision. Although Payne involved a demotion, and Harrison, as this case, involved termination, we do not deem this distinction sufficient to justify different results. Rather, we note that the Payne issue was not a concern for a board’s failure, as in this case and in Harrison, to make findings of fact. In Harrison, we recognized that the statute mandates that the board make fact findings. We deem this requirement unrelated to the sheriffs right, recognized in Payne, to make an executive decision when the board vote is three to two (as distinguished from four to one or five to zero, in which case it is binding on the sheriff). We conclude that this factor, the failure to make fact findings, distinguishes Harrison from Payne. Therefore, it is not necessary for us to decide whether Harrison, sub silen-tio, receded from Payne.

We do not comment on any ultimate decision that may be made following enforcement of the circuit court order requiring fact findings by the board before final action may be taken by the sheriff.

Denied on the merits.

POLEN and TAYLOR, JJ., concur.

      . The special act provides that the sheriff is bound by the recommendation of the termination review board only if at least four of the five-member board vote to reverse the sheriff's termination decision. See § 2(6)(h) of the Act.

      . The hearing review board had simply agreed with and adopted “some” of the findings of the internal affairs report (which in turn did not make definitive findings), without specifying which ones.

      . Case numbers 4D95-2067 (when this court denied a sheriff’s motion to dismiss an appeal from deputy's termination, the sheriff sought prohibition relief in the supreme court, and the supreme court ordered that the case be transferred to the circuit court) and 4D97-1671 (after trial court dismissed Harrison's certiorari petition on the basis of Payne for lack of jurisdiction to review executive decision, Harrison sought relief here, which this court denied by order. Thereafter, the supreme court issued a peremptory writ of mandamus to the circuit court, directing it to proceed with the case on the merits).


text:
    Alan EGGLESTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4057.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Alan Eggleston, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a rule 3.800(a) motion that alleges where in the record the information regarding jail time can be located and explains how the record demonstrates entitlement to relief. See Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998).

FARMER, SHAHOOD and GROSS, JJ., concur.


text:
    Franklin MULDER, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 4D06-3272.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, for petitioner.
    Judson M. Chapman, General Counsel, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari on .the authority of Lescher v. Department of Highway Safety & Motor Vehicles, No. 4D06-2291, 2006 WL 3733197, *1, 946 So.2d 1140, 1142 (Fla. 4th DCA Dee.20, 2006). As in Leseher, we certify the following question as one of great public importance:

Does the amendment to section 322.271(4), Florida Statutes, which eliminated hardship driver’s licenses effective July 1, 2003, violate the prohibition against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?

WARNER, GROSS and TAYLOR, JJ., concur.


author: STEVENSON, C.J.

text:
    Martin MARTORAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3548.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Rehearing Denied Feb. 13, 2007.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, C.J.

In this appeal, appellant Martin Marto-ral contends that the evidence was insufficient to support a finding that he violated the conditions of his probation and, thus, the order of revocation must be reversed. We agree.

In September 2003, appellant pled no contest to' a charge of dealing in stolen property and was sentenced to three years of probation. A few short months later, an affidavit of violation of probation was filed. After several amendments, it was ultimately alleged that appellant had violated his probation by failing to pay restitution (count I); failing to pay court costs (count II); failing to pay the costs of supervision (count III); changing his residence without the approval of his probation officer (count IV); and possessing cannabis (count V). The trial court found appellant guilty of the violations alleged in counts TV and V and sentenced him to -ten years in prison.

Change of Residence

The appellant’s probation officer testified that the last address the appellant had provided to him was room 104 at the Howard Johnson’s on 2901 Vista Mar Boulevard, Ft. Lauderdale, Florida. Appellant acknowledged that he had given this address to his probation officer and testified that he was, in fact, living there. Appellant admitted, however, that he had changed room numbers at the hotel and indicated that he could not recall whether he had advised his probation officer of this fact. The trial court determined that appellant’s changing rooms within the hotel was a violation of condition k.l. of appellant’s probation, prohibiting the probationer from changing his residence without first obtaining approval from his probation officer. We hold that this was error.

In order to support a revocation of probation, the alleged violation must be both willful and substantial. See, e.g., Robinson v. State, 907 So.2d 1284, 1286 (Fla. 2d DCA 2005). It is the State that bears the burden of proving that a violation is willful and substantial, see Stewart v. State, 926 So.2d 413, 414 (Fla. 1st DCA 2006), and the “willful and substantial nature must be supported by the greater weight of the evidence,” see Robinson, 907 So.2d at 1286. To support revocation, the “deviation [must] be the product of a knowing and willful act by the probationer.” Stevens v. State, 599 So.2d 254, 255 (Fla. 3d DCA 1992). In this case, there was no evidence, circumstantial or otherwise, that appellant was aware that changing rooms within the hotel triggered his obligations regarding a change of address and, thus, no evidence of a “willful” violation.

Possession of Marijuana

With respect to the possession of marijuana charge, the evidence at the VOP hearing established that, on May 22, 2005, Sergeant Cowley and Officer Hippolyte responded to a residence based upon a report regarding illegal narcotics activity. When the officers arrived at the address, they observed appellant and another man sitting in a pick-up truck parked in front of the residence. Appellant was in the driver’s seat. Sergeant Cowley approached the passenger side of the vehicle and, through the open passenger window, observed, in plain view, a baggie of marijuana in a small compartment in the dash above the radio. The marijuana was the same distance from both appellant and the passenger.

As the marijuana was not found on appellant’s person, this case is one of constructive possession. In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of. the drug and the ability to exercise dominion and control over the same. See Snell v. State, 939 So.2d 1175, 1179 & 1179 n. 1 (Fla. 4th DCA 2006).. “When a vehicle is jointly occupied, a defendant’s ‘[m]ere proximity to contraband is insufficient to establish constructive possession.’ ” Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006) (quoting Skelton v. State, 609 So.2d 716, 717 (Fla. 2d DCA 1992)). “Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.” Id.

In the instant case, the State met its burden with respect to the knowledge element of the offense. The officers testified that appellant was in the driver’s seat of the truck and the marijuana was in a compartment in the dash in plain view. The fact that the drugs were openly within appellant’s line of sight is evidence from which appellant’s knowledge of the presence of the marijuana may be inferred. See Brown v. State, 428 So.2d 250, 252 (Fla.1983) (finding fact that drugs were in open view provided evidence ,of knowledge of the same).

This, then, brings us to the matter of dominion and control. Knowledge of the presence of the drugs and the ability to exercise dominion and control over the drugs are not the same thing. See Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994) (recognizing that knowledge and dominion and control are separate elements and stating that “[i]t is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it”). In the case law, the concepts of “dominion” and “control” involve more than the mere ability of the defendant to reach out and touch the item of contraband. Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs. See Torres v. State, 520 So.2d 78, 80 (Fla. 3d DCA 1988) (noting that “[mjere proximity to contraband, without more, is legally insufficient to prove possession”). Cruz v. State, 744 So.2d 568 (Fla. 2d DCA 1999), is illustrative. There, following a traffic stop, a crack pipe was found on the car’s floorboard, in plain view and only four to five inches from the gas pedal. The car had two occupants, Cruz, who was the driver, and a front passenger. The appellate court reversed Cruz’s conviction for possession of cocaine, based on the residue on the crack pipe, holding the evidence was insufficient to establish Cruz had knowledge of and the ability to control the crack cocaine:

The State suggests that since the pipe was so close to Cruz’s feet,. she had dominion and control, and that since it was in plain view, she had the requisite knowledge. However, when the contraband is not on the actual person but is found in a jointly occupied vehicle, knowledge and ability to control cannot be inferred but must be shown by independent proof. See E.A.M. v. State, 684 So.2d 283 (Fla. 2d DCA 1996). The State failed to present such proof, and the trial court erred-in failing to grant the motion for judgment of acquittal as to [the possession of cocaine charge].

744 So.2d at 569.

Unlike Cruz, the case presently before this court does not involve a substantive criminal conviction which requires proof beyond a reasonable doubt. Rather, this case involves a violation of probation which need only be proven by the' preponderance, or greater weight, of the evidence. See, e.g., Humbert v. State, 933 So.2d 726, 727 (Fla. 2d DCA 2006). We hold, however, that, even under this lesser burden of proof, the evidence at the YOP hearing was insufficient to establish appellant’s dominion and control of the marijuana. Nothing in the evidence before the trial court tied the marijuana to appellant as opposed to the passenger. Indeed, the evidence did not establish that the pick-up truck was owned or even regularly driven or used by appellant. Cf. Brown v. State, 428 So.2d 250 (Fla.1983) (holding that where drugs are found in the presence and plain view of the owner or resident occupant of a home, dominion and control maybe inferred). Because the State’s proof in this case relies on the theory of constructive, joint possession, we are obliged to reverse since there was no independent evidence of appellant’s dominion and control over the marijuana.

Reversed and Remanded.

WARNER and TAYLOR, JJ., concur.

      . Although appellant allegedly made some incriminating statements to Officer Hippolyte following his arrest, the trial court found that these statements were subject to suppression as a consequence of the absence of Miranda warnings.


text:
    Paul J. BARCO, Appellant, v. SCHOOL BOARD OF PINELLAS COUNTY, Appellee.
    No. 2D05-4915.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2007.
    Samuel R. Mandelbaum of Mandelbaum, Fitzsimmons & Hewitt, P.A., Tampa, for Appellant.
    Matthew C. Lucas and Brian A. Bolves of Brieklemyer Smolker & Bolves, P.A., Tampa, for Appellee.
   PER CURIAM.

Paul J. Barco appeals the trial court’s order that denied his motion to tax costs. The trial court denied the motion because it was not served within “30 days after the filing of the judgment” in accordance with the initial version of Florida Rule of Civil Procedure 1.525. We affirm the trial court’s order. See Swann v. Dinan, 884 So.2d 398, 399 (Fla. 2d DCA 2004). However, we certify direct conflict with the following decisions: Martin Daytona Corp. v. Strickland Construction Services, 941 So.2d 1220, 1225-26 (Fla. 5th DCA 2006); Byrne-Henry v. Hertz Corp., 927 So.2d 66, 68 (Fla. 3d DCA 2006); Swift v. Wilcox, 924 So.2d 885, 887 (Fla. 4th DCA 2006); and Norris v. Treadwell, 907 So.2d 1217, 1218-19 (Fla. 1st DCA 2005), review dismissed, 934 So.2d 1207 (Fla.2006).

Affirmed; conflict certified.

ALTENBERND, STRINGER, and WALLACE, JJ., Concur.


text:
    Richard HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1802.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Richard Hodges, Polk City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Hodges appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and the order denying his motion for rehearing. We determine the appeal is timely.

In the sixth ground of his motion, Hodge claimed his trial counsel was ineffective for failing to object to the trial court’s use of shackles on him during his trial. In his sworn motion for rehearing, he alleged that he stood in full view of the jury panel, for identification purposes, while shackled. The state asserted only that the record did not support Hodges’ claim; none of the attachments to the order of denial refuted it.

Accordingly, we reverse and remand for further proceedings as to this claim. See Filias v. State, 901 So.2d 1024 (Fla. 4th DCA 2005); Miller v. State, 852 So.2d 904, 905 (Fla. 4th DCA 2003); Cramer v. State, 843 So.2d 372 (Fla. 2d DCA 2003). We affirm as to the remaining grounds for relief.

Affirmed in part, Reversed in part, and Remanded.

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    EROS CORPORATION OF DAYTONA BEACH, INC., a Florida corporation, and Miltos Exarhou, Appellants, v. BURGOYNE PROPERTIES, LIMITED, a Florida limited partnership, by and through its general partner, Commodores Point Terminal Corporation, a Florida corporation, Appellee.
    No. 1D06-5265.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Miltos Exarhou, pro se, for Appellants.
    R. Howard Walton of Lindell, Farson & Pineket, P.A., Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED. See Bouchard v. State, Dep’t of Bus. Reg., 448 So.2d 1126 (Fla. 2d DCA 1984) (holding that the five additional days to perform an act required to be done after service of a document by mail allowed by Florida Rule of Appellate Procedure 9.420 does not apply to the filing of the notice of appeal).

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Christopher MILLENDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4768.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Christopher Millender, pro se, Petitioner.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Christopher Millender is hereby afforded belated appeal from the order denying motion for jail-time credit in Escambia County case number 2004 CF 5818 A. Upon issuance of mandate, 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.

BROWNING, C.J., WOLF and KAHN, JJ., concur.


author: ALLEN, J.

text:
    Kristen MANN and Krystle Chalich, Appellants, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D06-1195.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Rehearing Denied March 2, 2007.
    Peter A. Lynch of Lynch, Farrell & Hetman, PLLC, Albany, NY, for Appellants.
    Mitchell L. Feldman and Michael R. Bermann of Silver, Levy, Feldman & Bass, P.A., Tampa, for Appellee.
   ALLEN, J.

The appellants challenge a summary judgment entered in their negligence action for damages sustained in a vehicular collision, with the trial court ruling that the claim is precluded by the appellee’s sovereign immunity. The appellants sought recovery on the theory that the appellee created a hazardous condition which led to the collision. The appellants further indicated that this involved a hidden danger with an illusion of safety, and that the appellee was aware of the hazard but failed to correct it or to warn of the danger. As explained in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), these assertions encompass an operational-level function to which sovereign immunity does not apply. See also, e.g., City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Polk County v. Sofka, 803 So.2d 751 (Fla. 2d DCA 2001), revietu denied 821 So.2d 300 (Fla.2002). The appellants submitted depositions and affidavits with factual recitations supporting these assertions, and the appellee’s submission of countering affidavits raised a factual dispute which may not be resolved by summary judgment. See, e.g., Moore v. Morris, 475 So.2d 666 (Fla.1985); Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006).

The appealed order is reversed, and the case is remanded.

WOLF, J., and ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Tammy M. AGUILERA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Southern Family Insurance Managers, Inc., Appellees.
    No. 1D06-515.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Tammy M. Aguilera, Tampa, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Thurman v. Fla. Unemployment Appeals Commission, 881 So.2d 89, 91 (Fla. 1st DCA 2004) (explaining that “[s]ection 443.151(4)(b), governing appeals from UAC determinations, does not provide a ‘good cause’ exception that would permit the UAC to accept an untimely filed appeal”); Lopez v. Am. Airlines, 876 So.2d 1217, 1217 (Fla. 3d DCA 2004) (affirming order of UAC dismissing appeal as untimely where Lopez did not file appeal within 20 days of the mailing date of the referee’s decision and “Lopez does not assert that he never received the referee’s decision or that he received it too late to file a timely appeal”).

BROWNING, C.J., WOLF and KAHN, JJ., concur.


author: WOLF, J. ALLEN, J.,

text:
    George BAHADUE, Appellant, v. Shezad SANAULLAH, M.D., Appellee.
    No. 1D06-0605.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      George Bahadue, pro se, Appellant.
    Bruce Alexander Minnick and John Alexander Minnick of Minnick Law Firm, Tallahassee, for Appellee.
   WOLF, J.

This is a timely appeal of a summary final judgment. The issue before us is whether the trial court erroneously granted appellee’s motion for summary judgment by determining no issues of material fact existed. We find that an issue of material fact existed as to the personal liability of appellant. We, therefore, reverse.

On December 13, 2002, appellee filed a complaint against appellant and Integrated Healthcare Resources, Inc. (IHR, Inc.) seeking $31,500.00 for services rendered from October 2001, to March 2002, as a result of an executed agreement under which appellee agreed to serve as Medical Director of the George E. Weems Memorial Hospital Emergency Room. On May 15, 2003, appellant filed an Answer to Complaint in which he denied the defendants were jointly doing business and jointly entered into the contract hiring the appellee.

In the instant appeal, appellee asserts, and appellant concedes, that unpaid fees in the amount of $31,500.00 are due and owing for services rendered. However, the dispute lies over who should be made to pay the fees, appellant or IHR, Inc. In his order granting summary judgment, the trial court based the dismissal on its finding that IHR, Inc. served as a mere paying agent for appellant. However, contrary to such findings, the pleadings, admissions, and affidavits filed in the instant case suggest a material dispute exists over appellant’s personal involvement in the contract.

In the instant case, both appellant’s and appellee’s submissions regarding the extent of IHR’s involvement in the employment contract are conclusory. Conclusory statements alone are insufficient to support the grant of motion for summary judgment. See Verchick v. Hecht Invs., Ltd., 924 So.2d 944 (Fla. 3d DCA 2006) (holding that a trial court could not rely on two individual’s conclusory affidavits proclaiming to be employees of a business).

In addition, the trial court further erred when it concluded that appellant entered into a written employment contract with appellee, alone. A review of the record evidences that none of plaintiffs attachments contain appellant’s signature or any written contracts entered into between appellant and appellee. In fact, the attached documentation appears to be correspondence between appellee and a Lori Bahadue, not appellant, George Bahadue. Further, the documentation does little to define the parameters of the parties’ original employment agreement. For the above reasons, it appears a genuine issue of material fact exists regarding the extent to which appellant is personally liable for the breach of the employment contract.

The summary judgment is REVERSED.

ERVIN, III, RICHARD W., Senior Judge, concurs; ALLEN, J., dissents with opinion.

ALLEN, J.,

dissenting.

Because it does not appear to me that the personal contractual arrangement between the parties to this appeal, as alleged in the appellee’s affidavit, was placed in dispute through any pleading, deposition, answer to interrogatory, admission, affidavit, or other admissible material on file with the trial court, I would affirm the judgment under review.


text:
    Charles Lee FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3190.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Charles L. Floyd, Bonifay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We dismiss the appeal of Charles Lee Floyd from the summary denial of his rule 3.850 motion because it was not timely filed. Had it been timely, however, we would have affirmed the order denying relief because we find no merit to Mr. Floyd’s position.

APPEAL DISMISSED.

GRIFFIN, MONACO, and EVANDER, JJ., concur.


text:
    Darren D. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-4174.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Darren D. Brown, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

In light of the State’s concession on the issue, we grant the petition for belated appeal. A copy of this opinion will be filed with the lower court and be treated as a notice of appeal in accordance with rule 9.141(c)(5)(D), Florida Rules of Appellate Procedure.

SAWAYA, THOMPSON and MONACO, JJ., concur.


text:
    AMERICAN WALL SYSTEMS, INC., Appellant, v. MADISON INTERNATIONAL GROUP, INC., et al., Appellee.
    No. 5D03-2857.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Loreen I. Kreizinger, of Loreen I. Kreizinger, P.A., Ft. Lauderdale, for Appellant.
    Stephen C. Chumbris, and Gerald D. Davis of Holland Knight LLP, St. Peters-burg, for Appellee.
   PER CURIAM.

This matter has been remanded to this court by the Supreme Court of Florida as a result of the quashing of the decision rendered previously in this case. Subsequent to the rendition of the decision by this court, the Supreme Court handed down Wilson v. Salamon, 923 So.2d 363 (Fla.2005), and receded from Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), a decision expressly relied upon by this court in reaching its determination to affirm the trial court.

Upon reconsideration of this case at the direction of the Supreme Court, and in light of Wilson, we have concluded that the dismissal of this cause by the trial court for failure to prosecute was erroneous. We, therefore, reverse the final judgment, and remand for further proceedings.

REVERSED and REMANDED.

PLEUS, C.J., GRIFFIN and MONACO, JJ., concur.

      . See Am. Wall Sys., Inc. v. Madison Int'l Group, Inc., 944 So.2d 172 (Fla.2006).

      . See Am. Wall Sys., Inc. v. Madison Int’l Group, Inc., 898 So.2d 111 (Fla. 5th DCA 2005).


text:
    Harold J. GREER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-396.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Harold J. Greer, Bowling Green, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Harold J. Greer appeals the summary denial of ground three of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his third claim, Mr. Greer asserts that he elected not to testify at his trial based on his counsel’s misadvice regarding the consequences of such testimony. More specifically, he alleges that counsel told him that the State would be allowed to ask him about the facts and circumstances of his prior felony convictions. Having examined the attachments to the trial court’s order, we disagree that they conclusively refute Mr. Greer’s allegation. Accordingly, we remand for an evidentiary hearing on Mr. Greer’s third claim.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.

      . The trial court summarily denied grounds one and two of Mr. Greer’s postconviction motion. He has not appealed those rulings.


text:
    Lloyd DEAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-4463.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Lloyd Dean, Sanderson, pro se.
    No Appearance for Respondent.
   PER CURIAM.

We treat the petition for writ of certio-rari as a notice of appeal, in accordance with rule 9.040(c), Florida Rules of Appellate Procedure. Having reviewed the brief filed by the appellant, and the record brought before us, we conclude that the order denying relief pursuant to rule 3.800(a) was properly entered.

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Gregory A. COTHRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1700.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.

      Gregory A. Cothron, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Gregory A. Cothron, the appellant, was convicted of sexual battery and burglary of a dwelling with a battery in 1990. When he sought review of a denial of his petition for writ of habeas corpus by the trial court, we issued a Spencer order, requiring him to show cause why he should not be denied further pro se access to this Court for any proceeding further attacking the convictions and sentences associated with the subject conviction. We pointed out in our earlier order that his appeal is totally without merit, and constitutes only the most recent of his twenty-six attacks on his judgment and sentence. Mr. Coth-ron’s response to the show cause order shows no reason why the sanction threatened should not be imposed.

Mr. Cothron has seriously abused the trial and appellate processes of both the state and federal judicial systems, and has wasted the finite resources of the courts in his meritless and repetitive assaults on his judgment and sentence. After twenty-six proceedings covering sixteen years, it is clear that this matter must now be laid to rest.

Accordingly:

(1) The order of the trial court denying his petition for writ of habeas corpus is affirmed.

(2) Mr. Cothron is barred from further pro se filings in this Court involving his 1990 case because his pleadings have become an abuse of process. See Criminal Appeal Reform Act of 1996, 924.051, Fla. Stat. (2006) (acknowledging limitations on collateral review to be strictly enforced); Glasco v. State, 914 So.2d 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants); Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough”).

(3) The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Gregory A. Cothron, and any more pleadings or filings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar.

(4) The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See 944.279(1), Fla. Stat. (2006); see, e.g., Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED.

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

      . See State v. Spencer, 751 So.2d 47 (Fla. 1999).


author: PLEUS, C.J.

text:
    Willie J. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3327.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.

      Willie J. Walker, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, C.J.

We affirm the dismissal of the petition for writ of habeas corpus on the ground that it is not an appropriate vehicle for raising issues which could or should have been raised on direct appeal. See Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006).

AFFIRMED.

SAWAYA and MONACO, JJ., concur.


author: BERNSTEIN, SCOTT M., Associate Judge.

text:
    STATE of Florida, OFFICE OF the ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Appellant/Cross-Appellee, v. COMMERCE COMMERCIAL LEASING, LLC, Court Square Leasing Corp., Dolphin Capital Corp., IFC Credit Corp., National City Commercial Capital Corp., formerly known as, Information Leasing Corp., Liberty Bank Leasing, and Preferred Capital LLC, Appellees/Cross-Appellants.
    No. 1D05-2743.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      Bill McCollum, Attorney General, Christopher M. Kise, Solicitor General, and Lynn C. Hearn, and Erik M. Figlio, Deputy Solicitors General, Tallahassee, for Appellant/Cross-Appellee.
    James Bruce Culpepper of Akerman Senterfitt, Tallahassee, for Appel-lees/Cross-Appellants Commerce Commercial Leasing, Dolphin Capital Corporation, National City Commercial Capital Corporation, and Liberty Bank Leasing.
   BERNSTEIN, SCOTT M., Associate Judge.

The Attorney General appeals the dismissal with prejudice of its first amended complaint filed pursuant to the Florida Deceptive and Unfair Trade Practices Act (the Act). The core of the complaint revolves around the activities of the entities known as NorVergence, Inc., and its subsidiary, NorVergence Capital LLC, (collectively, NorVergence). NorVergence sold telecommunications services and rented certain equipment to various small businesses in Florida. As part of this effort, NorVergence induced the small businesses to sign equipment rental agreements. NorVergence then sold the rental agreements to appellees, a large group of leasing companies allegedly acting in concert with NorVergence. Thus, the leasing companies now maintain the right to collect rental payments on the equipment from the small businesses. The Attorney General brought the action on behalf of these small businesses in a two-count complaint seeking declaratory relief, injunctive relief, damages, restitution, and attorneys fees and costs against the appellee leasing companies (but not against NorVergence, now a debtor in an involuntary bankruptcy proceeding in the United States Bankruptcy Court for the District of New Jersey). The trial judge dismissed the first amended complaint for failure to state a claim for relief under Florida Rule of Civil Procedure 1.110. We reverse, finding that the first amended complaint does state a cause of action under the Act.

ALLEGATIONS AGAINST NORVERGENCE

The 25-page complaint alleges: NorVer-gence engaged in a “Ponzi scheme” perpetrated upon small businesses throughout the State of Florida; NorVergence purported to sell a bundled telecommunications services package that included renting an advanced technology device called the Matrix; NorVergence specifically targeted small businesses which did not have in-house counsel or technology personnel capable of evaluating the package; Nor-Vergence falsely claimed the package of services and equipment would “slash” telecommunications costs for the small businesses on landline telephone, cellular telephone and high speed internet services; the rental agreements required rental payments from $5,000 to $70,000 for the Matrix, which NorVergence represented to be a “breakthrough in design;” in fact, the Matrix was decades-old technology with a value between $500-$l,200; NorVer-gence’s only profit-making activity was to procure the rental agreements for the Matrix and then assign the right to receive rental payments under the agreements to the appellee leasing companies in return for a lump sum payment; NorVergence rarely if ever provided actual telecommunications services to the small businesses, but appellees, as assignees of the rental agreements, nevertheless continue to demand rental payments and insurance on useless equipment.

ALLEGATIONS AGAINST APPELLEES

The Attorney General also contends that the appellee leasing companies and Nor-Vergence were so closely allied that appel-lees figured in these deceptive and unfair trade practices and that appellees directly engaged in their own unconscionable acts. For example, the complaint alleges the appellee leasing companies pre-approved each lease and each small business before the small business was permitted to enter into any lease with NorVergence and that each lease was then seamlessly, irrevocably and immediately assigned to appellees. The complaint also claims the leases all contain provisions purporting to waive any objections the small businesses might have to making rental payments for the Matrix, even if the equipment did not work. The complaint then claims appellees knew or should have known that: the Matrix was worth between $500-$l,200; there was a gross disparity between rental payments due from the small business and the value of the Matrix; the rental cost varied dramatically from one rental agreement to the next without explanation; and the small businesses were required to acknowledge the Matrix was in working order before it was even connected. The appellee leasing companies allegedly now hold almost 500 rental agreements with payments due at over $12,000,000 for equipment that is essentially worthless to the small businesses in Florida who are receiving no services.

The complaint also alleges NorVergence provided each small business with a stack of documents, claiming the documents to be an “application” to determine if the small business qualified for services, but that the rental agreement was actually buried within the stack; once one of the appellees approved the credit of an individual small business, NorVergence implemented the rental agreement, delivered the equipment and immediately assigned the rental agreement to that appellee in return for the lump sum payment. The master agreement between appellees and NorVergence even required NorVergence to buy back any rental agreement if the small business did not make the first three lease payments timely.

The allegations in the first amended complaint encompass multiple theories of recovery. The first component of Count I alleges that it is unlawful under section 501.204, Florida Statutes (2004), to enforce unfair and unconscionable agreements. The complaint pointed first to the price (the equipment rental cost) as an unconscionable term. The complaint also singled out four paragraphs in small print on the reverse side of the leases which the Attorney General also believes make these agreements unconscionable: a so-called hell or high water provision, a free-floating venue provision, a warranty disclaimer provision, and an assignee liability provision. The second component of Count I alleges that it is unlawful under section 501.204, Florida Statutes (2004), to enforce agreements (regardless of any specific term in those agreements) procured through deceptive, unfair and unconscionable acts or practices.

Count II of the first amended complaint then alleged that these equipment rental agreements were for the provision of future consumer services. The agreements allegedly violate Rule 2-18.002, Florida Administrative Code, because they did not contain three-day cancellation provisions, thus constituting a- per se violation of section 501.203(3), Florida Statutes (2004).

The trial court’s order dismissing the first amended complaint did not address all of the legal theories alleged in the complaint. Instead, the trial court found appellees were exempt from the provisions of the Act, that even if appellees were not exempt, specific contract provisions were permitted by law, and that the agreements were not contracts to provide future consumer services. The trial court, however, never addressed liability under the act for deceptive, unfair or unconscionable acts or practices and never mentioned whether the equipment rental cost term was unconscionable or unfair. We address each issue separately.

THE ACT’S BANK EXEMPTIONS

The trial court initially found that appellees were exempt from the Act. Section 501.212, Florida Statutes, provides:

This part does not apply to:
(4) Any person or activity regulated under the laws administered by:
(b) Banks and savings and loan associations regulated by the Office of Financial Regulation of the Financial Services Commission;
(c) Banks or savings and loan associations regulated by federal agencies;....

Based on the above statute, the trial court found that each named appellee was exempt, either because it was a subsidiary of a bank (the dismissal order even discloses the names of the various parent banks) or because it engaged in banking activity. The court also found, apparently as a matter of law, that “financing commercial obligations by banks is an activity regulated by federal agencies, including the FDIC.” The trial court concluded that the activities alleged here were exempt from the Act because they are regulated by state or federal agencies. None of these “findings” by the trial judge include facts contained anywhere within the four corners of the first amended complaint.

It is axiomatic that a trial court must treat all well pled allegations as true when considering a motion to dismiss. Mosby v. Harrell, 909 So.2d 323 (Fla. 1st DCA 2005). Moreover, the trial court must consider only the allegations within the four corners of a pleading to determine whether the allegations state a proper cause of action. Meadows Cmty. Ass’n, Inc. v. Russell-Tutty, 928 So.2d 1276 (Fla. 2d DCA 2006); Int’l Longshoremen’s Ass’n v. Miami-Dade County, 926 So.2d 433 (Fla. 3d DCA 2006); Della Ratta v. Della Ratta, 927 So.2d 1055 (Fla. 4th DCA 2006); Huet v. Mike Shad Ford, Inc., 915 So.2d -723 (Fla. 5th DCA 2005). By venturing outside the factual allegations of the first amended complaint, the trial court here prematurely made findings inappropriate to the motion pending before it. We find the trial court’s order dismissing the first amended complaint would be reversible on this basis alone.

BANK SUBSIDIARIES

We also disagree with the trial court’s apparent conclusion that all bank subsidiaries and all lease financiers are necessarily exempt from the Act. The language of the statute appears only to exempt banks. The logic appears obvious: if a state or federal agency already regulates banks, there is no need for the Act to interfere. It is quite a leap, however, to suggest that, just because an entity is a subsidiary of a bank, it is necessarily exempt from the Act. It is an even greater leap to suggest that, just because lease financing (when conducted by banks) is regulated by federal agencies, that all lease financing is therefore regulated, even when conducted by non-banks. There was no evidence in the record, and certainly no allegation within the four corners of the pleading pending before the trial court, that the specific activities here were regulated by any other state or federal agency so as to avoid proscription as a deceptive or unfair trade practice.

THE ACT’S CONSUMER DEFINITION

The trial court also found the equipment rental leases here were not “consumer leases” under section 680.1031(e), Florida Statutes (2004), because the leases ■ were not for “personal, family, or household purposes.” The trial court’s focus here is clearly misplaced. While section 680.1031, Florida Statutes, does define consumer leases under the Uniform Commercial Code, the FDUTPA statute provides its own definition for the term “consumer;” however, the trial court used the definition section from section 680.1031, Florida Statutes, and applied it to the FDUTPA statute when the statute in question provided the necessary definition. There was no basis in law to do so. See DuFresne v. State, 826 So.2d 272, 275 (Fla.2002) (holding that, in the absence of a statutory definition, a court may resort to related statutory definition). The Act simply is not limited to contracts for “personal, family or household purposes” as defined in the Uniform Commercial Code.

ALLEGATIONS OF DECEPTIVE AND UNFAIR TRADE PRACTICES

The trial court then went on to find that, even if the appellees were not exempt, the activities and contract terms complained of were permitted by Florida law. The trial court’s order dismissing the complaint never discusses alleged unconscionable trade practices and never discusses the alleged unconscionability of the equipment rental cost term at all. The order does, however, analyze the four specific contract terms mentioned on the reverse side of the leases. We find the trial court’s analysis focused too narrowly on these four lease provisions only and ignored the remaining allegations of the first amended complaint.

The Act provides that “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” § 501.204(1), Fla. Stat. (2004). As we explained in State, Office of Attorney General, Department of Legal Affairs v. Wyndham International, Inc., 869 So.2d 592 (Fla. 1st DCA 2004), the issue when considering a claim under the Act is whether the alleged practice was “likely to deceive a consumer acting reasonably in the same circumstances.” Id. at 598. We also noted that:

A deceptive or unfair trade practice constitutes a somewhat unique tortious act because, although it is similar to a claim of fraud, it is different in that, unlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue.

Id. at 598. Therefore, in order to assert a proper claim under the Act, the Attorney General had to allege appellees engaged in unconscionable, unfair or deceptive acts or practices likely to deceive a consumer acting reasonably under the circumstances. The first amended complaint asserts that the various small businesses were victims of a Ponzi scheme, that they were targeted specifically because they were technically unsophisticated, that they were sold grossly overpriced goods, that the agreements failed to disclose they were being simultaneously and immediately assigned, that ap-pellees knew the consumers were not receiving actual telecommunications services, that appellees required consumers to maintain insurance on equipment based on inflated prices, and that appellees accepted delivery letters from consumers, which triggered payment responsibilities, despite having actual knowledge that the equipment had not been delivered in working order. The count specifically alleges these practices are likely to mislead consumers acting reasonably under the circumstances. Count I of the first amended complaint clearly states a cause of action premised on alleged “unconscionable acts or practices” and alleged “unfair or deceptive acts or practices in the conduct of trade or commerce,” regardless of the terms in any specific contract provision.

SUBSTANTIVE CLAUSES

The Attorney General also alleges that four specified terms in the lease agreements are facially unconscionable and therefore violate the Act. These specified terms are a “hell or high water” clause under Florida’s Uniform Commercial Code, a free-floating venue provision, a waiver of rights upon equipment failure, and an express waiver of defenses against assignees of rental agreements. The trial court determined that all of these terms are permitted by Florida law and therefore fall within a statutory exception to the scope of the Act. Section 501.212(1), Florida Statutes, exempts from liability acts or practices “required or specifically permitted by state or federal law.” The purpose of the statute is obvious: it would be unacceptably inconsistent for one statute to penalize conduct mandated elsewhere.

It is not clear whether the trial court was correct to find each of these provisions is permitted by Florida law and thus exempt from the Act. However, we need not reach this issue. Even if each of these provisions were exempt, there are other allegedly unconscionable contract provisions which are sufficient to state a cause of action under the Act. The trial court was simply incorrect to dismiss Count I of the first amended complaint.

FLORIDA ADMINISTRATIVE CODE

The trial court was correct, however, to dismiss Count II of the first amended complaint. Rule 2-18.002, Florida Ad ministrative Code, Contracts for Future Consumer Services, requires a three-day right of cancellation in bold-faced, 10 point type in all contracts for consumer services to be rendered in the future. Failure to include this provision in applicable contracts is a per se violation of the Act, section 501.203(3), Florida Statutes (2004).

The complaint clearly alleges NorVer-gence engaged in a scheme which involved future consumer services — the offer to provide ongoing telephone and internet services. The complaint also alleged the appellee leasing companies were a critical part of NorVergence’s Ponzi scheme. Yet the Attorney General only alleges liability in Count II based on one part of the scheme — the leases for the Matrix equipment. These leases do not themselves promise to provide any services, now or in the future. Rule 2-18.002, Florida Administrative Code, only requires a three-day cancellation notice on that portion of the scheme which purports to provide future consumer services. No party argued whether any other documents signed by the small business consumers promised to provide future consumer services, yet failed to contain the three-day notice. The Matrix leases, however, do not promise to provide future consumer services, so there was no requirement they contain a three-day notice. The trial court was correct to find Count II failed to state a cause of action.

We note the trial judge dismissed the first amended complaint “with prejudice;” however, the trial court should not have precluded possible amendment to Count II. Based on the totality of the circumstances already alleged, we cannot now declare it would be “futile” to attempt to assert a cause of action premised on Rule 2-18.002, Florida Administrative Code, Contracts for Future Consumer Services. Thus while we agree Count II as currently worded fails to state a claim for relief, we reverse that portion of the trial court’s order dismissing Count II “with prejudice.”

The order dismissing the first amended complaint is reversed, and this case is remanded to the trial court for further proceedings.

PADOVANO and POLSTON, JJ„ concur.

      . The trial court found, and we agree, that NorVergence is not an "indispénsable" party to this litigation. See State, Dep’t of Health & Rehabilitative Servs. v. State, 472 So.2d 790 (Fla. 1st DCA 1985); Phillips v. Choate, 456 So.2d 556 (Fla. 4th DCA 1984). A complete determination of a' case cannot be had without an indispensable party. The question here is not whether the action may proceed efficiently without NorVergence but whether the action can proceed at all without NorVer-gence. This matter certainly can proceed without NorVergence to a complete determination of the issues against the appellees. Therefore, NorVergence is not an indispensable party.

      . Whether a complaint is sufficient to state a cause of action is an issue of law, subject to a de novo standard of review. Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235 (Fla. 1st DCA 2000).

      . See, e.g., Preferred Capital, Inc. v. Sarasota Kennel Club, 2005 WL 1799900 (N.D.Ohio), where one of the very same Matrix leases at issue here was declared unenforceable under Ohio law. Preferred Capital (also a named appellee here), as assignee from NorVer-gence, sought to collect lease payments for the Matrix from a Florida small business in an Ohio court, with venue in Ohio based on this same free-floating venue clause. The District Court in Ohio dismissed the action, specifically finding the free-floating venue clause was not enforceable in Ohio, as a matter of law, because it was procured through fraud or overreaching and because litigating in Ohio would be unreasonable and unjust. This provision could just as easily be found unenforceable under Florida law. Moreover, section 680.303(5), Florida Statutes, permits leases to be "transferred,” thus seeming to permit assignments of leases. However, the statute also states that by accepting the transfer, the transferee/assignee agrees to perform the duties of the transferor/assignor. The challenged contractual provision here, however, appears to relieve the transferee/assignee from performing any of those duties whatsoever. It is not clear whether this statute can be read to "require or specifically permit” this contractual assignment provision, as the trial court found; however, neither of these issues is properly raised at this stage of the litigation.

      . See Spradley v. Stick, 622 So.2d 610 (Fla. 1st DCA 1993) (finding it was abuse of discretion to refuse amendment of pleadings unless amendment would prejudice opposing party, privilege to amend has been abused, or it would be futile). See also CaRR ex. rel. Estate of Grushka v. PersonaCare of Pompano East, Inc., 890 So.2d 288 (Fla. 4th DCA 2004).


text:
    Rudy MALOY, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LEON COUNTY, Florida, Appellee.
    No. 1D05-4445.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      Mark Herron of Messer, Caparello & Self, P.A., Tallahassee, for Appellant.
    D. Andrew Byrne of Cooper & Byrne, PLLC, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Rudy Maloy challenges the circuit court’s entry of summary judgment in favor of Leon County’s Board of County Commissioners (“Board”). Contrary to the trial court’s ruling, we find the doctrine of sovereign immunity does not bar Maloy’s claims. We nevertheless affirm because the underlying Ethics Commission proceeding did not arise out of and in the course of Maloy’s employment with the Board while he served a public purpose.

BACKGROUND

Maloy served as a Leon County Commissioner during all periods relevant to this case. On January 26., 2001, a Leon County citizen, Eugene Danaher, filed an ethics complaint against Maloy with the Florida Commission on Ethics (“Commission”). Danaher accused Maloy of violating the Florida Code of Ethics for Public Officers and Employees. See §§ 112.311-.326, Fla. Stat. (2000). Danaher’s first allegation concerned improper solicitation and acceptance of gifts in violation of section 112.313(2), Florida Statutes:

Commissioner Maloy solicited and accepted a sexual “favor or service” from his aide Ms. Morris which was based on the understanding that his judgment and official action would be based on the continuance of the sexual “favor or service” from Ms. Morris or her employment would be terminated.

Danaher’s second allegation accused Maloy of misusing his public position in violation of section 112.313(6), Florida Statutes:

Commissioner Maloy allegedly corruptly used his official position to obtain a special privilege from his aide in the form of sexual relations.

The complaint also accused Maloy of violating section 112.313(7), Florida Statutes, through an improper conflict with his county commission duties:

Commissioner Maloy allegedly held an explicit [sic] employment relationship with his aide which created a frequently occurring conflict between his public duties and the full and faithful discharge of these duties which he swore under oath to observe.

The Florida Department of Law Enforcement investigated the charges. The Commission found probable cause existed on two of the allegations: (1) soliciting sexually oriented favors from female staff members with the understanding that his official actions or judgment would be influenced; and (2) using his position to engage in sexually or romantically oriented comments, behavior, and/or invitations to female staff members in violation of section 112.313(6). Under the procedures of the Commission, an Administrative Law Judge tried the matter. Maloy prevailed in all respects.

After defeating the ethics complaint, Maloy requested that the Board reimburse the legal fees incurred in defending against Danaher’s allegations. Pursuant to county policy 03-02, the Board considered and denied Maloy’s request for reimbursement.

Maloy then brought this action in circuit court, seeking relief on three counts: (I) reimbursement under county policy 03-02; (II) reimbursement under the common law; and (III) a declaratory judgment as to a public official’s entitlement to have legal fees reimbursed by the public. The trial court found counts II and III barred by the doctrine of sovereign immunity and dismissed them with prejudice. The court then denied Maloy’s motion for summary judgment on count I, finding the behavior at the heart of the ethics complaint did not arise out of and in the scope of Maloy’s employment with Leon County while in his official capacity and while serving a public purpose. Instead, the trial court found the ethics charges arose from:

private, consensual affairs that Maloy had with two women. These affairs occurred both in and out of the office, occurred while one woman was employed by DOT and later by Leon County, and after she left the employ of both, and while one woman was employed by the county, but outside of the office. Nothing in Maloy’s duties for Leon County required him to become involved in such behavior, and it certainly did not serve the public interest or a public purpose.

The trial court found that the Board properly considered and rejected Maloy’s request for reimbursement in accordance with county policy 08-02. Under the trial court’s ruling, the county could have reimbursed Maloy if it chose, but was under no obligation to do so. Accordingly, the trial court entered summary judgment in favor of the Board.

ANALYSIS

We review a grant of final summary judgment de novo. See Spears v. Albertson’s, Inc., 848 So.2d 1176, 1177 (Fla. 1st DCA 2003). Because the trial court dismissed counts II and III on sovereign immunity grounds, we first consider whether public officials have a common law right to have their legal fees paid by the public and, if so, how the doctrine of sovereign immunity applies to a suit seeking to enforce this right.

Our supreme court has enunciated a common law doctrine affording public officials the right to legal representation at taxpayer expense in defending themselves against litigation arising out of their public duties and while serving a public purpose. See Thornber v. City of Ft Walton Beach, 568 So.2d 914, 917 (Fla.1990) (“This entitlement to attorney’s fees arises independent of statute, ordinance, or charter.”); see also Markham v. State, Dep’t of Revenue, 298 So.2d 210, 211 (Fla. 1st DCA 1974) (“Public officers are, of course, entitled to a defense at the expense of the public in a law suit arising from the performance of the officer’s official duties and while serving a public purpose.”); Ellison v. Reid, 397 So.2d 352, 354 (Fla. 1st DCA 1981) (“If a public officer is charged with misconduct while performing his official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct.”); Nuzum v. Valdes, 407 So.2d 277, 279 (Fla. 3d DCA 1981) (“This statute [section 111.07, Florida Statutes (1979) ] recognizes the common law principle that a public, officer is entitled to representation at the public , expense in a lawsuit arising from performance of .official duties while serving a public purpose.”); Lomelo v. City of Sunrise, 423 So.2d 974, 976 (Fla. 4th DCA 1982) (“These cases establish that a municipal corporation or other public body is obligated to furnish or pay fees for counsel to defend a public official subjected to attack either in civil or criminal proceedings where the conduct complained of arises out of or in connection with the performance of his official duties. This obligation arises independent of statute, ordinance or charter. It is not subject to the discretion of the keepers of the city coffers.”). This common law right applies to county officials and to ethics proceedings. See Ellison, 397 So.2d at 354 (finding county property appraiser entitled to reimbursement of legal fees incurred in defending against ethics complaint); see also Thomber, 568 So.2d at 918-19 n. 7 (stating public officials entitled to attorney’s fees under the common law for the successful defense of misconduct charges before the Commission). Public officials seeking entitlement to reimbursement of attorney’s fees must meet a two-prong test: “[T]he litigation must (1) arise out of or in connection with the performance of their official duties and (2) serve a public purpose.” Thomber, 568 So.2d at 917.

Before analyzing the Thomber test, we turn to the sovereign immunity defense adopted by the trial court. Florida’s counties, as divisions of the state, “enjoy[] the state’s sovereign immunity unless the Legislature by a general law provides otherwise.” Arnold v. Shumpert, 217 So.2d 116, 120 (Fla.1968). Only the Legislature has the authority to enact a statute that waives the state’s sovereign immunity. Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 471 (Fla.2005). We are not directed to an historical basis rooted in English or American common law, nor to a statute establishing the principle that obligates the state to reimburse public officials for the successful defense of legal actions that arise out of their official duties while serving a public purpose. The courts of this state have, however, repeatedly characterized this common law principle without voicing any sovereign immunity concerns. See, e.g., Thornber, 568 So.2d at 917; Markham, 298 So.2d at 211; Ellison, 397 So.2d at 354; Nuzum, 407 So.2d at 279; Lomelo, 423 So.2d at 976. As this court must observe the confines of our supreme court precedent, see Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973), we find that sovereign immunity will not bar Mr. Ma-loy’s common law right to have his legal fees reimbursed if accused of “misconduct while performing his official duties and while serving a public purpose.” Ellison, 397 So.2d at 354. We must presume the supreme court would not have articulated such a right if the doctrine of sovereign immunity instantaneously nullified it. Accordingly, we cannot affirm the trial court’s ruling that sovereign immunity bars counts II and III.

We now consider whether Mr. Ma-loy’s alleged misconduct occurred while performing official duties and while serving a public purpose so as to fall under Thomber. Although the trial court did not analyze this question under counts II and III, the court, in essence, performed the analysis under count I.

All of the cases discussing a public official’s right to reimbursement of legal fees arise from an allegation of improper official conduct — that is the very nature of an ethics violation. . It is not the tenor of the conduct, but rather the context of the allegation upon which the Thomber right is based. For example, in Ellison, a former employee of the Palm Beach County Property Appraisers Office filed a complaint with the Commission on Ethics against the county property appraiser. 397 So.2d at 353. The complaint alleged the property appraiser “improperly gave examination papers to his employees while attending a training program sponsored by the Department of Revenue.” Id. The property appraiser successfully defended the charge and sought to include his attorney’s fees in the department’s annual budget. Id. The Auditor General concluded the suit did not involve a public purpose. Id. The circuit court and this court disagreed, finding the alleged impropriety occurred at a training seminar sponsored by the department and that attendance at such events serves a public purpose because property appraisers improve their skills. Id. at 354. Accordingly, this court affirmed a summary judgment order approving inclusion of the legal fees in the department’s budget. Id. One could not argue that helping fellow employees cheat on an exam serves a public purpose. Nevertheless, the accusation in Ellison suggested an ethical violation while the appraiser carried out his public duties and served a public purpose. The specific conduct alleged did not defeat the claim. Instead, we looked to the context of the ethics charges. Under this view, the common law entitled the property appraiser to have his legal fees reimbursed.

In Lomelo, the Fourth District Court of Appeal focused upon the allegations levied against the public official, not simply the underlying conduct of the public official. 423 So.2d at 975-77. There, the state indicted the city mayor for “corruption by threat against a public servant” for interfering in the arrest of a family acquaintance. Id. at 975. The Fourth District Court of Appeal found:

The indictment alleged that in so doing he violated a criminal statute. Obviously he had no right to threaten the officer or the officer’s family. Such conduct would constitute a gross abuse of his power and office. However, he was found innocent of that charge. The remaining facts indicate that he obtained an arrestee’s release by virtue of his power as mayor granted in the city charter. Thus he clearly acted in his official capacity and such actions were authorized by the public body.

Id. at 977 (emphasis added).

In Chavez v. City of Tampa, 560 So.2d 1214, 1215 (Fla. 2d DCA 1990), upon which the trial court relied, a mayoral candidate’s political consultant filed an ethics complaint against a city council member for voting on an issue in which she had a private, pecuniary interest. Although the court found the public official was performing her public duties under the first prong of the common law test, the court found the city council member did not serve a public purpose when she voted on the issue; instead, according to the court, the city council member voted solely in her own financial interest. Id. at 1218. As a result, the Second District found no entitlement to public reimbursement of the city council member’s legal fees. Id.

Under Thomber, a public official is not entitled to taxpayer funded representation simply because an allegation of misconduct arises in the course of his public duties. Rather, the context out of which the alleged misconduct arose must also serve a public purpose. In Ellison, a property appraiser’s participation in a training seminar served a public purpose. In Lomelo, a mayor’s use of his authorized power to release an arrestee served a public purpose. In Chavez, a city council member’s vote, although part of her official duties, served only her private financial interests and not a public purpose.

Mr. Maloy’s conduct in the present case did not serve a public purpose. That is, a public official’s sexual conduct, whether in the form of illicit sexual harassment or consensual relations between adults, and whether occurring inside or outside of the workplace, does not serve a public function. Although cleared of the alleged misconduct, Maloy’s underlying activity did not serve the public interest and the trial court’s ruling correctly reflects this conclusion.

The Thomber test applies to each theory of recovery advanced by Maloy. As Maloy failed to satisfy the public purpose prong of the test, we AFFIRM the trial court’s order.

BARFIELD, ALLEN, and KAHN, JJ., concur.


text:
    Rodney DIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4253.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      Mark J. O’Brien of O’Brien Bower, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm the trial court’s summary denial of Mr. Diggs’ motion for postconviction relief. See Fla. R.Crim. P. 3.850. He could have raised both of his claims on direct appeal. See Johnson v. State, 593 So.2d 206, 208 (Fla.1992).

DAVIS, VILLANTI, and LaROSE, JJ., Concur.


author: VILLANTI, Judge.

text:
    Leroy C. McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2446.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Leroy C. McDonald appeals his conviction and sentence for robbery. McDonald contends that the trial court erred: (1) in denying his motion to suppress an in-court identification of McDonald by a witness and (2) in sentencing McDonald as a prison releasee reoffender and as a violent habitual offender. We affirm, without comment, on the first ground. However, on the second ground, we reverse and remand for resentencing.

McDonald was sentenced to fifteen years’ prison. McDonald’s written judgment and sentence indicates that he was sentenced as a ‘Violent Habitual Offender” and as a “Prison Release Re-Offender.”

McDonald argues that, at the sentencing hearing, the judge initially intended to sentence McDonald to a life sentence with both enhancements but changed his mind after he was reminded that McDonald was convicted of only a second-degree felony. The judge said: “Strike what I said earlier. The sentence is 15 years in Florida State Prison.” McDonald argues that the judge struck the enhancements along with the life sentence. Consequently, McDonald asserts that the trial judge did not intend to sentence him as a violent habitual offender or as a prison releasee reoffen-der when finally sentencing him to fifteen years’ prison. We reject this argument. Although the judge could have made his oral pronouncement more clear, it appears that the judge intended to strike only the life sentence and replace it with a fifteen-year sentence, retaining both enhancements.

However, this dual enhancement was improper because McDonald’s fifteen-year sentence is not greater than the mandatory prison releasee reoffender sentence. See § 775.082(9)(c), Fla. Stat. (2003); Grant v. State, 770 So.2d 655, 659 (Fla. 2000); Hagins v. State, 845 So.2d 222, 223 (Fla. 2d DCA 2003). Notably, the State rightfully concedes the error. Accordingly, we reverse and remand for resentenc-ing.

Reversed and remanded for resentenc-ing.

DAVIS and LaROSE, JJ„ Concur.


author: WOLF, J.

text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. Johnny McFADDEN, Respondent.
    No. 1D06-1976.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    Julie Waldman, Agency for Persons with Disabilities, Gainesville, for Petitioner.
    C. Richard Parker, Public Defender, Gainesville, for Respondent.
    Bill McCollum, Attorney General, and Louis F. Hubener, Acting Solicitor General, Office of the Attorney General, Tallahassee.
   WOLF, J.

. Petitioner alleges that the trial court erred in granting the State’s request for an interim order of emergency commitment to the Agency for Persons with Disabilities. The State concedes error. We, therefore, grant the Writ of Certiorari, quash the order, and remand to the trial court for further proceedings.

LEWIS and THOMAS, JJ., concur.


text:
    Romeo WARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2685.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    Romeo Ward, pro se, Appellant.

      Charlie Crist, Attorney General, Anne C. Conley and Christine Ann Guard, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Appellant’s sentence is illegal, we reverse the trial court’s denial and remand for resen-tencing.

The points scored on Appellant’s sentencing scoresheet for prior offenses do not accurately reflect the points warranted by those offenses. We, therefore, reverse and remand for resentencing pursuant to a correctly calculated scoresheet.

REVERSED and REMANDED.

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


text:
    Paul E. O’STEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3572.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    Paul E. O’Steen, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant challenges the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion. The Appellant pled nolo contendere to committing a lewd and lascivious act upon a child and to one count of aggravated child abuse. He filed the present motion claiming that he is entitled to withdraw his plea based on newly discovered evidence. The trial court declared the Appellant’s claim facially insufficient and denied the motion as untimely. The Appellee concedes that Appellant is entitled to relief by way of a remand for either attachment of copies of the record conclusively refuting Appellant’s claim or to conduct an evidentiary hearing. We conclude such concession is a proper one. See Jones v. State, 591 So.2d 911 (Fla.1991); Johnson v. State, 936 So.2d 1196 (Fla. 1st DCA 2006); Stephens v. State, 829 So.2d 945 (Fla. 1st DCA 2002); and Fla. R.Crim. P. 3.850(b). Therefore, we reverse and remand this claim to the trial court to either attach record portions conclusively refuting the Appellant’s claim or to conduct an evidentiary hearing.

REVERSED AND REMANDED.

BROWNING, C.J., WOLF and KAHN, JJ., concur.


author: SALCINES, Judge.

text:
    Juan GARZA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3016.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
   SALCINES, Judge.

Juan Garza appeals the summary 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 Garza’s motion is facially insufficient. See Gilbert v. State, 805 So.2d 70, 71 (Fla. 2d DCA 2002) (holding that a rule 3.800(a) motion that does not allege that the court records show the defendant’s entitlement to additional jail credit is facially insufficient). Our affir-mance is without prejudice to Garza’s right to file a facially sufficient, nonsuccessive rule 3.800(a) motion or a timely and facially sufficient rule 3.850 motion showing entitlement to additional jail time credit pursuant to Gethers v. State, 838 So.2d 504 (Fla.2003). See Smith v. State, 884 So.2d 316 (Fla. 2d DCA 2004). We note that jail credit issues involving disputed issues of fact are not appropriate for resolution on a motion filed pursuant to rule 3.800(a) and are matters that can only be resolved pursuant to rule 3.850. See Clifton v. State, 905 So.2d 1042, 1044 (Fla. 2d DCA 2005); see also Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002); Daniels v. State, 825 So.2d 499 (Fla. 2d DCA 2002).

Affirmed.

NORTHCUTT and KELLY, JJ., Concur.