author: FARMER, J.

text:
    R.S., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA; R.S., the father; Guardian Ad Litem Program, Respondents.
    No. 4D07-1423.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.

      William W. Booth, Michelle Hankey, and James Walsh, Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for petitioner.
    Jeffrey Dana Gillen, West Palm Beach, for respondent Department of Children and Families.
    Samuel T. Marshall, II, of Pickett Marshall & Glassman, P.A., West Palm Beach, for the Father.
    Patricia M. Propheter, Orlando, for respondent Guardian ad Litem Program.
   FARMER, J.

The Legislature has established the following policy to govern the progress of proceedings for the termination of parental rights:

The Legislature finds that time is of the essence for establishing permanency for a child in the dependency system. Time limitations are a right of the child which may not be waived, extended, or continued at the request of any party except as provided in this section.

§ 39.0136(1), Fla. Stat. (2006). The statute specifies that:

A continuance or extension of time may be granted only for extraordinary circumstances in which it is necessary to preserve the constitutional rights of a party or if substantial evidence exists to demonstrate that without granting a continuance or extension of time the child’s best interests will be harmed.

§ 39.0136(3). The unavailability of evidence does not constitute “extraordinary circumstances” unless the party establishes that the evidence is material and the party has exercised due diligence to obtain the evidence. § 39.0136(2)(b)(l). The statute limits any particular continuance “to the number of days absolutely necessary to complete a necessary task in order to preserve the rights of a party or the best interests of a child.” § 39.0136(4). Finally the statute also places an outer limit of 60 days for continuances within any 12-month period.

In this case the child has filed a petition for writ of certiorari contesting the trial court’s continuance of the trial to terminate the father’s parental rights. The trial court set trial for March 15, 2007. On the day of trial the father moved for a two- to four-weeks continuance, his attorney saying that he simply needed more time for preparation as a result of witness names the father provided only that morning. The witnesses would testify about the father “following through” in drug abuse services he was receiving. The father had no explanation as to why he waited until the morning of trial to provide these names to his counsel. DCF objected to the continuance.

In assessing the father’s showing in favor of a continuance, the court explained:

“This motion may not merit granting a continuance because in order to grant a continuance, the Court should be concerned about whether or not good cause exists. There is no explanation here as to why this information was not gathered. The moving party appears to want to remain silent on that. But when I asked the question I got no response. I’m not sure whether or not this information is really material to the resolution of the case.
“But if I hear this trial and his parental rights are terminated and this case goes to the DCA, I really would hate to see a case reversed on something that could have been cured, given another two weeks to gather the information and eliminate this issue so that if and when this child is adopted, at least this type of an issue won’t come back to haunt us. I have seen cases reversed because the Court didn’t grant a continuance.... ”

The court added that it thought that DCF would not be prejudiced. The court questioned what harm would arise from granting a two week continuance “to avoid a possible appellate issue.” DCF pointed out that the court’s calendar was so full that in two weeks this case may not be reached. The court noted that time was available on May 31st. The court did not mention the fact that this would amount to a continuance of ten weeks beyond the current trial date.

Counsel for the child objected and thought that nothing would stop the father from seeking another continuance then. The court said pointedly that he was not convinced there was good cause shown for the continuance but explained:

[I]f the child was in a situation where we needed to move to do something or if you were going to lose some evidence, lose your ability to present something, something of that nature, on balance, I think that would be enough, but if we are just talking about waiting, I’m more than inclined to do that than to take a chance with a two year old with a family ready, willing and able to adopt him. So you don’t have to argue.

The court thereupon entered an order granting the continuance and setting trial for May 31st. The length of the continuance granted by the order amounted to 77 days. We granted the child’s petition without explanation, promising an opinion in due course. This is our opinion.

None of the above statutory requirements have been met here. There was no attempt by the father to show that without a continuance the child’s best interests would be harmed. Instead the court asked whether DCF would be harmed. The circumstances were not extraordinary — in fact they are quite ordinary. The father gave no reason for failing to obtain the witnesses, established no diligence. The court doubted that the witnesses’ testimony would be material. Nothing indicated the number of days absolutely necessary to secure the witnesses’ testimony. Even if all these requirements had been met, the total time granted by this order exceeds the 60-day limit, and there is nothing showing why an extension beyond the 60-day limitation could be justified. For any of these reasons, it was error to grant the continuance.

The power to control the timing of trial and to grant continuances has long been understood in civil litigation as almost wholly within the control of trial judges. Correspondingly, appellate judges customarily defer to trial judges in this regard because they are on the scene and are best acquainted with considerations of managing local trial court time and resources. But in this class of cases the state has assumed principal control of the matter by statutory law. The state has established a strong policy of ending a dependent child’s uncertainties and achieving a permanent placement within one year. Terminating the rights of parents and completing the adoption of minor children involves civil proceedings for which the state has erased the customary laissez-faire policy allowing trial judges to control the timing of these trials.

The statute in question was adopted only last year. See Chapter 2006-86, Laws of Florida. The amendments to chapter 39 made by this legislation were intended “to conform [chapter 39] to the federal Adoptions and Safe Families Act (ASFA) [P.L. 105-89] in three major areas.” Florida Staff Analysis, S.B. 1080 (March 17, 2006). “As a prerequisite to accepting federal funding through Titles IV-B and IY-E of the Social Security Act, states were obligated to amend state legislation to bring it into compliance with ASFA.” Id. One of the three major purposes was to have chapter 39 include express “time periods (shortened from 18 months to 12 months) to finalize a permanency plan, a new requirement for permanency hearings.... ” Id. Section 39.0136 was specifically intended “to outline the time limitations applicable to dependency cases.” It is clear from the statutory text that trial judges were given very limited power to alter the time limitations specified by the Legislature. By this opinion we hope to convey the importance of these statutory changes and to clarify the new limitations on trial court discretion in the matter of continuances in proceedings to terminate parental rights.

We also make clear that the trial court’s order is a departure from the substantial requirements of law that cannot possibly be remedied in a plenary appeal after a final judgment has been entered. Nothing we could do on final appeal could restore the child’s right to have the issue of termination determined within the time specified by this statute. In fact, unless we grant extraordinary review, there is effectively no way for appellate courts in this state to review and correct trial court orders violating this important policy in the statutory scheme for terminating parental rights and permanent placement of children with adoptive parents. Consequently we have no hesitation in finding that the requirements for extraordinary review by certiorari have been met. See Martin-Johnson v. Savage, 509 So.2d 1097, 1099 (Fla.1987) (nonfinal order for which no appeal is provided by statute will be reviewed by certiorari only where order departs from the essential requirements of law and causes material injury to petitioner throughout remainder of the proceedings below, effectively leaving no adequate remedy on appeal); Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla.1995) (where plenary appeal would not restore substantive litigation right granted by statute appellate courts should grant cer-tiorari if party demonstrates that requirements of statute have not been complied with; no conflict with Martin-Johnson shown by recognizing requirements mandated by statute); Kraft General Foods Inc. v. Rosenblum, 635 So.2d 106, 110 (Fla. 4th DCA 1994) (certiorari proper where refusal to grant extraordinary review of order would effectually render particular statutory right mythical).

The trial judge’s decision in this case is contrary to this statute in the particulars detailed in this opinion. Our order granting certiorari directed the trial judge to begin trial in this case forthwith. We are advised that trial began within a few days after our order was received. We commend the judge in this regard.

Certiorari granted; order quashed.

WARNER and TAYLOR, JJ„ concur.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    CMG PROPERTY SERIES III, LLC, Appellant, v. LIGHTHOUSE POINT ASSOCIATES, LLC, Appellee.
    No. 4D06-3930.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Joseph L. Thillman of Gerstin & Associates, Boca Raton, for appellant.
    H. Allan Tucker, Hollywood, for appel-lee.
   GROSS, J.

This case presents the unusual circumstance of a party appealing an order affording the relief it sought in the circuit court. We find no procedural irregularities, affirm the portion of the order granting specific performance, and reverse the aspect of the ruling concerning attorney’s fees.

CMG Properties Series III, LLC is a limited liability company formed to purchase Gateway Center, a commercial property in Broward County, Florida. Appel-lee, Lighthouse Point Associates, LLC owns the property.

CMG entered into an agreement with Lighthouse to purchase Gateway Center. Pursuant to the contract, CMG placed a $500,000 deposit in escrow. An addendum to the contract extended the closing date and released the deposit, making it nonrefundable. After the closing date, the parties were unable to negotiate a second extension and Lighthouse declared CMG in default.

CMG filed suit. At first it sought return' of its deposit. Later, CMG amended its complaint to sue for specific performance, contending that it was “ready, willing and able to pay the purchase price pursuant to the terms of the contract.”

Lighthouse responded to the complaint with an answer and affirmative defenses.

On September 19, 2006, Lighthouse moved for an Order Granting Specific Performance and Setting Closing Date. Without waiving any defenses and “[ijrrespec-tive of purchaser’s default,” the motion stated that Lighthouse was prepared to close the transaction under the terms of the contract that CMG sought to enforce.

After a hearing, on September 28, 2006, the circuit court granted Lighthouse’s motion and ordered specific performance of the contract, with each party to bear its own attorney’s fees and costs. On September 29, 2006, CMG filed a notice of appeal.

CMG raises procedural complaints about the entry of the order, arguing that Lighthouse obtained a summary judgment without following the procedures required by Florida Rule of Civil Procedure 1.510. However, as Lighthouse points out, its motion did not fall under that rule; Lighthouse was neither a “party seeking to recover upon a claim” within the meaning of rule 1.510(a), nor a movant seeking judgment in its favor on a claim asserted against it under 1.510(b).

A litigant is not limited to the motions referenced in the rules of civil procedure. As one commentator has observed:

Available motions are limited only by the facts of the action and the ingenuity of the attorney. Many are specified in or are inferable from rules or statutes. Some remain as a part of the common law heritage. The rest are devised by the attorney for a particular proceeding.

Henry P. Tkawick, Je., FloRida PRactice and PROCEDURE § 9-2 (2001 ed.). Lighthouse’s attorney determined that selling the property under the terms of the contract achieved a favorable result for his client. In the words of the circuit judge, an order of specific performance forced CMG to “paint or get off the ladder.” The attorney creatively devised a simple motion to achieve this result. There was no procedural irregularity — the motion was noticed for a hearing. There is nothing unfair about a defendant agreeing to the relief sought by a complaint. We therefore affirm the order granting specific performance.

We reverse that portion of the order stating that each party shall bear its own costs and fees. Lighthouse concedes error on this point based on the prevailing party attorney’s fee provision in the contract. We remand to the circuit court for entry of an order indicating that the court retains jurisdiction for the purpose of determining entitlement to, and amount of, attorney’s fees to be awarded.

CMG has moved for an award of appellate attorney’s fees as the prevailing party under the contract. We deny the motion. CMG has not prevailed in its attack on the specific performance order. In the trial court, Lighthouse conceded error on the attorney’s fee issue, but CMG filed a notice of appeal before an amended order could be submitted to the trial judge. CMG did not ask this court to relinquish jurisdiction to the trial court to correct the error. The appeal of this issue was unnecessary.

Affirmed in part, reversed in part, and remanded.

SHAHOOD and MAY, JJ., concur.


author: LaROSE, Judge.

text:
    Dalia FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-602.
    District Court of Appeal of Florida, Second District.
    May 25, 2007.
    James Marion Moorman, Public Defender, and Joseph N. D’Aehille, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Dalia Figueroa appeals her convictions and sentences for kidnapping, armed burglary of a dwelling, two counts of robbery with a firearm, two counts of attempted robbery with a firearm, and aggravated battery with a firearm. We affirm but write to address a scrivener’s error in the judgment.

The trial court’s twenty-five-year sentence for Count I was legal; kidnapping is a first-degree felony “punishable by imprisonment for a term of years not exceeding life.” § 787.01(2), Fla. Stat. (2004). The judgment, however, incorrectly identifies the offense as a life felony. We remand to the trial court to correct the judgment to reflect that Count I was punishable by a term of years not exceeding life.

Affirmed and remanded with instructions.

ALTENBERND and WALLACE, JJ., Concur.

      . Originally, Ms. Figueroa was charged with kidnapping, § 787.01(2), Fla. Stat. (2004), with reclassification for discharge of a firearm, § 775.087(2), Fla. Stat. (2004). At trial, however, it was undisputed that she never touched or discharged the firearm. Her sentence was not enhanced under section 775.087.


author: PER CURIAM.

text:
    Randolph JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1918.
    District Court of Appeal of Florida, First District.
    May 25, 2007.

      Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s request for rehearing, withdraw our previous opinion, and substitute the following.

Appellant raises two issues on appeal; we find one has merit. We determine, as conceded by the State, that in light of the Florida Supreme Court’s decision in State v. Hearns, 32 Fla. L. Weekly S177, — So.2d —, 2007 WL 1215452 (Fla. Apr. 26, 2007), the trial court erred in ruling that appellant’s reclassified battery on a detainee conviction qualifies for violent career criminal sentencing. We, therefore, reverse and remand for resentencing.

ALLEN, WOLF, and POLSTON, JJ., concur.


text:
    Marilyn WIMBERLY, Appellant, v. James RUSSELL as Personal Representative of the Estate of Joseph Willie Russell, Appellee.
    No. 1D07-0081.
    District Court of Appeal of Florida, First District.
    May 25, 2007.
    Joseph T. Lander, Cross City, for Appellant.
    Samuel A. Mutch, Gainesville, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 5, 2007, the Court has determined that the appellant has failed to demonstrate that the notice of appeal was timely filed. Accordingly, the appellee’s motion to dismiss, filed on January 25, 2007, is hereby granted and the appeal is dismissed as untimely. The appellee’s motion for an award of attorney’s fees, filed on January 25, 2007, is denied. All other pending motions are denied as moot.

LEWIS, POLSTON, and ROBERTS., JJ., concur.


author: SILBERMAN, Judge.

text:
    Ezell WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4234.
    District Court of Appeal of Florida, Second District.
    May 25, 2007.
   SILBERMAN, Judge.

Ezell Walker appeals the summary denial of his motion for DNA evidence examination filed pursuant to Florida Rule of Criminal Procedure 3.853. In his motion, Walker seeks DNA testing of the victim’s underwear and sand allegedly removed from her vagina. These items were collected during the investigation of the crime for which Walker was convicted. The postconviction court denied the motion based on the State’s unsworn response that asserts the evidence to be tested no longer exists.

We have previously held that “allegations in the State’s unsworn response do not provide a sufficient basis on which to find that no DNA evidence exists.” Borland, v. State, 848 So.2d 1288, 1290 (Fla. 2d DCA 2003). Even an affidavit from the State that refutes the movant’s allegations serves only to create a factual dispute that must be resolved by an evidentiary hearing. Zollman v. State, 854 So.2d 775, 776 (Fla. 2d DCA 2003); see Jakeway v. State, 884 So.2d 290, 291 (Fla. 2d DCA 2004); Borland, 848 So.2d at 1290. Thus, the postconviction court erred in denying Walker’s motion based on the State’s response.

Accordingly, we reverse the order denying Walker’s motion and remand for the postconviction court to provide him the opportunity at an evidentiary hearing to address the issue of whether testable evidence still exists. See Jakeway, 884 So.2d at 291.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.


author: STRINGER, Judge.

text:
    Bruce W. CHARITY and Gabriele Charity, as husband and wife; Marjorie Meffley Coley, as Trustee of the Marjorie Meffley Coley Revocable Trust Agreement u/t/d December 22, 1997; James B. Cason, as Trustee of the James B. Cason Revocable Trust u/t/d February 1, 2005; Jack Crawford and Sue Ellen Crawford, as husband and wife; Eileen Naaman; and Jeffery L. Silver and Anne H. Silver, as husband and wife, Appellants, v. SARASOTA COUNTY, Florida, a political subdivision of the State of Florida; and Richard K. Figliuzzi, Appellees.
    No. 2D06-3071.
    District Court of Appeal of Florida, Second District.
    May 25, 2007.

      Thomas D. Shults of Kirk-Pinkerton, P.A., Sarasota, for Appellants.
    Stephen A. DeMarsh, County Attorney, and Gary K. Oldehoff and David M. Pearce, Assistant County Attorneys, Sarasota, for Appellee Sarasota County.
    No appearance for Appellee Richard K. Figliuzzi.
   STRINGER, Judge.

Appellants (“the Property Owners”) own lots in the Sarasota Beach subdivision located on Siesta Key in Sarasota County. The Property Owners live on a right-of-way known as Avenida Del Norte, which runs parallel to a waterway known as the Grand Canal. A strip of land lies between Avenida Del Norte and the canal. The Property Owners filed a complaint against Sarasota County (“the County”) to quiet title to “the canal front portions” of their lots and for slander of their title to the land. The Property Owners also sought to enjoin the County from maintaining the canal front portion of their lots. The trial court granted summary judgment in favor of the County based on the court’s determination that the Property Owners do not have a claim of title to the land. We reverse.

The Property Owners’ deeds convey all or a portion of some numbered lots as referenced in a plat recorded in the Sarasota County Public Records. The plat shows numbered lots with the length of each side of the lots stated on the plat. The Property Owners’ lot lines end at the Avenida Canale Grande, which later became Avenida Del Norte.

The Property Owners and the County moved for summary judgment on different theories of law. The County argued that the Property Owners did not have a claim of title to the land because the plat limited their property by metes and bounds. The County argued that it owned Avenida Del Norte and any land adjacent to the roadway by operation of Florida’s road dedication statute, as codified in section 95.361, Florida Statutes. The Property Owners argued that Avenida Del Norte was dedicated by the common law, and thus the fee title to the dedicated roadway and any adjacent land created by accretion remained in the original fee owner. The Property Owners asserted that their predecessors were the original fee owners of the property in question because their lots abutted the common-law dedicated roadway and the accreted strip of land adjacent thei*eto.

The trial court granted the County’s motion for summary judgment but did not address the parties’ arguments regarding the dedication of Avenida Del Norte. Instead, the court determined that all three counts of the complaint failed because the Property Owners have not established that they have a claim of title to the land in question. The court concluded that because the plat contains a metes and bounds description of the lots, the Property Owners’ ownership interests are “limited to their lots as described in the deeds.” In so ruling, the court found this court’s prior decision in Krieger v. Town of Longboat Key, 849 So.2d 358 (Fla. 2d DCA 2003), controlling.

In Krieger, the dispute was over a strip of beach that bordered a bay and was across the street from Krieger’s property. 849 So.2d at 359. The Town of Longboat Key claimed an ownership interest in the beach and filed a declaratory judgment action asking the court to determine such. Krieger filed a counterclaim seeking a declaration of rights and other relief. The trial court entered a final judgment in favor of the Town on two bases: (1) that the beach had been dedicated to public use and (2) that Krieger did not have an ownership interest in the land.

This court reversed the trial court’s holding regarding the dedication but affirmed its determination that Krieger did not have an ownership interest. Id. at 361. In affirming, this court explained that the original purchasers of the lot in question were conveyed a portion of the beach, but Krieger’s deed described Krieger’s parcel of land by metes and bounds and did not include any part of the beach. Thus, the court concluded that Krieger had no ownership interest in the beach.

Our reading of Krieger reveals that it is inapplicable to this case. Krieger’s deed did not indicate an intention to convey anything other than a part of the lot as defined by the metes and bounds description in the deed. The original purchasers of the lot in Krieger had been conveyed a portion of the beach, but Krieger’s deed described Krieger’s parcel of land by metes and bounds and did not include any part of the beach. Thus, in Krieger, the original purchasers retained their fee interest in the beach by excluding it from the deed. In this case, however, the Property Owners’ deeds reference the plat and none of the Property Owners’ predecessors retained their fee interest in the canal front portion of their lots.

We conclude that the trial court erred in relying on Krieger to determine that the Property Owners do not have a claim of title to the canal front portion of their lots. The Property Owners should not have been precluded from arguing that they were deeded their predecessors’ fee interest in the canal front portions of their lots based on common law doctrines which provide for ownership of abutting common-law dedicated roadways and any accreted land appurtenant thereto. We note that the County has raised the dedication argument it made in its motion for summary judgment as an alternative basis for affirming the final summary judgment. However, we decline to rule on this issue because the trial court did not reach it below.

We therefore reverse the final summary judgment. We caution that our holding today is extremely limited. We have concluded that the trial court erroneously determined that the Property Owners do not have a claim of title to the canal front portion of their lots under Krieger. We have not decided whether the Property Owners own fee title to the land or any issues regarding the dedication of the land. Our ruling therefore does not preclude the parties from raising the other arguments they made in their motions for summary judgment on remand.

Reversed and remanded.

WHATLEY and CANADY, JJ, Concur.

      . Appellee Richard K. Figliuzzi was a plaintiff property owner in this case, but he has been dropped as a party.


text:
    Brian PITTS, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-5915.
    District Court of Appeal of Florida, First District.
    May 25, 2007.
    Brian Pitts, pro se, Appellant.
    Keith J. Ganobsik, Assistant SunCoast Region Legal Counsel, Department of Children and Family Services, Largo, for Appellee.
   PER CURIAM.

We find that the hearing officer’s findings of fact are supported by competent, substantial evidence and that her conclusions of law are consistent with the statutes and administrative rules applicable to penalties for failure to comply with Florida’s Food Stamp Employment and Training work requirements. The final order is therefore AFFIRMED.

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


author: CANADY, Judge.

text:
    Demetrius DUDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4593.
    District Court of Appeal of Florida, Second District.
    May 25, 2007.
   CANADY, Judge.

Demetrius Dudley filed procedurally unusual motions to withdraw plea that the trial court summarily denied. We affirm the denial but note that if in the future Dudley files a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 directed to the issues raised in his motions to withdraw plea, that motion should not be deemed successive.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.


text:
    Michael Everett MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2536.
    District Court of Appeal of Florida, Fifth District.
    May 29, 2007.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001).

SAWAYA, PALMER, and LAWSON, JJ., concur.


text:
    Renaldo Gary COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3846.
    District Court of Appeal of Florida, Second District.
    May 30, 2007.

      James Marion Moorman, Public Defender, and John Thor White, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Renaldo Gary Coleman appeals following his convictions for kidnapping with a firearm, home-invasion robbery, carjacking with a firearm, grand theft of a motor vehicle, armed burglary of a dwelling, burglary of a dwelling with assault or battery, and battery. He argues that certain of his convictions and sentences violate the constitutional prohibition against double jeopardy. See U.S. Const. amend. V.; Art. I, § 9, Fla. Const. Although Coleman did not raise this issue in the trial court, a double jeopardy violation constitutes fundamental error that may be reviewed on appeal. See McGlorthon v. State, 908 So.2d 554, 555 (Fla. 2d DCA 2005). We affirm without discussion Coleman’s convictions for kidnapping with a firearm, carjacking with a firearm, grand theft of a motor vehicle, and battery. However, because Coleman’s convictions and sentences for home-invasion robbery, burglary of a dwelling with assault or battery, and armed burglary of a dwelling violate double jeopardy principles, we reverse and remand for the trial court to vacate two of these convictions and to resentence Coleman on all remaining convictions using a revised scoresheet.

In August 2003, Coleman and others forcibly entered, the apartment of Zaine Pavelka. The perpetrators bound Mr. Pavelka and held him at gunpoint while they took various items from his apartment. The perpetrators also took two vehicles owned by Mr. Pavelka from the parking lot. The State filed multiple charges against Coleman, and a jury convicted him of the seven crimes specified above. The trial court entered judgment and sentenced Coleman for each of the crimes.

Coleman first argues that his convictions and sentences for burglary of a dwelling with assault or battery and armed burglary of a dwelling violate double jeopardy principles. In pertinent part, section 810.02(l)(b)(l), Florida Statutes (2003), defines the crime of burglary as “[e]ntering a dwelling ... with the intent to commit an offense therein.” Id. Section 810.02(2) provides, again in pertinent part, that burglary is a first-degree felony punishable by life imprisonment “if, in the course of committing the offense, the offender: (a) Makes an assault or battery upon any person; or (b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon.”

In Hawkins v. State, 436 So.2d 44, 46 (Fla.1983), the Florida Supreme Court considered a double jeopardy challenge to two convictions for burglary under section 810.02(2), one based on an assault committed during the burglary and the other based on the carrying of a deadly weapon during the burglary. The court reversed one of the burglary convictions “because the two counts constituted the same statutory offense under section 810.02, Florida Statutes (1979).” 436 So.2d at 46. This court has also concluded that multiple burglary convictions based upon a single forced entry violate double jeopardy principles. See Grubb v. State, 940 So.2d 1168, 1169 (Fla. 2d DCA 2006) (involving convictions for armed burglary of a dwelling and burglary of a dwelling with an assault or battery); Chambers v. State, 924 So.2d 975, 976 (Fla. 2d DCA 2006) (reiterating that “convictions for both armed burglary of a dwelling and burglary of a dwelling with an assault or battery violate principles of double jeopardy because they were based upon a single forced entry and involved a single victim”). Thus, Coleman’s convictions and sentences for burglary of a dwelling with assault or battery and armed burglary of a dwelling violate double jeopardy. On remand, the trial court must strike at least one of the burglary convictions. See Grubb, 940 So.2d at 1170.

Coleman next argues that his convictions and sentences for home-invasion robbery and burglary of a dwelling with assault or battery violate double jeopardy. Section 812.135(1), Florida Statutes (2003), states the following: “ ‘Home-invasion robbery’ means any robbery that occurs when the offender enters a dwelling with the intent to commit a robbery, and does commit a robbery of the occupants therein.”

Several decisions hold that home-invasion robbery subsumes the crime of burglary with an assault or battery or the crime of burglary generally. See Mendez v. State, 798 So.2d 749, 750 (Fla. 5th DCA 2001) (holding that “[t]he crime of burglary of a dwelling with assault or battery is subsumed by the offense of home invasion robbery” and violates double jeopardy principles); Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996) (holding that burglary with an assault is subsumed by the crime of home-invasion robbery); Black v. State, 677 So.2d 22, 22 (Fla. 4th DCA 1996) (reversing burglary conviction because “[a]ll of the elements of burglary are included in the offense of home invasion robbery, of which appellant was also convicted”).

Other cases hold that the offense of burglary with an assault subsumes the crime of home-invasion robbery. See Braggs v. State, 789 So.2d 1151, 1152-53 (Fla. 3d DCA 2001); Barboza v. State, 786 So.2d 675, 675 (Fla. 3d DCA 2001); Smith v. State, 741 So.2d 579, 579 (Fla. 3d DCA 1999). In these cases, the courts vacated the conviction for home-invasion robbery in favor of the conviction for burglary with an assault. Accordingly, Coleman’s convictions and sentences for both home-invasion robbery and burglary of a dwelling with assault or battery cannot stand because of the prohibition against double jeopardy.

Further, this court’s decision in Perez v. State, 951 So.2d 859 (Fla. 2d DCA 2006), precludes upholding Coleman’s convictions and sentences for both home-invasion robbery and armed burglary of a dwelling. During a single criminal episode, Perez committed the offenses of home-invasion robbery, armed burglary, and false impersonation of a law enforcement officer during the commission of a felony. The trial court entered judgments and sentences for the three crimes, and the opinion notes the jury’s finding that Perez possessed a firearm in both the home-invasion robbery and the armed burglary. Id. at 860.

This court noted that various cases have “held that convictions arising from a single episode for home invasion robbery and burglary violate either double jeopardy or section 775.021(4)(b)(3).” Id. at 859. Section 775.021(4)(b), Florida Statutes (2003), expresses legislative intent “to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction.” Section 755.021(4)(b)(3) states an exception to this rule for “[o]f-fenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” In Perez we concluded that the “conviction for armed burglary must be vacated as it is subsumed by the greater offense of armed home invasion robbery.” 951 So.2d at 860.

Here, the State charged Coleman with actually possessing a firearm during his commission of the armed burglary of a dwelling and the home-invasion robbery, and the jury’s verdict found him guilty of committing these crimes with a firearm. Further, the crimes were part of one criminal episode, involving a single entry into Mr. Pavelka’s apartment. Thus, Coleman’s convictions and sentences for home-invasion robbery and armed burglary of a dwelling cannot both stand.

Therefore, as to Coleman’s convictions and sentences for home-invasion robbery, burglary of a dwelling with assault or battery, and armed burglary of a dwelling, we reverse and remand with directions that the trial court vacate two of the convictions and sentences. We affirm the remaining convictions. However, because Coleman’s sentencing scoresheet includes points for the home-invasion robbery and the two burglaries, we vacate all of Coleman’s sentences and remand for resentencing using a new scoresheet that does not assess points for the vacated convictions.

Affirmed in part, reversed in part, and remanded for resentencing.

CASANUEVA and CANADY, JJ„ Concur.


text:
    EQUITY PREMIUM INC., Puritan Budget Plan, Inc., and Perry & Co., Appellants, v. TWIN CITY FIRE INSURANCE CO. and Florida Automobile Joint Underwriting Association, Appellees.
    No. 4D06-1580.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Juan C. Montes and Daniel Martinez of Lidsky, Vaccaro & Montes, Attorneys at Law, P.A., Hialeah, for appellants.

      Christopher R.J. Pace and James San-born of Weil, Gotshal & Manges, LLP, Miami, for appellee Twin City Fire Insurance Company.
    Harold R. Mardenborough, Jr., Christopher C. Torres and William B. Graham of Carr Allison, Tallahassee, for appellee Florida Automobile Joint Underwriting Association.
   PER CURIAM.

Appellants, Equity Premium Inc., Puritan Budget Plan, Inc., and Perry & Co. (collectively referred to as “the PFCs”), appeal from the trial court’s order granting motions to dismiss filed by appellees, Twin City Fire Insurance Co. (“Twin City”) and Florida Automobile Joint Underwriting Association (“FAJUA”). We reverse.

The PFCs are licensed premium finance companies who financed various private passenger automobile insurance policies issued by Twin City. Premium finance companies provide financing for insureds seeking to enter into insurance contracts with insurance companies who are authorized to issue policies in this state. An insured will enter into an insurance contract with an insurer, typically at an insurance agency. At the same time, the insured enters into a premium finance contract with the PFC. The PFC finances the premiums for the insured and then sends a check to the insurance company.

The PFCs filed a complaint against Twin City, seeking class action status, to recover interest allegedly owed to them by Twin City. Specifically, the PFCs alleged that Twin City (1) cancelled the policies of various insureds at the request of the PFCs in 1999, and (2) maintained a business practice of intentionally delaying the return of unearned premiums due the PFCs and class members, depriving the PFCs of the use of their money, while itself gaining the benefit of earning interest. In the complaint, the PFCs sought a declaratory judgment to determine whether Twin City violated Florida law by not including interest in its unearned premium refunds to the PFCs and whether the PFCs were entitled to interest on the unearned premium refunds (Count I). Count II alleged Twin City deprived the PFCs of ownership of unearned premium interest and sought a refund of this interest. Count III sought damages for breach of contract, claiming the PFCs have an assignment of the right to receive unearned premiums under the policy and Florida law in the event of a cancellation, and Twin City’s failure to pay interest on the unearned premium refunds violated Florida law and breached the insurance contracts.

Subsequently, the PFCs filed a first amended complaint adding FAJUA as a defendant. Twin City filed a motion to dismiss the first amended complaint on multiple grounds including that the PFCs failed to attach the relevant insurance policies as required by Florida Rule of Civil Procedure 1.130. FAJUA also filed a motion to dismiss, adopting Twin City’s arguments.

After a hearing, the trial court entered an order granting Twin City and FAJUA’s motions to dismiss and dismissing the PFCs’ case with prejudice. The trial court’s order is silent as to the basis for the dismissal. The PFCs argue, inter alia, that dismissal with prejudice was inappropriate because they alleged in their complaint that the subject insurance policies were not in their possession, but would be produced through discovery. We agree.

In Kreizinger, P.A. v. Schlesinger, P.A., 925 So.2d 431 (Fla. 4th DCA 2006), this court explained:

The standard of review of orders granting motions to dismiss with prejudice is de novo. MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Id. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein as true. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 494 (Fla. 4th DCA 2001).

Kreizinger, P.A., 925 So.2d at 432-33.

The issues in this case may turn on provisions of the applicable insurance contracts yet to be discovered by the PFCs. We, therefore, conclude that dismissal with prejudice was improper and premature. Accordingly, we reverse, remand and direct the trial court to vacate its order dismissing this case and conduct further proceedings consistent with this opinion.

Reversed and Remanded with Directions.

WARNER, KLEIN and HAZOURI, JJ., concur.


author: HAZOURI, J.

text:
    Israel FONSECA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1313.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.

      Glenn H. Mitchell, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Israel Fonseca, Jr., appeals his conviction and sentence for two counts of first-degree murder with a firearm and one count of shooting into an occupied vehicle. We affirm.

Fonseca’s first claim of error is that the trial court committed per se reversible error by having an in court ex parte communication with an assistant state attorney about jury instructions, thus denying him a right to counsel at a critical stage in the proceedings. We disagree.

A charge conference is a critical stage of the proceedings to which the right to counsel attaches. See Wilson v. State, 764 So.2d 813, 816 (Fla. 4th DCA 2000) (recognizing that “[tjrial, sentencing, and direct appeal are all critical stages at which a defendant is entitled to counsel.”). Fonseca asserts that the denial of a defendant’s constitutional right to counsel is per se reversible error. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, this court rejected that blanket notion in Fruetel v. State, 638 So.2d 966, 971-72 (Fla. 4th DCA 1994), where this court applied harmless error analysis to a defendant’s claim that the trial court erred when it proceeded to determine which tape would be played in the absence of the defendant and her counsel.

Although the ex parte conversation was error in that it deprived Fonseca of a right to counsel during a critical stage of the proceedings, the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). The absence of Fonseca’s counsel during a portion of the charge conference did not contribute to the judgment of conviction. When defense counsel arrived, the trial court advised defense counsel and the lead prosecutor that the introduction to homicide contained in the standard jury instructions would be given. Neither party objected. The trial court then inquired whether the prosecutor wanted first-degree murder as a lesser included offense, and the prosecutor responded that she did not. Therefore, the substance of the ex parte conversation was addressed when defense counsel and the lead prosecutor arrived in court and no substantial changes were made to the jury instructions as a result of the conversation. Defense counsel did not object to the instructions read by the trial court. Moreover, Fonseca was without counsel for only a brief period of time, no evidence was presented, and no instruction to the jury occurred at a time when Fonseca was without representation. See Wilson, 764 So.2d at 818-19.

Fonseca contends next that the trial court improperly denied his motion for judgment of acquittal because the evidence in this case is wholly circumstantial, and his reasonable hypothesis of innocence that his co-defendant and a third unidentified person committed the charged crimes was unrebutted by the state. We disagree.

In Pagan v. State, 830 So.2d 792 (Fla.2002), the Florida Supreme Court explained:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Tibbs v. State, 397 So.2d 1120 (Fla.1981). Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. See Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v. State, 668 So.2d 954, 964 (Fla.1996). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. See Banks v. State, 732 So.2d 1065 (Fla.1999). However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. See Orme v. State, 677 So.2d 258 (Fla.1996).

Pagan, 830 So.2d at 803. In essence, “ ‘[a] motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.’” E.H.A. v. State, 760 So.2d 1117, 1119 (Fla. 4th DCA 2000) (quoting Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998)).

Although we agree that the heightened standard explained in Pagan applies to this case, we nonetheless affirm the trial court’s denial of a judgment of acquittal. Based upon our review of the entire record, we conclude that the state not only presented sufficient evidence to establish each element of the charged offense, but the evidence also excluded Fonseca’s assertion that there was a third unidentified person who was the second shooter.

Affirmed.

WARNER and POLEN, JJ., concur.


text:
    Elvin Earnest SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2621.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.

      Kevin R. Anderson of Anderson & Welch, L.L.C., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Elvin Sanchez, appeals his conviction and sentence for possession of a firearm by a convicted felon, claiming that the trial court erred in denying his motion for a judgment of acquittal where the offense date alleged in the information was inconsistent with the date of the offense proven at trial. We affirm.

In this case, the charging document alleged that the offense occurred on March 31, 2005. There was conflicting testimony at trial as to whether the offense occurred on March 13th or March 31st. The probable cause affidavit revealed that the incident actually took place on March 13, 2005. We find that the trial court properly denied appellant’s motion for a judgment of acquittal based on the discrepancy. in the dates. See Smith v. State, 573 So.2d 1079 (Fla. 4th DCA 1991) (trial court did not err in denying the defendant’s motion for a judgment of acquittal based on a discrepancy between the offense date alleged in the information and the date proven at trial, where the discrepancy did not materially alter the offenses charged and did not compromise his defense); see also Tingley v. State, 549 So.2d 649, 651 (Fla.1989). Here, appellant did not request a statement of particulars, nor did he object to evidence of the erroneous date. Further, it was clear at trial that the state was alleging only a single incident.

Appellant also claims that the trial court committed fundamental error in imposing a three-year mandatory minimum sentence under section 775.087(2), Florida Statutes, where actual possession of the firearm was not alleged in the information. Although the initial information did not allege actual possession, appellant overlooks the fact that the state filed an amended information which did allege actual possession. Thus, even if appellant had preserved this issue in a rule 3.800(b)(2) motion, the record refutes this claim of error.

Affirmed.

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    CITIZENS FOR BETTER GOVERNMENT IN BAY COUNTY, INC., et al., Appellants, v. The CITY OF PANAMA CITY, The Panama City Downtown Improvement Board/ Downtown North Community Redevelopment Agency, and 450 6th Street, LLC, Appellees.
    No. 1D06-3547.
    District Court of Appeal of Florida, First District.
    May 30, 2007.
    Douglas M. Wyckoff, DeFuniak Springs, for Appellants.
    Rowlett W. Bryant and Lisa Lloyd Hamlin of Bryant and Higby, Chartered, and Douglas L. Smith of Burke & Blue, Panama City, for Appellees.
   PER CURIAM.

AFFIRMED. Smith v. City of Fort Myers, 944 So.2d 1092 (Fla. 2d DCA 2006).

VAN NORTWICK, LEWIS, AND ROBERTS, JJ., concur.


text:
    Joshua Dominic PELILLO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-5735.
    District Court of Appeal of Florida, Second District.
    May 30, 2007.
    Julianne M. Holt, Public Defender, and Satyen D. Gandhi, Assistant Public Defender, Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Denied without prejudice to Mr. Pelillo filing in the circuit court a timely and facially sufficient petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(c).

ALTENBERND, SILBERMAN, and CANADY, JJ., Concur.


text:
    Dipnarine MAHARAJ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2946.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Heidi Bettendorf, and Claudine M. LaFrance, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the circuit court’s revocation of probation and the resulting judgment and sentence. The trial court’s oral findings at the violation of probation hearing and the written disposition order satisfied due process requirements. See Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002); Drayton v. State, 710 So .2d 1018 (Fla. 4th DCA 1998); Singletary v. State, 290 So.2d 116, 121 (Fla. 4th DCA 1974).

SHAHOOD, GROSS and MAY, JJ., concur.


text:
    Perry Isham SALLETTE, II, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3385.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We grant the public defender’s Motion to Withdraw as Counsel in this appeal and affirm the conviction and sentence in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Af-firmance is without prejudice for appellant to pursue a ruling on his Florida Rule of Criminal Procedure 3.800(c) motion within sixty (60) days of the trial court’s receipt of the mandate in this appeal. Othouse v. State, 912 So.2d 682 (Fla. 2d DCA 2005); Lacquey v. State, 731 So.2d 724 (Fla. 2d DCA 1999).

STEVENSON, C.J., KLEIN and TAYLOR, JJ., concur.


text:
    Monte D. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4309.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.

      Monte D. Brown, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Monte Brown appeals the trial court’s denial of his motion for postconviction relief under Florida Rule of Crim. Procedure 3.850. We affirm in all respects except one, that being the trial court’s denial of the motion as to Ground 5.

We reverse and remand the denial of Brown’s motion as to Ground 5 alleging that trial counsel rendered ineffective assistance by advising Brown not to take the stand even after the trial court indicated that his testimony would likely be necessary to warrant a justifiable use of deadly force jury instruction, which was not ultimately given. Because the record before this Court does not refute Brown’s claims of self-defense or reveal the nature of trial counsel’s advice to him regarding taking the stand, we reverse and remand to the trial court for reconsideration of Ground 5 of Brown’s Rule 3.850 motion. On remand, the trial court shall either provide record attachments conclusively refuting Brown’s claim or conduct an evidentiary hearing.

Affirmed In Part; Reversed and Remanded In Part.

GUNTHER, FARMER and MAY, JJ„ concur.


text:
    Vincent RIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-557.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Vincent Riggs, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Vincent Riggs appeals an order denying his rule 3.850 motion as untimely. The record does not support the trial court’s conclusion that the motion was not timely filed under Florida Rule of Criminal Procedure 3.850(b). Accordingly, we reverse and remand for the trial court to consider the 3.850 motion on the merits.

STONE, WARNER, and FARMER, JJ., concur.


text:
    David SIERRA, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-893.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Jeffrey S. Grossman and Marc J. Zee, Ft. Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   On Motion to Clarify or Correct Opinion

PER CURIAM.

We grant the Motion to Clarify or Correct Opinion, withdraw our previously issued opinion and substitute the following in its place.

The petitioner seeks a writ of prohibition to prevent the lower court from proceeding with a criminal prosecution on the charge of felony driving while license suspended. The suspension stems from several unpaid civil driving infractions. The petitioner took advantage of the procedures outlined in section 318.14(10)(a), Florida Statutes, paid his fines and secured the reinstatement of his license prior to his arraignment on the felony charges. In accordance with Janos v. State, 763 So.2d 1094 (Fla. 4th DCA 1999), the trial court should have granted the petitioner’s motion to dismiss the felony charges, as the state concedes. Janos is directly on point and thus we grant the petition and remand the case to the trial court for proceedings consistent with Janos. We withhold issuance of a formal writ in full confidence the lower court will comply with the mandate of this Court and the holding of Janos.

Petition granted.

WARNER, FARMER and GROSS, JJ., concur.


text:
    Gerald L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1312.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.

      Gerald L. Smith, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying appellant’s motion for postconviction relief is summarily reversed. When a trial court denies a rule 3.850 motion without an evidentiary hearing, it must “either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)). The trial court’s order in this case does neither.

Reversed and remanded for further proceedings.

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


text:
    Rexford TWEED, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-4535.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Rexford Tweed, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, and Holly N. Simcox, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order which denied his - mandamus as time-barred under section 95.11(8), Florida Statutes. He argues, among other things, that the circuit court erroneously computed the time for filing of a mandamus petition and that therefore dismissal of the mandamus petition was incorrect. The ap-pellee has notified this court that it agrees and concedes error. We find this concession to be well-taken and accordingly the order is reversed and the cause is remanded for further proceedings.

REVERSED and REMANDED.

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


text:
    Walter E. MAGINNIS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, et al, Respondent.
    No. 1D06-5096.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Walter E. Maginnis, pro se, Petitioner.
    Bill McCollum, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The circuit court issued its order on petitioner’s petition for writ of mandamus without affording adequate time for petitioner to file a reply on the merits. Accordingly, the petition for writ of certiorari is granted and the order of the circuit court quashed. Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). The cause is remanded to the circuit court with directions to issue an order granting petitioner additional time to file a reply to the response on the merits and to thereafter dispose of the mandamus petition in light of that petition, the response, and the reply-

PETITION GRANTED.

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


text:
    STATE of Florida, Appellant, v. B.L.T., Appellee.
    No. 1D06-5755.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
   PER CURIAM.

The state seeks review of the trial court’s order holding that it lacked jurisdiction to consider the state’s request for a restitution hearing in a juvenile delinquency case. We are unable to determine from the disposition order and the comments of the trial judge (who was a different judge from the one who entered the order on appeal) whether, at the disposition hearing, the trial judge intended to award Occidental Insurance Company restitution in an amount to be determined at a later date, or whether he intended to deny the request for restitution subject to the state’s right within 60 days to again seek restitution on behalf of Occidental. If the former is the case, the trial court may proceed with a hearing to determine the amount of restitution to which Occidental is entitled. See Gladfelter v. State, 618 So.2d 1364 (Fla.1993); State v. Sanderson, 625 So.2d 471 (Fla.1993); L.O. v. State, 718 So.2d 155 (Fla.1998). If, however, the latter is the case, the trial court is without jurisdiction to proceed with a restitution hearing because no request was made within the 60-day period set in the disposition order. See C.W. v. State, 637 So.2d 28 (Fla. 2d DCA 1994); Butler v. State, 901 So.2d 922 (Fla. 2d DCA 2005). Accordingly, we reverse the trial court’s order. On remand, the trial court shall clarify its intent regarding Occidental’s restitution claim, and then proceed as outlined in this opinion.

REVERSED and REMANDED, with directions.

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


text:
    Ronald Davis SMALL, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-5876.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Ronald Davis Small, pro se, Appellant.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Ronald Davis Small appeals an order of the circuit court which denied his habeas corpus petition as time-barred under section 95.11(5)(f), Florida Statutes. The Parole Commission correctly concedes error in light of this court’s decision in Martin v. Florida Parole Comm’n, 951 So.2d 84 (Fla. 1st DCA 2007). We accordingly reverse and remand for further proceedings.

REVERSED.

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


text:
    Pamela BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1078.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Nancy Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order of involuntary inpatient placement under section 394.467, Florida Statutes. Appellant argues that appellant’s alleged waiver of her presence at the commitment hearing was insufficient and the state correctly concedes that the point has merit. Register v. State, 946 So.2d 50 (Fla. 1st DCA 2006); Brown v. State, 953 So.2d 688 (Fla. 1st DCA 2007).

The commitment order is reversed and we remand for a new commitment hearing.

REVERSED and REMANDED.

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


author: PLEUS, C.J.

text:
    Dexter BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1300.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, C.J.

Finding no error, we affirm Black’s conviction for possession of cannabis with intent to sell. However, the State correctly concedes that Black should not have been adjudicated guilty of possession of cannabis over twenty grams because it violates double jeopardy to adjudicate a defendant guilty of both offenses arising from the same criminal episode, even when based upon finding different amounts of cannabis in separate containers. Sims v. State, 793 So.2d 1153 (Fla. 4th DCA 2001). Accordingly, we reverse the conviction for possession of cannabis over twenty grams and remand for entry of a corrected judgment.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GRIFFIN and LAWSON, JJ., concur.


text:
    Winston McGILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2210.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The appellant, Winston McGill, appeals the finding of the trial court that he willfully and intentionally violated the terms of his probation, as well as the incarcerative sentence imposed by the trial court. We conclude that the trial court did not abuse its discretion in taking these actions and affirm.

AFFIRMED.

ORFINGER, MONACO and EVANDER, JJ., concur.


text:
    Ollis E. BRANTLEY, Appellants, v. Kasha BRANTLEY, Appellee.
    No. 5D07-556.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2007.
    Robert L. Appleget, Jr., Esq. and Anne E. Raduns-Owen, Trow, Appeleget & Perry, Ocala, for Appellant.
    Patricia A. Jones, Community Legal Services of Mid-Florida, Inc., Ocala, for Appellee.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to the Appellee’s confession of error and the parties’ joint stipulation, the trial court’s “Order to Pick-Up Minor Children” and transfer of venue to Arkansas is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER, MONACO, and EVANDER, JJ., concur.


text:
    Maher Mohamad FANOUS, Former Husband, Appellant, v. Dousa Graziella FANOUS, n/k/a Dousa Graziella Tourbah, Former Wife, Appellee.
    No. 1D07-1372.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Pamela A. Schneider of Wershow, Schneider, Arroyo & Talbert, P.A., Gaines-ville, for Appellant.
    Andrew G. Monaco, Gainesville, for Ap-pellee.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s orders of March 27, 2007, and April 19, 2007, the Court has determined that the Amended Final Judgment of Dissolution of Marriage to Include Award of Child Support is not a final order. Accordingly, the appeal and cross-appeal are hereby dismissed.

LEWIS, POLSTON, and ROBERTS, JJ., concur.


text:
    UNITERAMERICA, INC., d/b/a Gary Moulton Auto Center, Appellant, v. FARMERS & MERCHANTS BANK, Appellee.
    No. 1D07-1781.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Patrick R. Frank of H. Richard Bisbee, P.A., Tallahassee, for Appellant.
    Mary Kay Simpson of Huey, Guilday & Tucker, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to the Court’s order of April 16, 2007, this appeal is hereby DISMISSED. Featherstone v. McCranie, 931 So.2d 250 (Fla. 1st DCA 2006); Traveler v. Steiner Transocean Ltd., 895 So.2d 1191 (Fla. 3d DCA 2005).

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Colby SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6374.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Colby Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the February 23, 2005, judgment and sentence in Alachua County Circuit Court case number 2004-CF-2421-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Darrell Mitchell WEIDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1263.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Schopp, 653 So.2d 1016 (Fla.1995).

PALMER, MONACO and TOPRY, JJ., concur.


author: DAVIS, Judge.

text:
    Robert W. COOPER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3997.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Robert W. Cooper, Jr., challenges the trial court’s denial of his motion to withdraw plea. Cooper had pleaded no contest to two counts of child abuse in exchange for a sentence of twelve months’ community control to be followed by forty-eight months’ probation. The public defender who represented Cooper at the plea hearing subsequently prepared and filed on Cooper’s behalf a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(£), alleging that Cooper’s plea had “been involuntarily entered because he was misadvised, given incorrect information or not fully informed by his attorney” and because Cooper was suffering from a physical illness at the time he entered the plea. We reverse.

Cooper included in his motion to withdraw plea a request for conflict-free counsel. Additionally, his counsel informed the trial court of that request at the beginning of the hearing on the motion to withdraw plea, but the court failed to address the request and rather proceeded to question first Cooper and then his counsel regarding the circumstances surrounding the entry of Cooper’s no contest plea. The transcript of the hearing makes it clear that counsel and Cooper adopted adversarial positions regarding what happened while counsel was advising Cooper concerning the plea. The trial court then denied Cooper’s motion, calling into question Cooper’s credibility. Cooper now appeals that denial.

First, we note that it was error for the trial court to fail to address the request for conflict-free counsel before addressing the substantive issues raised by Cooper’s motion to withdraw plea. That error was further compounded by the fact that the trial court also failed to consider the request once it became clear that Cooper and his counsel were giving conflicting reports of what happened on the day the plea was entered. “Once it became clear that [appellant] and his counsel had adversarial positions concerning what actually happened while counsel was advising [appellant] concerning the plea, [appellant] was entitled to conflict-free counsel. The denial of the constitutional right to assistance of counsel can never be treated as harmless error.” Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (citations omitted); see also Jones v. State, 827 So.2d 1086, 1087 (Fla. 1st DCA 2002) (“At a hearing on a motion to withdraw plea, once it becomes clear a defendant and his counsel have taken adversarial positions concerning what actually happened while counsel was advising his client concerning the plea, the defendant is entitled to conflict-free counsel.” (internal quotation marks omitted)).

Because Cooper was denied conflict-free counsel at a critical stage of the proceedings, see Daniel v. State, 865 So.2d 661 (Fla. 2d DCA 2004) (noting that a hearing on a motion to withdraw plea is a critical stage of the proceedings), we reverse and remand for an evidentiary hearing at which Cooper must be represented by conflict-free counsel.

Reversed.

VILLANTI, J., and SCHOONOVER, JACK R., Senior Judge, Concur.


author: CASANUEVA, Judge.

text:
    George EDISON Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2808.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.
    Mark J. O’Brien, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

George Edison Jr., one of four codefen-dants in a trial for trafficking in drugs by the constructive possession of more than twenty-eight grams of cocaine, contends that the evidence was legally insufficient to demonstrate that he had control over the contraband. We agree and reverse his judgment and sentence.

The facts of George Edison Jr.’s case are similar to those set out in the opinions concerning two of his codefendants, Tony Person and Alonzo Edison. Person v. State, 950 So.2d 1270 (Fla. 2d DCA 2007); Edison v. State, 954 So.2d 1285 (Fla. 2d DCA 2007). Detective Rodriguez of the Fort Myers Police Department observed a number of people enter and exit a house within a short time span. Because most individuals stayed only briefly before leaving, the situation suggested that someone was selling drugs from the house. During the surveillance, Detective Rodriguez took photographs of the people who came and went, including George Edison Jr. Some, like Mr. Edison, were photographed eating ribs outside the house. At one point, however, Mr. Edison went back into the house and stayed until the events precipitating this case occurred.

About two hours after the detectives first observed Mr. Edison, the Fort Myers Police Department sent a SWAT team to execute a search warrant. As part of the warrant execution process, the SWAT team set off a loud distraction device and entered the front door. Almost immediately, ten or eleven men bolted out a back door, tripped over each other, and essentially landed in a heap just outside the door. One of those men was George Edison Jr.

Law enforcement’s suspicion that this was a drug house was confirmed by their subsequent search, which revealed that crack cocaine was being cooked in the kitchen. Detectives discovered large quantities of crack cocaine and powdered cocaine at various locations within the house, including the living room; and several guns were in plain view. A large “cookie” of crack cocaine sat on a kitchen table; razor blades and baggies were found in the cabinets, as were a potato chip container stuffed with bags of marijuana and a cigar box filled with cocaine and baggies of Ecstasy pills. In addition, nineteen individual baggies of powdered cocaine, another baggie of Ecstasy pills, and over $300 in cash were discovered outside the back door near the pile of escaping suspects.

Because he landed so close to the large quantity of drugs outside the back door, George Edison Jr. was charged with trafficking by possession of over twenty-eight grams of cocaine. At trial, he moved for a judgment of acquittal on the ground that the evidence was legally insufficient to convict him of constructive possession. Specifically, Mr. Edison contended that the State could not prove that he had control over the contraband, which is an essential element of constructive possession. See Walker v. State, 733 So.2d 564 (Fla. 2d DCA 1999). We agree with Mr. Edison that his motion for judgment of acquittal should have been granted. See Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999) (“Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred.”).

In a constructive possession case, mere proximity is insufficient to prove dominion and control over the contraband, which must be established by independent evidence. This is particularly true when there is no proof that the defendant owned or occupied the premises or was anything other than a casual visitor. See Wade v. State, 558 So.2d 107 (Fla. 1st DCA 1990). While still at the scene, George Edison Jr. gave a statement to the police and claimed that he was at that house waiting to arrange for a vehicle to be towed, whiling away the time playing video games and eating barbecue. The circumstances strongly resemble a recent case from this court involving juveniles who were discovered with marijuana in a motel room:

[T]he State utterly failed to prove that J.S.M. had dominion and control over the contraband. Because there was no evidence that J.S.M. was an occupant of the room rather than a guest, the court could not infer that he had the ability to control the contraband simply because it was in plain view. Compare Taylor v. State, 319 So.2d 114, 115 (Fla. 2d DCA 1975) (holding that circumstantial evidence of guilt emanating from the defendant’s proximity to illicit drugs in plain view was equally susceptible to the reasonable hypothesis that the defendant was a mere visitor and that the drugs were in the possession and control of the owner or other occupant of the premises), with Brown v. State, 428 So.2d 250, 252 (Fla.1983) (holding that proof of the discovery of illegal drugs in plain view in the presence of two or more joint occupants of the premises is sufficient to support a conviction for constructive possession). In a case such as this, the State must establish the element of control by independent proof.

J.S.M. v. State, 944 So.2d 1143, 1144 (Fla. 2d DCA 2006) (some citations omitted).

As in J.S.M., the State presented no evidence to establish Mr. Edison’s dominion and control over the drugs. He admitted being in the house but only as a visitor. No evidence was adduced demonstrating that Mr. Edison had drugs in his system when detained, nor were Mr. Edison’s fingerprints found on any of the weapons, money, or contraband. Although Mr. Edison was undoubtedly aware of illegal activity in the house he was visiting, there is no proof that he exerted any control over the drugs. Accordingly, we reverse the judgment and sentence and remand with instructions that he be discharged.

Reversed and remanded with instructions.

SALCINES and WALLACE, JJ., Concur.

      . In this opinion, "Mr. Edison” refers only to George Edison, Jr., not to his codefendanl brother.


author: VILLANTI, Judge.

text:
    Kent T. HUKILL, Appellant, v. Janice SHELTON, Appellee.
    No. 2D06-1834.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.
    Kent T. Hukill, pro se.
    Janice Shelton, pro se.
   VILLANTI, Judge.

Kent T. Hukill appeals the order denying Janice Shelton’s petition to terminate Mr. Hukill’s child support obligation. Ms. Shelton filed Florida Supreme Court Approved Family Law Form 12.905(b), alleging that a DNA test excluded Mr. Hukill as the father of Ms. Shelton’s daughter. We affirm the circuit court’s denial of her petition without comment. However, we note that our affirmance does not preclude Mr. Hukill from seeking any relief he may obtain under chapter 742, Florida Statutes (2006).

KELLY and LaROSE, JJ., Concur.


text:
    Eric Devon COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3040.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Eric Devon Coleman, pro se.

      Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm the denial of Coleman’s motion to withdraw his plea filed pursuant to Florida Rule of Criminal Procedure 3.170(i). However, our affirmance is without prejudice to Coleman filing a timely, facially sufficient rule 3.850 motion concerning the voluntariness of his plea. See Fla. R.Crim. P. 3.850.

Affirmed.

KELLY, VILLANTI, and LaROSE, JJ., Concur.


text:
    Montrell D. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-894.
    District Court of Appeal of Florida, Second District.
    June 6, 2007.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Montrell D. Green, pro se.
    Bill McCollum,- Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

In this Anders appeal, Montrell D. Green’s appellate counsel and Green, pro se, challenge Green’s convictions and sentences for two counts of robbery with a weapon, kidnapping, and home invasion robbery with a weapon. Following a thorough review of the record on appeal and having considered the issues raised by both counsel and Green, pro se, we have found no harmful, reversible error.

We write only to direct that the scrivener’s error in the written judgment on count two be corrected on remand. Although the jury verdict reflects that on count two Green was found guilty of simple robbery, which is a second-degree felony, and the trial court orally adjudicated him guilty of simple robbery, the written judgment improperly designates count two as robbery with a weapon, a first-degree felony. Because this error did not compromise Green’s conviction or sentence in count two, we affirm Green’s convictions and sentences, but we remand for correction of the written judgment in count two to reflect the jury verdict.

Affirmed and remanded with instructions.

STRINGER and KELLY, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: STONE, J.

text:
    William CRUZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1763.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

William Cruz, Jr. appeals his jury convictions for one count of driving while license revoked — habitual offender; one count of high-speed or wanton fleeing; one count of willful wanton reckless driving; one count of aggravated assault on law enforcement officer — deadly weapon; and one count of resisting officer without violence. He claims that his two convictions for variants of reckless driving violate double jeopardy. Cruz concedes his failure to preserve his other point on appeal concerning a jury instruction. As any error was not fundamental, we refrain from discussion of this issue and affirm as to both.

Cruz was charged by information with the aforementioned counts, following a high speed chase with multiple law enforcement officers that ended with Cruz ramming a police vehicle before coming to a stop. Four different officers made sworn statements detailing the chase.

At trial, the state presented evidence that Deputy Sheriff Primm observed a speeding vehicle and followed it. By the time the deputy stopped the speeding vehicle, he had been joined by three other deputies in separate cars — Cunningham, Nelson, and Lavosky. Cruz was the sole occupant of the errant car. When asked to turn off the car’s engine, Cruz did not, asking Primm questions instead. Cunningham walked over, looked inside the vehicle and recognized Cruz, at which point Cruz took off, accelerating. Primm followed in pursuit, lights flashing and siren activated, as did Nelson, Cunningham, and Lavosky. Cunningham’s truck was not marked but was equipped with blue lights in both the front and rear of the vehicle. The other police vehicles were completely marked with insignia and outfitted with lights and sirens.

Deputy Sheriff Mobler first heard of the chase over his police radio and then saw it coming toward him. He observed the lead vehicle, driven by Cruz, and turned in immediately behind the car as it continued into a residential area driving nearly 100 miles an hour. Mobler followed as Cruz drove across the grass, in between occupied apartment buildings, and over a cement picnic table, tearing up landscaping. Finally, Mobler attempted to “pit” the vehicle, a maneuver designed to disable a vehicle by coming up beside it and trying to spin it out, resulting in its ultimate stop. Mobler was unsuccessful with the maneuver.

The chase persisted. With Mobler behind him, Cruz made a turn as Cunningham was coming through an entrance, effectively blocking further escape. Cruz drove into Cunningham’s vehicle as the policeman veered to avoid being hit, then turned right and hit the officer’s truck a second time. Everyone came to a stop. Mobler, gun drawn, ordered Cruz out of his vehicle. Cruz complied after repeated prompts, but kept his hands out of the officer’s sight. Nelson tasered Cruz’s hand to gain control and, finally, handcuffed and arrested him. Mobler estimated Cruz’s speed at 100 miles an hour; Primm testified that Cruz was going at least ninety plus miles an hour, as the officer was going in excess of ninety and could not catch up.

Cruz argues that his conviction for both high speed or wanton fleeing and willful wanton reckless driving violates the prohibition against double jeopardy. He is correct that a double jeopardy violation would be fundamental error and can be raised for the first time on appeal. Sneed v. State, 749 So.2d 545, 546 (Fla. 4th DCA 2000). We review a double jeopardy claim de novo. State v. Florida, 894 So.2d 941, 945 (Fla.2005).

Under the test found in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “dual convictions are authorized only if each offense contains an element that the other does not.” Florida, 894 So.2d at 945. The Blockburger test is codified in section 775.021(4)(a), Florida Statutes.

The statute contains the following expression of legislative intent and exceptions:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (l), to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat.

Here, the elements of high-speed or wanton fleeing are: (1) Cruz was operating a vehicle upon a street or highway; (2) a duly authorized law enforcement officer ordered the defendant to stop or remain stopped; (3) Cruz, knowing he had been directed to stop by a duly authorized law enforcement officer, willfully refused or failed to stop the vehicle in compliance with the order; (4) the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated; and (5) during the course of the fleeing or attempting to flee, William Cruz drove at a high speed OR in any manner demonstrating a wanton disregard for the safety of persons or property.

The elements of willful wanton reckless driving, as applied to this case, are: (1) Cruz was operating a motor vehicle upon a street or highway; and (2) Cruz drove the vehicle with a willful, wanton disregard for the safety of persons or property. It is apparent that more than identical elements of proof are required. Therefore, the crimes do not meet the Blockburger test. As clear is the fact that these are not degrees of the same offense. Further, the question presented is whether wanton and willful reckless driving is either a category one lesser-included offense of high-speed or wanton fleeing, or subsumed by the greater offense.

In the amendments to Standard Jury Instructions—Criminal Cases (99-1), 765 So.2d 692, 705 (2000), the Supreme Court of Florida listed the lesser-included offenses for section 316.1935(3), Florida Statutes, the fleeing statute for which Cruz was convicted. The only category one lesser-ineluded offense is fleeing to elude, section 316.1935(2). On this, the trial court properly instructed the jury. The only category two lesser-ineluded offense named is reckless driving, section 316.192, Florida Statutes — the other statute for which Cruz was convicted. “However, subsection (4)(b)(3) applies only to necessarily lesser included offenses listed in Category 1 of the Schedule of Lesser Included Offenses.... ” Florida, 894 So.2d at 947 (citing to section 775.021(4)(b)(3), Fla. Stat.). This leads to the conclusion that Cruz’s conviction for these two offenses did not violate double jeopardy.

Further, the state contends that section 316.1935 allows multiple prosecutions when a defendant eludes more than one law enforcement officer, even when all offenses flowed from one episode.

Cruz was charged with violation of section 316.1935(3)(a), Florida Statutes, which reads:

(3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:
(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

In State v. Mitchell, 719 So.2d 1245, 1248 (Fla. 1st DCA 1998), another case involving one count of reckless driving and one count of aggravated fleeing, the First District applied the Grappin/Watts “a/any test” and concluded that “the legislature clearly intended that the commission of multiple acts of fleeing or attempting to elude a law enforcement officer be prosecuted as discrete offenses notwithstanding that all occurred during a single episode.” See also Murphy v. State, 723 So.2d 313 (Fla. 1st DCA 1998).

In the instant case, the state presented eyewitness testimony from three separate officers in three separate cars, from whom Cruz had fled. Some officers witnessed his high speed fleeing, while another observed his reckless disregard for people and property while driving. This is clearly a situation contemplated by the statute.

Therefore, we conclude that, under any analysis, double jeopardy is not implicated, and affirm.

GUNTHER and FARMER, JJ., concur.

      . "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

      . The effect of the statutory amendment codifying Blockburger was to return our state's double jeopardy law to its pre-Carawan state. Collins v. State, 577 So.2d 986 (Fla. 4th DCA 1991); see also Carawan v. State, 515 So.2d 161 (Fla.1987).

      .Sub-section (1), also known as the rule of lenity, reads: "The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorable to the accused.” § 775.021(1), Fla. Stat.

      . The Grappin/Watts test is drawn from two decisions, Grappin v. State, 450 So.2d 480 (Fla.1984), and State v. Watts, 462 So.2d 813 (Fla.1985), and stands
      for the proposition that when a question arises regarding the unit of prosecution intended by the legislature in a particular criminal statute, use of the article ‘a’ will result in the conclusion that the legislature clearly intended that the commission of multiple proscribed acts in the course of a single episode be prosecuted as discrete offenses; whereas use of the article 'any' will result in the conclusion that the statute is ambiguous as to legislative intent and, as a result, in application of the rule of lenity to prohibit more than one application.

        Mitchell, 719 So.2d at 1247.