author: ALTENBERND, Judge.

text:
    D.A.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1499.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2006.

      James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

D.A.W. appeals an order withholding adjudication of delinquency for obstructing an officer without violence. We reverse. The trial court erred in denying D.A.W.’s motion for judgment of dismissal because the State presented no competent, substantial evidence to support a finding that D.A.W. opposed or obstructed an officer. D.A.W.’s conduct was the type of verbal harassment that, while understandably annoying to any reasonable police officer, does not rise to the level of obstruction necessary to permit a conviction that is not violative of First Amendment principles. We therefore reverse the order withholding adjudication of delinquency.

At the adjudicatory hearing, the State’s case rested entirely on the testimony of one Tampa police officer. On September 3, 2004, in the late afternoon, this officer was sent to a residential neighborhood to investigate a robbery in which a group of teenagers had taken a bicycle from another teenager. The officer remained in the general area while he completed his report because the youths were causing a “constant problem.” As he was finishing the report, he was dispatched to investigate a fight involving twenty to thirty people at the same location where the robbery had allegedly occurred. As the officer approached the group of people in his marked police car, he observed “kids fighting in the middle of the street.” When they saw the police car, they began to “disperse, running.”

The officer noticed one youth wielding a beer bottle as a weapon and proceeded to arrest this youth. According to the officer, while he was in the process of arresting the youth, D.A.W. and another person stood at a distance of fifteen to thirty feet away and “harassed” the person in custody, “making threats” and “antagonizing” the youth. The officer told D.A.W. and his friend to leave more than three times, but they did not.

Once the suspect was detained, the officer turned his attention to D.A.W. and his friend and told them he wanted to speak with them “to continue the investigation.” Although the officer told the youths this, he had no reason to suspect that D.A.W. or the other youths were involved in the earlier robbery. He did not claim that the street fight was a basis for a Terry stop of D.A.W.; indeed, he had asked the youths to leave after that fight. As the officer tried to approach the boys, the two boys turned away and left. The officer contacted other nearby officers, who ultimately detained D.A.W. and arrested him for obstructing an officer without violence in violation of section 843.02, Florida Statutes (2004).

It is significant to note that the officer did not testify that D.A.W. was threatening the officer or trying to convince any of the youths who had fled to return to harm the officer. The officer did not testify that he feared for his own safety or that D.A.W. was taking actions that caused him to believe that D.A.W. was planning to come any closer to the arrest scene than his distance of fifteen to thirty feet. The officer was not forced to interrupt the arrest process to deal with public safety concerns or other issues arising from D.A.W.’s conduct. The officer’s testimony established only that D.A.W. was taunting the juvenile who had been arrested.

In D.G. v. State, 661 So.2d 75 (Fla. 2d DCA 1995), this court explained:

If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency, that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction. Thus, obstructive conduct rather than offensive words are normally required to support a conviction [for obstructing an officer without violence].

Id. at 76; see also J.G.D. v. State, 724 So.2d 711 (Fla. 3d DCA 1999) (reversing delinquency for obstruction without violence based upon defendant’s failure to obey a police command to leave an apartment complex where an unruly crowd had gathered; holding that “loud and profane” but “non-violent protest,” without any other “cognizable wrongdoing,” did not justify the police order).

This distinction between verbal harassment and obstructive conduct is not only consistent with the definition of this offense as set forth in section 843.02, but it is also necessary to ensure that the offense as defined does not infringe upon rights of free speech under the First Amendment. See Wilkerson v. State, 556 So.2d 453, 455-56 (Fla. 1st DCA 1990) (“We conclude that the use of ‘oppose’ - in conjunction with ‘obstruct’ manifests a clear and unambiguous legislative intent to proscribe only acts or conduct that operate to physically oppose an officer in the performance of lawful duties.”).

In this case, the trial court appears to have been confused or misled by the above-quoted explanation in D.G. that refers to a police officer “who is not engaged in executing process on a person.” The trial court assumed that if the police officer was arresting the other juvenile while D.A.W. was engaging in harassment, that the arrest situation automatically permitted this charge. The language in D.G., however, was intended to distinguish between a person who was alleged to have opposed or obstructed an officer when the officer’s conduct was directed to that person. That is, when the officer is not executing process on that person, legally detaining “that person,” or has not asked that person for assistance in an ongoing emergency, then “that person’s” actions must normally be physically obstructive, not merely verbally harassing, in order to support a conviction for obstructing an officer without violence. In D.G., we merely explained that section 843.02 applies to situations where a person resists, obstructs, or opposes an officer or any other person who is engaged in the “lawful execution of any legal duty.” An arrest situation, particularly one involving the person alleged to have opposed or obstructed the officer, makes it easier to establish that the officer is engaged in the lawful execution of a legal duty. Nevertheless, a person’s exercise of free speech, without more, in an open public place while an officer is engaged in the execution of a legal duty must do more than merely irritate, annoy, or distract the officer to constitute a crime.

The evidence from the police officer in this case did not establish that D.A.W. had committed a crime. D.A.W. remained at a distance and did not approach the officer or physically threaten the officer or arres-tee, which distinguishes this case from the facts presented in M.M. v. State, 674 So.2d 883 (Fla. 2d DCA 1996) (affirming order withholding adjudication for resisting an officer without violence where defendant approached officer from behind, leading officer and a witness to believe the defendant was going to jump on the officer). Further, D.A.W.’s mere presence at a distance of fifteen to thirty feet away was not impeding the officer’s arrest of his suspect. Cf H.A.P. v. State, 834 So.2d 237 (Fla. 3d DCA 2002) (affirming order withholding adjudication of delinquency for obstructing an officer based upon evidence that H.A.P.’s physical presence impeded police in execution of search warrant and that his verbal harassment began to draw a large crowd). Although in explaining his reason for the arrest the officer used the legal phrase, “exciting the riot,” there is no evidence in the record of any group of people who could have been incited to violence, or evidence that the content of D.A.W.’s speech was intended or likely to accomplish this. There is no evidence that D.A.W. made any statements encouraging anyone to take action against the police officer. The State thus failed to present evidence that D.A.W. engaged in obstructive conduct that could support any finding of delinquency. We therefore reverse the order withholding adjudication of delinquency and remand with instructions to discharge D.A.W.

Reversed and remanded.

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

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Both sections 843.01 and 843.02, Florida Statutes (2004), in light of the punctuation used in the statutes, could be read to apply broadly to officers, whether or not engaged in the execution of a legal duty, and separately to any “other person” "in the lawful execution of any legal process.” The case law does not appear to have ever adopted that approach, and the supreme court has read the statute more narrowly to require the officer to be in the lawful execution of a legal duty. See State v. Henriquez, 485 So.2d 414 (Fla.1986).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jason THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4196.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.

      Jason Thompson, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

The appellant, pursuant to rule 3.800(a), challenges the sentence imposed after the lower court revoked his youthful offender probation. The judge determined that Thompson committed the crime of possession of cannabis, which the judge found to be a substantial violation of probation, and sentenced Thompson to an eleven-year prison term. Thompson claims the judge violated the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the judge increased his sentence beyond the six-year limit for violations of youthful offender probation, as described in section 958.14, Florida Statutes, by making findings of fact as to the nature of the violation. We disagree and affirm.

Thompson’s argument that his sentence is illegal misconstrues both section 958.14 and Apprendi. Section 958.14 restricts a court to a sentence of six years in prison “for a technical or nonsubstantive violation” of the youthful offender probation. However, where the violation is a substantive violation, the punishment cannot be “longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated.” § 958.14, Fla. Stat. In essence, there is a six-year cap for technical violations of a youthful offender probation sanction, but no such cap if the defendant committed a substantive violation.

In this case, the lower court concluded Thompson substantively violated his probation by committing the crime of possession of cannabis, as evidenced by a positive drug test. This legal conclusion is supported by precedent. See Henderson v. State, 720 So.2d 1121, 1123 (Fla. 4th DCA 1998) (suggesting “testing positive for marijuana may qualify as a substantive violation”) (citing Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997)); see also Buckins v. State, 789 So.2d 1184, 1185 (Fla. 4th DCA 2001) (noting a defendant who tested positive for cocaine substantially and willfully violated the conditions of his probation). Because the lower court found a substantive violation, the court was not bound by the six-year cap found in section 958.14.

Further, Apprendi does not apply in this case. There, the supreme court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The key term is “fact,” as the jury is not entitled to make legal determinations; questions of law are within the exclusive province of the court. In this case, Thompson incorrectly argues that the determination that the violation is technical or substantive is a “finding of fact” as understood from Apprendi. It is not a “finding of fact” but instead a legal determination. Thus, the lower court did not violate Thompson’s due process rights as described in Apprendi.

The lower court dismissed Thompson’s motion, instead of denying it on the merits, possibly believing the issue had been raised and rejected on direct appeal and in a prior petition for writ of habeas corpus. We believe the issue presented in the instant motion was sufficiently distinct from the prior pleadings to allow for consideration on the merits. However, as described above, from the face of the record and the applicable law, Thompson is not entitled to the relief he seeks. Thus, the lower court should have denied relief on the merits and not dismissed the case as procedurally barred. Remand for such an order would be a waste of judicial resources and thus we choose to affirm on the merits. See generally Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006) (refusing to remand for the entry of an order changing the disposition from denial to dismissal).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


author: TAYLOR, J.

text:
    John ROSARIO, Appellant, v. Elaine ROSARIO, Appellee.
    No. 4D05-3522.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.

      Robert I. Barrar of the Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for appellant.
    Alan D. Sackrin of the Law Office of Alan D. Sackrin, Hallandale Beach, for appellee.
   TAYLOR, J.

John Rosario (former husband) appeals a final judgment of dissolution which, inter alia, awarded Elaine Rosario (former wife) the former husband’s entire share of equity in the marital home as lump-sum alimony. The former husband seeks reversal of the lump-sum award, arguing that there were no circumstances justifying the award. He also requests reversal of the special equity award in the marital home to the former wife. We reverse the lump-sum alimony award, but affirm the special equity award.

The parties were married for fourteen years before the petition for dissolution of marriage was filed. They had two children, who were ages six and eleven at the time of the hearing. The oldest child, Jennifer, has continuing health issues, as a result of a liver transplant in January 2000. The trial court granted the parties shared parental responsibility, with the former wife as the primary residential parent.

The 39-year-old former husband is a network analyst, earning $40,000 a year in salary from his employment. He also co-owns a corporation called Genisys, which buys and sells electronic equipment. According to the former husband, $10,000 of his household bills were paid annually from Genisys Corporation funds. The trial court determined his annual income totaled $50,000.

The former wife is 37 years old and suffers from Crohn’s disease. She contracted the Human Papilloma Virus (HPV), a sexually transmitted disease, which required her to undergo surgery to remove pre-cancerous cells. Based upon the former husband’s admission that he had been unfaithful, the trial court found it “highly likely” that the former wife contracted the HPV from the former husband.

The former wife has a bachelor’s degree in meteorology, but works as a teacher’s aide, making $9,000 a year. Although she worked part-time most of the marriage, she was mainly a “stay-at-home mom” by agreement of the parties. She requested $1,000 a month in permanent periodic alimony, plus her husband’s share of the equity in the marital home as lump-sum alimony.

The parties’ major asset is the marital home, valued at $330,000, which, as of April 19, 2005, was subject to a $96,000 mortgage, including unpaid mortgage payments for a four-month period. After determining that there was approximately $230,000 in equity in the marital home, the trial court granted the former wife a special equity of $20,000, leaving a net approximate marital equity of $210,000. The special equity awarded the former wife was based on the trial court’s finding that the former wife’s family members gave her a gift of $20,000 for the down payment on the marital home.

The trial court awarded the former husband his personal property, including a jet ski, valued at $35,000. It did not value the former husband’s one-half interest in Geni-sys Corporation, but awarded it to him. The court awarded the former wife the household furnishings and her jewelry, valued at $25,000. The court made the former husband solely responsible for the $10-12,000 tax liability of Genisys Corp. and his $10,000 student loans.

In assessing the alimony issue, the trial court stated that three factors were significant:

A. The Wife’s Crohn’s Disease factor is a significantly less factor in her physical condition, acknowledging it was a congenital disorder. The Court finds the H.P.V. to be a much more significant factor.
B. The Court also looked at the financial resources of the parties, that the Husband has made more in the past and more importantly he has the capacity to make significantly more money in the future. Particularly in light of the fact that his interest in Genisys Corporation is a viable income for future income that can be significant.
C. The Wife has contributed homemaking services during the intact marriage. The Court acknowledges that the minor child, Jennifer, has medical needs which were more significant in the past when she had a liver transplant and after the transplant was the primary focus of the Wife’s time, by agreement of the parties. The Court acknowledges that currently the condition of the child is not anywhere as demanding on the mother or the child as it relates to those conditions. The Court finds that the Wife shall be entitled to alimony.

The trial court found that the parties’ net assets were $210,000 (the balance of the net equity in the marital home after deducting the wife’s special equity in the home of $20,000). Though the court acknowledged that the former husband would ordinarily be entitled to $105,000 as his share of equitable distribution, it awarded this amount to the former wife as lump-sum alimony. The trial court did not explain why this award was fair and reasonable under the circumstances. The effect was to award $255,000 in net assets to the former wife and only $15,000 to the former husband. This resulted in a grossly unequal division of the assets. The former wife received 94% of the assets and the former husband, 6%. The former wife received the marital home, free of all claims of the husband, subject only to the mortgage and.an approximately $4,000 ar-rearage. In .addition, the trial court awarded, the former wife $600 per month as permanent periodic alimony.

The trial court ordered the former husband to pay guidelines child support of $896 per month and ordered him to pay $5,000 of the former wife’s $9,300 attorney’s fee bill, which had largely been paid by the former wife’s parents.

In dissolution cases, the trial judge has broad discretionary authority to do equity between the parties. Acker v. Acker, 904 So.2d 384, 388 (Fla.2005). Available remedies include lump-sum alimony, permanent periodic alimony, child support, and an award of exclusive possession of property. Canakans v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Because these remedies are interrelated as part of an overall scheme, it is “extremely important that they also be reviewed by appellate courts as a whole, rather than independently.” Id. In reviewing these cases, the appellate court must recognize the superior vantage point of the trial judge and apply the “reasonableness” test to determine whether the trial judge abused its discretion. Id. at 1203. “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Id.

A trial court is authorized by statute to award permanent periodic alimony, lump-sum alimony, or both. See § 61.08, Fla. Stat (2006). In considering an alimony award, the trial court is authorized to consider any factor necessary to do justice between the parties, including adultery. Id.

However, two predicates have evolved for the award of lump-sum alimony. The first of these is that the trial court must find some special necessity for lump-sum payment of alimony. See Porzio v. Porzio, 760 So.2d 1075, 1077 (Fla. 5th DCA 2000); Glazner v. Glazner, 693 So.2d 650, 652 (Fla. 5th DCA 1997); Simpson v. Simpson, 372 So.2d 526, 527 (Fla. 4th DCA 1979). If support is needed, there must exist unusual circumstances which would require a non-modifiable award of support. Glazner, 693 So.2d at 652. These findings of special circumstances must be something above and beyond the justifications for an award of permanent periodic alimony. See Jessee v. Jessee, 839 So.2d 842, 843 (Fla. 3d DCA 2003).

Here, the trial court found that the parties’ fourteen-year marriage fell within the gray area for purposes of determining alimony. Although the trial court made general findings sufficient to justify periodic alimony, it did not make any special findings as to why a lump-sum award was appropriate. This alone constitutes an independent ground for reversal. The former husband, however, focuses his argument on the general rule articulated in Canakaris, that a trial judge must ensure that neither spouse passes automatically “from prosperity to misfortune” or is “shortchanged.” 382 So.2d at 1204. He contends that the award of lump-sum alimony is appropriate only where it will not substantially endanger the paying spouse’s “economic status.” Glazner, 693 So.2d at 652 (quoting Canakaris, 382 So.2d at 1201). According to the former husband, the lump-sum award in this case, which reduced his net worth from $120,000 to $15,000, violates these principles by substantially endangering his economic status.

In two cases factually similar to this case, the Third District Court of Appeal reversed orders awarding a spouse the marital home as lump-sum alimony where the circumstances did not demonstrate justification for the award. See Perez v. Perez, 882 So.2d 537 (Fla. 3d DCA 2004); Jessee, 839 So.2d at 842. In Perez, the trial court awarded the former wife the husband’s $50,000 share of the equity in the marital home as lump-sum alimony, resulting in 82% of the parties’ assets being distributed to the former wife and only 18% to the former husband. Similarly, in Jessee, after a nineteen-year marriage, the trial court awarded the former wife the husband’s $55,000 equity in the marital home as lump-sum alimony. Because the marital home was the parties’ principal asset, this resulted in the former wife receiving 97% of the parties’ assets and the former husband receiving only 3%.

In both Perez and Jessee, the third district reversed the lump-sum award of the husband’s equity in the marital home and remanded for entry of an order giving the former wife exclusive use and occupancy of the home during the minority of the children and directing that the home be sold and its proceeds divided upon the youngest child reaching majority.

The Jessee court explained:

This [lump-sum award] results in an unequal distribution of the parties’ marital assets (97% to the former wife and 3% to the former husband). Where the circumstances show no necessity nor legal justification, a distribution of marital property that creates such an inequitable impact constitutes an abuse of discretion.

889 So.2d at 843.

In this case, there was similarly an unequal distribution of the parties’ marital assets and no showing of necessity or legal justification by the circumstances. Accordingly, we reverse that portion of the final judgment of dissolution which awarded the former wife the marital home as lump-sum alimony. On remand, the trial court may consider entering an order granting the former wife exclusive use and occupancy of the marital home until the youngest child reaches the age of majority, at which time the house could be sold and the proceeds equitably divided between the parties. In addition, the trial court on remand can re-examine the amount of permanent periodic alimony it awarded, if necessary, and the parties’ relative responsibilities for paying the mortgage, taxes, and insurance. See Perez, 882 So.2d at 539 (“The court may make such other modifications in the judgment as may be appropriate in light of this ruling.”).

Because we find no merit in the former husband’s challenge to the trial court’s special equity finding, we affirm the award of $20,000 in special equity to the former wife.

Affirmed in part, Reversed in part, and Remanded.

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


author: WARNER, J.

text:
    Watisha TOMMIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4502.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.

      Tara A. Finnigan of Tara A. Finnigan, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

After the appellant, Watisha Tommie, pled guilty to grand theft and was sentenced to four years in prison, she moved to withdraw her plea, claiming that she had been misinformed as to the length of prison sentence she could receive. The court denied the motion and she appeals, arguing that fundamental error occurred when the trial court failed to appoint conflict-free counsel to represent her at the motion to withdraw hearing. We conclude that the court did not err because no patent conflict was present.

Tommie was informed against for grand theft, which arose out of her use of two credit cards held by other persons. The state offered her a sentence of two years in prison, but Tommie declined. She then changed her plea to guilty and at sentencing requested a sentence of probation. The court conducted the standard plea colloquy, including advising Tommie that the maximum sentence was five years. After hearing from the victims of the theft, the court sentenced her to four years in prison.

Shortly after the sentence was imposed, Tommie filed a motion to withdraw her plea pursuant to Florida Rule of Criminal Procedure 3.170(i). In the motion she claimed that she was told by her counsel, Barbara Wolfe, that her sentence could range from probation to prison, but she was not told that she could receive up to five years in prison. Had she been so informed, she would have accepted the state’s offer instead of pleading to the court. The motion was filed by Wolfe.

At the hearing, Wolfe told the court that she had advised Tommie that she could receive prison, but did not tell her the maximum prison sentence. Tommie testified that when the state offered her two years, Wolfe said to her, “I tell you what let’s go plea before the Judge and get a better deal.” Tommie further stated that Wolfe “told me I could get two years or a lot of probation.... And, I say well how much probation and she say, I can’t promise you how much probation but if he gives you probation it’s going to be a lot.” When the state asked Tommie if she thought she could get more than two years in prison if she pled guilty, Tommie responded, “I really don’t know.” When asked a second time, Tommie answered that she did not think she could get more than two years: “I figured it was either the two years or a lot of probation.”

Wolfe also testified and admitted that she did not inform Tommie of the maximum possible prison sentence. During Wolfe’s direct examination, Wolfe testified:

I did not specify what her sentence could be, the limits of her sentence but I did tell her she could get a prison sentence. I didn’t specify what it — what it could be. I did tell her that it would be up to the court and that if she did plea to the court there were no guarantees of what would happen.

After the direct examination, Wolfe stated:

I do feel some responsibility for not having advised my client better in this matter. We didn’t discuss that she could have gotten up to five years in prison. I never specifically gave her that information. And, I believe it did effect [sic] her decision to take a chance and plead up to the court. And, if she had been fully informed about the maximum sentence that she could have received, it may have effected [sic] her decision about whether or not to accept the State’s offer.

After hearing the evidence, the trial court concluded that Tommie “pled to four third degree felonies with maximum penalties of five years. She was informed of this fact by the Judge before her plea. She said she understood that and that she was not promised anything in order to get her to plea.” Accordingly, the court denied her motion to withdraw her plea. This appeal follows.

It is well-established that a criminal defendant facing incarceration has a right to effective assistance of counsel at every critical stage of the proceedings against him or her. Padgett v. State, 748 So.2d 70, 72 (Fla. 4th DCA 1999). A hearing on a 3.170(1) motion to withdraw a plea after sentencing is a critical stage of the proceedings. Id. at 72-73. If it becomes apparent during a hearing on a motion to withdraw that counsel and the client are taking opposing and thus adversarial positions, it is incumbent on the court to provide the defendant with conflict-free counsel. Id. at 73. See also Iaconetti v. State, 869 So.2d 695, 699-700 (Fla. 2d DCA 2004); Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (“Once it became clear that Garcia and his counsel had adversarial positions concerning what actually happened while counsel was advising Garcia concerning the plea, Garcia was entitled to conflict-free counsel.”).

Tommie claims that the court committed fundamental error by failing to appoint conflict-free counsel for her at the hearing because she and her counsel took adversarial positions as to Wolfe’s advice to her. However, we do not find that there was any apparent conflict between Wolfe’s téstimony and Tommie’s testimony. Wolfe admitted that she never told Tommie how much time she could serve in prison — her maximum sentence. Tommie testified that she believed that her sentence could be two years or probation, but she did not know if she could get more than that. The testimony is consistent, because Tommie claimed that she did not know she could get more than two years, and Wolfe admitted that she did not tell her how much time she could serve.

In Smith v. State, 845 So.2d 937 (Fla. 5th DCA 2003), the Fifth District found a conflict between the defendant and counsel where Smith testified during an evidentia-ry hearing that he did not understand the severity of this ease or the harshness of his sentence, and his counsel testified that he felt Smith was fully advised as to what he was doing. The court held that “once it became clear that Smith and his attorney had taken adversarial positions concerning the advice Smith had received concerning his plea, Smith should have been afforded the opportunity to have the benefit of conflict-free counsel to present his position.” Id. at 938.

The Fifth District clarified Smith in Carmona v. State, 873 So.2d 348 (Fla. 5th DCA 2004), and explained that when a patent conflict of interest arises between counsel and client in a motion to withdraw proceeding, the court has a duty to offer the client conflict-free counsel. “It is only when conflict becomes obvious ... that the trial judge is obligated to intervene into the attorney-client relationship to offer conflict [free] counsel.” Id. at 350.

Here, we cannot say that there was any obvious conflict between counsel and Tommie. Instead, it appears that Wolfe was supporting her client and admitted that she may have been ineffective in failing to fully inform her client of the sentencing possibilities and that misinformation did occur. Despite this admission, the trial court determined that prior to taking the plea, the court itself had informed Tommie of the sentencing maximum, and she stated that she understood. Thus, after hearing the evidence from Tommie and her counsel as well as a review of the plea hearing, the trial court found that Tommie was aware that she could be sentenced to five years, and she was only sentenced to four. Thus, any deficiency in counsel’s advice was cleared up by the information the court provided during the plea colloquy. See Bond v. State, 695 So.2d 778 (Fla. 1st DCA 1997).

Because no obvious conflict was apparent between counsel and defendant, the court did not fundamentally err in failing to appoint conflict-free counsel. Because there was competent, substantial evidence supporting the trial court’s ruling after a full evidentiary hearing, we affirm.

Affirmed.

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


text:
    Samuel L. NEWBY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3555.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Samuel Newby, was found guilty by jury of burglary of a dwelling, resisting an officer without violence, and petty theft. He was sentenced to fifteen years in prison as a Prison Releas-ee Reoffender (PRR) on the burglary conviction. We affirm, rejecting appellant’s contention that the trial court erred in relying on a certified letter from the Department of Corrections to establish his release date under the PRR statute. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006); see also Corker v. State, 937 So.2d 757 (Fla. 4th DCA 2006); Rivera v. State, 939 So.2d 1197 (Fla. 4th DCA 2006). As we did in the above-cited cases, we certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005).

We also reject appellant’s argument that the PRR statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Kijewski v. State, 773 So.2d 124 (Fla. 4th DCA 2000), rev. denied, 790 So.2d 1105 (Fla.2001); accord McDowell v. State, 789 So.2d 956, 957-58 (Fla.2001); Sheffield v. State, 794 So.2d 592, 594-95 (Fla.2001); Parker v. State, 790 So.2d 1033, 1035 (Fla.2001).

Because the judgment of conviction incorrectly reflects that appellant entered a plea to these charges, we remand for correction to reflect that he was tried by jury.. See Baker v. State, 925 So.2d 484 (Fla. 4th DCA 2006); Browning v. State, 932 So.2d 1150 (Fla. 2d DCA 2006); Quintero v. State, 939 So.2d 333 (Fla. 4th DCA 2006).

Affirmed, but remanded to correct the scrivener’s error in the judgment.

STEVENSON, C.J., and STONE, J., concur.


text:
    T.B., Appellant, v. M.M., Appellee.
    No. 2D05-4916.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Deborah Cerminaro Eldridge of El-dridge Law Office, P.A., St. Petersburg, for Appellee.
   ALTENBERND, Judge.

T.B. appeals an order dismissing his paternity action, which alleged that he was the father of M.M.’s child. The trial court dismissed the action because M.M. married another man after she was served with the paternity action and the second man acknowledged that he was the father of the child. The second man is not a party to this lawsuit. We reverse because we conclude that neither existing case law nor the provisions in section 742.091, Florida Statutes (2004), compels dismissal of this action.

M.M. had a relationship with T.B. and lived with him for approximately two years. They stopped living together in late October 2002. In December 2002, however, T.B. apparently returned and lived with M.M. until May 2008.

M.M. had a friendship with another man. When she broke up with T.B. in October, she had sexual relations with this second man. Roughly nine months thereafter, in July 2008, she gave birth to a child. The record suggests that neither party has conducted any DNA testing to determine the child’s biological father.

Both men were present in the delivery room when the child was born. Apparently, neither man’s name was placed on the birth certificate at that time. Since M.M. was released from the hospital, she has lived with the second man and he has allegedly supported the child.

On April 13, 2005, T.B. filed a paternity action asking the trial court 'to determine whether he is the biological father of the child. In the complaint, T.B. sought shared parental and primary residential responsibility for the child if he were to be declared the biological father. Although T.B. also sought child support from M.M. based upon his request for primary residency of the child, he clearly understands that he will be legally responsible to support this child if he is declared the biological father but not the primary residential parent.

The action was served on M.M. on April 16, 2005. On April 18, she and the second man obtained a marriage license. They were married at a ceremony on April 25. The second man also signed an acknowledgment of paternity and, presumably based upon that acknowledgment, a birth certificate was issued on April 26 showing the second man as the father of the child.

Based on these events occurring after the filing and service of the paternity action, M.M. filed a “verified” motion to dismiss the complaint. The trial court held a hearing at which the parties testified, despite the trial court’s correct observation that a motion to dismiss is properly decided upon the allegations in the complaint. Thereafter the trial court entered an order dismissing the action with prejudice.

Although the procedure in the trial court was unusual, we do not reverse this order on that basis. For practical purposes, the trial court entered the equivalent of a summary judgment based on the undisputed facts of the marriage and acknowledgment of paternity. Thus, the dis-positive legal issue is whether a paternity action that states a proper claim on the date it is filed and served may be barred if the mother subsequently marries a second man who files an acknowledgment of paternity. We conclude that such defensive steps are not an automatic bar to the paternity action.

There is no question that the law protects the legitimacy of a child bom to an intact marriage. See G.F.C. v. S.G., 686 So.2d 1382, 1385 (Fla. 5th DCA 1997); see also Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604, 607-08 (Fla.2006); S.D. v. A.G., 764 So.2d 807, 809 (Fla. 2d DCA 2000); S.B. v. D.H., 736 So.2d 766, 767 (Fla. 2d DCA 1999). In I.A. v. H.H., 710 So.2d 162 (Fla. 2d DCA 1998), this court extended that protection to a child whose parents were both listed on the child’s birth certificate at the time the child was born and who married two months after the child’s birth. Id. at 164-65. We did so in part based upon the provisions of section 742.091, which reads:

If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock, and upon the payment of all costs and attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in s. 742.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.

The undisputed evidence in I.A established that the mother’s husband was the “reputed” and legally recognized father of the child. 710 So.2d at 164-65. In addition, although the petitioner in I.A. alleged that he was the biological father of the child, he did not file an action seeking paternity until the child was three years old.

M.M. argues that this case is controlled by LA. and section 742.091 because the actions following the service of the paternity complaint establish a legal father for the child that prohibits any challenge to the child’s parentage. We disagree. In this case, in light of the fact that both men were present in the delivery room and neither was clearly identified as the legal father of the child upon birth, there was no established “reputed” father. Thus, there was no evidence presented that T.B. neglected his claim of paternity in the face of an obvious competing claim by another man. More important, on the date this action for paternity was filed, there was no marriage, “intact” or otherwise, to prevent the claim. Even if M.M. and the second man had the best of intentions when they married and filed the acknowledgment of paternity in this case, we hesitate to give a mother the right to block a biological father’s right to determine paternity by her marriage to another man during the pen-dency of a paternity action. We decline to further extend I A to include the facts of this case.

We conclude that the provisions of section 742.10(1) are more applicable to these proceedings than those in section 742.091. Section 742.10(1) explains that chapter 742 “provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.” It explains that “[i]f no adjudicatory proceeding was held [to determine paternity], a notarized voluntary acknowledgment of paternity” creates a “rebuttable presumption” of paternity. Thus, M.M. has established nothing more at this stage of the proceedings than a rebuttable presumption that her current husband is the legal father of her child.

Accordingly, we reverse and remand this action for further proceedings. Because the second man is now named on the birth certificate, it would appear that he must be named as a party in the action. If a DNA test establishes the second man’s paternity, this matter will be easy to resolve. If not, it appears that the trial court may be handling a matter of first impression.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.

      . Further, we note that section 742.09 l's language about dismissing the paternity action seems to assume that the reputed father would be the defendant in the paternity action, not an uninvolved third party. This portion of chapter 742 was originally added when it was the "bastardy” chapter and only women were allowed to bring the action. See Ch. 57-267 § 1, Laws of Fla. At that time, then, the reputed father would necessarily have been the defendant in the pending action. Nothing in the amendments to this chapter since 1957 causes us to believe that the legislature has intended to permit a marriage to a third party to become an effective affirmative defense by the mother to a paternity action brought by a putative father.


text:
    R.R.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-449.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

R.R.G. appeals the trial court’s order withholding adjudication of delinquency and placing her on probation for the offense of petit theft. R.R.G. argues that the case should be retried because the trial judge failed to act as a neutral and impartial arbiter when she lost her patience and assumed the role of a prosecuting attorney.

We have carefully reviewed the record in this case. At the inception, it was a rather typical trial of several juveniles for shoplifting at a large store. R.R.G.’s mother and father were present during the proceedings, as were the parents of another juvenile. The State first presented the testimony of the store’s loss prevention officer, who provided sufficient evidence to prove the State’s case. To clarify the precise identity of each juvenile, the State called R.R.G.’s father. He was very uncooperative during the examination by the assistant state attorney. Once the trial judge sensed that the father was being disingenuous, she became actively involved in asking questions.

Although the trial judge asked the witness questions merely to obtain honest answers that had not been forthcoming to the prosecutor’s questions, by the end of the questioning, the trial court had ejected both of R.R.G.’s parents from the courtroom. At the conclusion of closing arguments, the trial court also engaged one of the other parents in an unsworn, nontesti-monial “cross-examination.” Overall, the transcript of this hearing suggests that, to some degree, the trial court lowered itself to the level of the conduct of the participants, rather than convincing them to raise their conduct to the level of the court.

Although the issue is very close, we conclude that the trial court did not cross the line of judicial neutrality during the evidentiary stage of this proceeding and that any error in the later stages of this hearing was harmless in reference to the disposition in this case. See Williams v. State, 901 So.2d 357 (Fla. 2d DCA 2005). The judge’s actions, however, may not have been harmless to the perception of justice in the eyes of those who witnessed the events.

In reversing a judgment in a death penalty case, the supreme court once eloquently stated:

We canonize the courthouse as the temple of justice. There is no more appropriate justification for this than the fact that it is the only place we know where the rich and poor, the good and the vicious, the rake and the rascal — in fact every category of social rectitude and social delinquent — may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner. Such a pattern for administering justice inspires confidence.... The judge must above all be neutral and his neutrality should be of the tough variety that will not bend or break under stress. He may ask questions to clarify the issues but he should not lean to the prosecution or defense lest it appear that his neutrality is departing from center. The judge’s neutrality should be such that even the defendant will feel that his trial was fair.

Williams v. State, 143 So.2d 484, 488 (Fla.1962).

This, of course, is not a capital case; it is a juvenile proceeding resulting in a withhold of adjudication. It is, however, still a courtroom where the “rich and poor, the good and the vicious,” and the “social delinquent” may enter with assurance of a calm and dispassionate environment in which an impartial judge adjudicates their rights in a fair and just manner.

Typically, this court has the great luxury of reviewing appeals in a very dispassionate manner. We are rarely confronted with the harsher realities of life that are experienced daily in juvenile courts throughout this district. We can, however, fully imagine the frustrations that arise in an urban juvenile court handling a crowded docket. In spite of these pressures — or perhaps because of them— the judges in those courts need to strive constantly to develop and hone the skills essential to maintain decorum and the unquestioned air of fairness.

While we do not reverse the orders on appeal in this case, we would encourage the trial judge to read and review the transcript in this case in the same dispassionate manner that an appellate court reads a transcript. Given the objectivity that comes with the passage of time, we believe that such a review might prove useful to a capable judge striving to develop and hone these essential courtroom skills.

Affirmed.

SALCINES and KELLY, JJ., Concur.


text:
    J.H.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-74.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

J.H.M. appeals an order adjudicating her delinquent for battery on a law enforcement officer in violation of section 784.07, Florida Statutes (2004). We reverse the adjudication and the resulting disposition.

Three Hillsborough County deputies were looking for an adult male suspect. The nature of this investigation is not well developed in our record. The deputies claim that they were investigating a “battery.” One of them had apparently seen this suspect at a specific apartment in Tampa, Florida, about a week earlier. In hopes the suspect might still be at the apartment, on October 27, 2004, the deputies went to the apartment, apparently to arrest him.

It is unclear why these deputies thought they could arrest the suspect. They did not have a warrant for his arrest, nor did they witness the offense, which seems to have been a misdemeanor. See § 901.15, Fla. Stat. (2004) (providing that a misdemeanor generally must occur in the presence of an officer to give the officer authority to perform an arrest without a warrant). They also did not have a search warrant for the apartment.

At approximately 8 p.m., the deputies knocked on the door of the apartment. They were armed and in uniform but did not have their weapons displayed. J.H.M., a fourteen-year-old girl who is the cousin of the apartment’s tenant, answered the door. She was babysitting smaller children at the apartment but was otherwise alone. The deputies informed her they were conducting an investigation. J.H.M. refused to identify herself when the deputies asked for her name. As J.H.M. continued to refuse to answer the deputies’ questions, one of them raised his voice. J.H.M. told them the only people inside were herself and the children she was babysitting. The deputies did not see an adult male inside the apartment. They also knew that neither the children nor J.H.M. were the suspect. The commotion arising from J.H.M. and the deputies’ confrontation was beginning to draw a crowd of people from the apartment complex.

J.H.M. asked the deputies if they had a warrant. Because they did not have a warrant, she told them that she did not want them to come into the apartment. She attempted to shut the door. From the evidence in the record, at that point the deputies had no legal right to further pursue the interview and were required to permit J.H.M. to close the door.

Instead of ending the investigation, the deputies ordered J.H.M. to come out of the apartment. Even though she was not suspected of any offense, the deputies believed that they were still conducting a criminal investigation and that she was not free to shut the door. J.H.M., who apparently was barefoot, attempted to shut the door and to go inside the apartment to find her shoes. One of the deputies put his foot in the door to block J.H.M. from shutting it completely. The deputy stepped in and looked around the door, entering the apartment at least to the extent required to determine that there were no weapons behind the door.

At approximately this point, J.H.M.’s mother arrived. She told her daughter not to comply with the deputies or tell them anything. One of the deputies took the mother aside while the deputy at the doorway was trying to get J.H.M. to step outside. J.H.M. retrieved her shoes. As she was leaving the apartment, J.H.M. pushed the deputy at the door in the chest with two hands and said, “Don’t touch my momma and you’ll see what happens.” When J.H.M. pushed him, the deputy placed her against the wall and attempted to take her into custody. J.H.M. struggled while he was trying to handcuff her. During the incident, the deputy hurt his thumb. For these events, J.H.M. was arrested and charged as a juvenile for battery on a law enforcement officer and obstructing or opposing an officer with violence.

At the conclusion of the evidence, the trial judge expressed his concern that the officers had no warrant or other basis to arrest the man under investigation. The trial judge concluded that it would have been unlawful for the officers to arrest the man if he had been present. Although he concluded that the deputies had no basis to arrest or detain J.H.M., he doubted that she had a right to physically protest these events. His doubts were supported by the case law from this court. See State v. Freeney, 613 So.2d 523 (Fla. 2d DCA 1993). The trial court ultimately found that the State had failed to prove the offense of opposing an officer with violence but that it had proven the offense of battery on a law enforcement officer.

In Tillman v. State, 934 So.2d 1263 (Fla.2006), which had not been decided when the trial court made its ruling in this case, the supreme court resolved a conflict between the districts regarding whether the prohibition against the use of force to resist an illegal arrest extended to other police-citizen encounters that resulted in charges of battery on a law enforcement officer against the protesting citizens. Tillman held the prohibition against a use of force applied only to arrest situations.

In non-arrest cases, in order to convict a defendant under sections 784.07 and 843.01, Florida Statutes (2005), which define the crimes of battery on a law enforcement officer and resisting an officer with violence, the State must prove that the officer was “engaged in the lawful performance of his or her duties” or “in the lawful execution of any legal duty.”

Id. at 1266 (footnote omitted). The supreme court approved the First District’s holding in Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999).

In both Tillman and Taylor, the officers were improperly inside a home. In this case, the deputies were not inside the apartment at the time of the incident and had made, at most, a brief intrusion into the apartment a short while earlier. We cannot conclude, however, that the fact these events occurred at or immediately outside the threshold of the apartment placed the deputies in a position of acting in the lawful execution of a legal duty at the time J.H.M. pushed the deputy. The trial court correctly determined that the officers had no lawful basis to detain J.H.M. when they ordered her out of the apartment. Once the officers refused to allow her to close the door, they were no longer in the lawful execution of a legal duty for purposes of the holding in Tillman. Thus, we reverse the adjudication and disposition in this case and remand for further proceedings.

The proceedings on remand would appear to present a very difficult legal issue. Although the conduct of the deputies in this ease may explain, if not legally justify, J.H.M.’s decision to shove the deputy at the door, the facts of this case demonstrate a potential difficulty in applying the holding in Tillman. The difficulty arises because the distinction in Tillman between arrest and non-arrest cases may not be easily drawn in many common, real world situations.

In this case, it is clear that J.H.M. was involved in a “non-arrest case” until she pushed the deputy. That push, however, arguably gave the deputies the authority to arrest her for committing a simple battery in their presence. If the push transformed this case into an “arrest case,” then J.H.M. may have committed battery on a law enforcement officer after that point when she struggled with the deputy and hurt his thumb. See State v. Roy, 944 So.2d 403, 406-07 (Fla. 3d DCA 2006) (reversing an order dismissing an information that included one count of battery on a law enforcement officer and finding that under the Tillman test, once an officer effectuates an actual arrest, use of force is still prohibited to resist it, even if the arrest is illegal). Because very few people immediately cease resistance when an officer attempts such an arrest, this analysis would give very limited application to Tillman. It would also allow a police officer to transform an unlawful detainment into a legal arrest by his or her own confrontational behavior.

We are inclined to believe that the supreme court in Tillman may have intended to use the more formal and technical definition of “arrest” that is used for purposes such as speedy trial. As Justice Bell explained in his concurring opinion in Bulgin v. State, 912 So.2d 307 (Fla.2005):

It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is “the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime.” Cornelius, Search and Seizures, 2nd ed., Sec. 47. When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Id. at 313-14 (Bell, J., concurring); see also Melton v. State, 75 So.2d 291, 294 (Fla.1954).

If such an “arrest” is necessary to transform a “non-arrest ease” into an “arrest case” under the holding in Tillman, then it is unlikely that J.H.M.’s case ever became an “arrest case” because there is no evidence in the current record that any officer ever communicated “an intention or purpose then and there to effect an arrest.”

The analysis in this case is made even more complicated by the fact that the trial court has already found J.H.M. not guilty of opposing an officer with violence, which would seem to relate to the conduct that occurred after J.H.M. shoved the deputy. Accordingly, we reverse the order of adjudication and the resulting disposition in this case. On remand, the trial court cannot retry the charge of opposing an officer with violence.

Reversed and remanded.

SALCINES and CANADY, JJ., Concur.

      . One deputy suggested that it might have been an aggravated battery, but he was not sure.

      . The facts are described in the light most favorable to the State. J.H.M. denied that she pushed the deputy or struggled. Other witnesses at the scene supported her story. The deputy who took the mother aside did not see J.H.M. push the other deputy and did not testify about any struggle thereafter.


author: VILLANTI, Judge.

text:
    Robert V. THIBAULT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6202.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.
    James Marion Moorman, Public Defender, and Bruno F. DeZayas, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Robert V. Thibault appeals his convictions and sentences for burglary and grand theft. Thibault contends that the trial court erred: (1) in denying his motion to suppress an in-court identification, (2) in imposing investigative costs without considering Thibault’s ability to pay, and (3) in imposing attorney’s fees without informing Thibault of his right to contest the amount. We affirm, without comment, on the first ground. However, we reverse and remand Thibault’s sentences with instructions to strike the $232 in investigatory costs and consider Thibault’s financial resources before reimposing them and to strike the $800 in attorney’s fees, as the trial court previously ordered.

Thibault properly filed a motion to correct sentencing error, asserting that the trial court improperly imposed $232 in investigative costs when it failed to consider Thibault’s financial resources. In denying Thibault’s motion, the trial court erroneously relied on Cook v. State, 896 So.2d 870 (Fla. 2d DCA 2005), and concluded that an inquiry into a defendant’s financial resources is discretionary with the court. In Cook, this court held that imposing a public defender fee without considering the defendant’s financial resources is proper because section 938.29, Florida Statutes (2003), does not require consideration of a defendant’s ability to pay. In contrast, section 938.27(5), Florida Statutes (2002) (the version in effect on March 30, 2003, the date of Thibault’s offenses), expressly requires the court to consider “the financial resources of the defendant” in imposing investigative costs. Because the trial court did not inquire into Thibault’s financial resources, it erred in imposing the investigative costs. Notably, the State rightfully concedes the error. On remand, the trial court may reimpose the investigatory costs after it considers Thibault’s financial resources. See Smith v. State, 714 So.2d 1152,1153 (Fla. 2d DCA 1998).

In Thibault’s motion to correct sentencing error, he also asserted that the trial court improperly imposed $800 in attorney’s fees when it failed to inform Thibault of his right to contest the amount. The trial court granted this portion of Thi-bault’s motion, which the State did not appeal. However, Thibault notes, and the State concedes, that the judgment and sentence was never corrected to strike the $800 in attorney’s fees.

Affirmed in part; reversed and remanded with instructions to: (1) strike the $232 in investigative costs and consider Thi-bault’s financial resources before reimposing these costs and (2) strike the $800 in attorney’s fees, in fulfillment of the trial court’s previous order.

SALCINES and STRINGER, JJ., Concur.


author: STONE, J.

text:
    STATE of Florida, Appellant, v. Christopher LAMM, Appellee.
    No. 4D06-1201.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   STONE, J.

We reverse an order dismissing the information charging Lamm with battery on a law enforcement officer.

Lamm filed a motion to dismiss, claiming the state had intentionally destroyed an exculpatory videotape and asserting that the videotape was missing seconds showing Lamm never touched the officer. The record of the hearing on the motion reflects that the charged incident occurred in a parking garage and was captured by the garage video cameras. The assistant state attorney argued that gaps in the tape resulted from the fact that multiple cameras were involved, and the tape had to be slowed down to get the recordings into a usable format. The trial court, however, noted that the gaps were not at regular intervals or length.

The assistant state attorney offered to have the Broward sheriffs office technician, who had made the tape, brought in to testify and told the court the original videotape was still in existence.

The court, in dismissing the information, noted that the state had almost two months notice of the motion to dismiss hearing and that the assistant state attorney could not personally testify as to whether the copy of the videotape was a true and accurate copy of the tape. The court also found that the missing seconds on the tape would be material to Lamm’s defense.

There is no indication in the record that the court deemed counsel’s conduct to be willful. There is also no reason to question the state’s assertion that the original videotape is still available in full, albeit not in usable format, without conversion.

We have recognized that dismissal of an information should be used only with the “greatest caution and deliberation.” Felder v. State, 873 So.2d 1282, 1283 (Fla. 4th DCA 2004) (citation omitted). The dismissal of an information is an extreme sanction and, therefore, “should be used with caution, and only when a lesser sanction would not achieve the desired result.” State v. Carpenter, 899 So.2d 1176, 1182 (Fla. 3d DCA 2005) (citations omitted) (emphasis in original).

In Carpenter, the trial court dismissed the information after the state would not revise its statement of particulars. There, the court recognized that,

Before a court can dismiss an information for a prosecutor’s violation of a discovery rule or order, the trial court must find that the prosecutor’s violation resulted in prejudice to the defendant.
The obvious rationale for limiting the sanction of dismissal of criminal charges to only those cases where no other sanction can remedy the prejudice to the defendant is to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct. And, of course, where the prosecutor’s failure to make discovery has not irreparably prejudiced the defendant, the sanction of dismissal punishes the public, not the prosecutor, and results in a windfall to the defendant. ... [T]he rule authorizing the imposition of sanctions for discovery violation was “never intended to furnish a defendant with a procedural device to escape justice[.]”

899 So.2d at 1182-83 (citations omitted) (footnote omitted) (emphasis in original).

Here, the court was responding to the failure of the state to anticipate the need to produce the technician/witness at the hearing. However, there is no indication in the record that counsel was aware that this was an evidentiary hearing and that leave would not be granted for time to support the state’s representations, if contested. Indeed, there is nothing in the record to refute counsel’s representations as to what had occurred.

In any case, dismissing the information because of the state’s failure to call a pre-trial witness when the state had no indication a witness would be required, absent willful misconduct, is an inappropriate sanction. See generally State v. Saldarriaga, 486 So.2d 683 (Fla. 3d DCA 1986) (citations omitted) (“Where the failure of the State to produce a witness or evidence in compliance with an order of the court is based on negligence rather than willful noncompliance, and where the facts do not even in the slightest support a conclusion that the defendant’s constitutional rights have been violated, dismissal of the charges and discharge of the defendant is not an appropriate sanction.”).

Further, although we are mindful that unsworn representations of counsel are not evidence, here, while not being able to testify as to what process of conversion was done to the tape at issue, the assistant state attorney could certainly inform the court that the original tape still existed. There was no showing that Lamm would be unable to obtain the original complete videotape.

Additionally, the trial court did not consider any lesser sanctions before granting the dismissal. By dismissing the information, the trial court prevented the state from any possibility of meeting its burden in showing that there was no prejudice to Lamm; further inquiry as to the inability of the videotape to be presented in a format without skipping may well have shown the tape to be valueless, thus negating any prejudice. See State v. Sobel, 363 So.2d 324 (Fla.1978) (involving defendant’s contention that a destroyed tape recording, which police said was inaudible, was exculpatory, and holding a defendant is not denied due process with regard to a destroyed or lost tape recording absent a showing of prejudice).

Therefore, we reverse and remand for an evidentiary hearing as to the existence of the original tape, and as to the exculpatory value of further conversions of the tape.

SHAHOOD and HAZOURI, JJ., concur.

      . See, e.g., Neal v. State, 697 So.2d 903 (Fla. 2d DCA 1997).


text:
    Travis EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3059.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Travis Evans, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals the denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In the trial court, the appellant’s motion noted that the Department of Corrections recorded that appellant was serving an eight-year sentence when a five-year sentence was imposed. The trial court summarily denied the motion, attaching an amended written sentence which showed an eight-year sentence, entered nunc pro tunc to the date of the five-year sentence. We affirm that order. Although he raises questions of the illegality of the increase in the sentence on appeal, these issues must first be presented to the trial court. Our affirmance is without prejudice to raising those issues by proper motion to the trial court.

WARNER, FARMER and TAYLOR, JJ., concur.


text:
    Q.K., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4856.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Q.K. pleaded no contest to disruption of an educational facility in violation of section 877.13, Florida Statutes (2003), a second degree misdemeanor that, if committed by an adult, is punishable by up to sixty days in jail. The Amended Disposition Order on appeal stated in pertinent part:

/ Committed to a licensed child-caring agency/the Department of Juvenile Justice for placement in a Moderate risk residential program, for an indeterminate period, but no longer than the child’s see below birthday or the maximum term of imprisonment which is _, the same time an adult may serve for each count listed above, whichever comes first....

(Italicized language handwritten by court.)

Q.K. argues on appeal that the trial court erred by failing to specify in the order that its jurisdiction over Q.K. would terminate in sixty days. We agree.

A juvenile’s commitment to a residential program, including a term of probation that follows, may not run longer than the statutory maximum allowed by law. I.B. v. State, 816 So.2d 230, 232 (Fla. 5th DCA 2002). “A disposition order must specify the period of commitment imposed by the court.” S.B. v. State, 834 So.2d 964 (Fla. 2d DCA 2003) (citing M.N. v. State, 798 So.2d 889 (Fla. 4th DCA 2001) (remanding “with instructions to specify the period of commitment, not to exceed the maximum adult sentence for the charge”)). “[LJanguage committing a juvenile for an indeterminate period of time no longer than a specific birthday or the maximum term of imprisonment is error because such language could allow the sentence to be construed as running longer than the statutory maximum provided for the particular offense.” L.W.G. v. State, 785 So.2d 696 (Fla. 4th DCA 2001).

Because the order in this case does not explicitly state that the sentence may run no longer than sixty days, the disposition order must be corrected. We remand for correction of the Amended Disposition Order.

Remanded With Directions.

GROSS, HAZOURI, JJ., and MAASS, ELIZABETH T., Associate Judge, concur.

        Jurisdiction not to exceed the statutory maximum.


text:
    Darrell SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4713.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.
    Nancy A. Daniels, Public Defender, and Joel D. Arnold, Assistant Public Defender; Darrell Smith, pro se, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation. However, we remand to the trial court for entry of a corrected order of revocation to reflect appellant’s proper jail credit. The failure of the trial court to enter a corrected revocation order following the granting of appellant’s motion to correct illegal sentence appears to merely be a ministerial error.

AFFIRMED; REMANDED WITH DIRECTIONS.

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


text:
    Kevin J. MARQUEZ, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2239.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.
    Kevin J. Marquez, pro se, Petitioner.
    Rosa Carson, General Counsel of the Florida Department of Corrections, Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Kevin J. Marquez seeks review of the circuit court’s order denying his petition for a writ of mandamus, and refusing to remove a lien on his inmate trust account imposed to recover circuit court costs and fees. The mandamus petition challenged the gain-time forfeiture in a prison disciplinary proceeding. We deny his petition for writ of certiorari, insofar as it challenges denial of the petition for writ of mandamus filed in circuit court.

As the State concedes, however, the action in the trial court was a collateral criminal action within the meaning of Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003). Accordingly, we vacate the order placing a hen on Mr. Marquez’s inmate trust account, see Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005), and remand for entry of an order directing the reimbursement of those funds withdrawn from his account pursuant to the lien. See Jackson v. McDonough, 31 Fla. L. Weekly D2299, D2300, 2006 WL 2527244 (Fla. 1st DCA Sept.5, 2006).

The petition is denied insofar as it seeks relief from the order denying the petition for writ of mandamus, but is granted insofar as it seeks relief from the unauthorized hen, and the case is remanded for entry of an order removing the hen and requiring reimbursement.

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


text:
    R.S., the natural father of C.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D06-2430.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.
    Randall Werre of Randall A. Werre, P.A., Milton, for Appellant/Father.
    Katie George and Richard D. Cserep of Department of Children & Families, Pensacola, for Appellee Department of Children & Families; James R. Goff of NW Florida Legal Services, Inc., Pensacola, for AppellanVMother; and James Kline, Guardian Ad Litem Program Attorney, Milton.
   PER CURIAM.

Given this court’s disposition of the mother’s appeal of the order terminating her parental rights, see P.S. v. Fla. Dep’t of Children & Families, 944 So.2d 1187 (Fla. 1st DCA 2006), we likewise reverse and remand for further proceedings this appeal by the father of that same order, which also terminated his parental rights.

REVERSED and REMANDED.

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


text:
    Marvin DOUZE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3347.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.

      Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Through counsel appellant filed a motion to vacate his plea pursuant to Florida Rule of Criminal Procedure 3.170(7), but the motion was clearly untimely. The trial court denied the motion. We affirm, but our affirmance is without prejudice to appellant filing a sworn motion for postcon-viction relief in conformance with the requirements of Florida Rule of Criminal Procedure 3.850, raising the involuntariness issue counsel raised in the motion to vacate. Appellant shall have thirty days from the rendition of this opinion, or shall have the time remaining under Rule 3.850, to file a proper, sworn motion for postcon-viction relief.

STONE, WARNER and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Steven CICILIAN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-3670.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Carey Haughwout, Public Defender, and Daniel Cohen and Daniel Marshall, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Petitioner was arrested and charged with misdemeanor DUI in February, 1999, but failed to appear in court, and a capias was issued for his arrest. The capias was not served on him, however, until April, 2006. The state then charged petitioner with felony DUI, based on the February, 1999 incident and three prior DUI’s. Petitioner moved to dismiss the felony DUI charge on the ground that the statute of limitations had run, but the court denied the motion. We grant his petition for writ of prohibition.

The period of limitations for prosecution of felony DUI, a third degree felony, is three years from the date of the offense. §§ 775.15(2)(b), (4)(a), Fla. Stat. (1999). The trial court determined that the information charging petitioner with a felony, filed in May 2006, charged the same crime as the 1999 misdemeanor. The court reasoned, incorrectly, that the felony charge was not a different crime, but merely an enhancement for purposes of sentencing.

In State v. Woodruff, 676 So.2d 975, 977 (Fla.1996), our supreme court held:

We reject the district court of appeal’s determination that the only difference between the two offenses is the severity of punishment. Felony DUI requires proof of an additional element that misdemeanor DUI does not: the existence of three or more prior misdemeanor DUI convictions.... Felony DUI is therefore a completely separate offense from misdemeanor DUI, not simply a penalty enhancement.

Petitioner’s motion to dismiss should have been granted because the statute of limitations had run on the felony DUI. We accordingly grant the petition.

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


text:
    George H. SMITH, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 4D06-3281.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, for petitioner.
    No response for respondent.
   PER CURIAM.

The petition for writ of certiorari is hereby denied. See Lescher v. Dep’t of Highway Safety & Motor Vehicles, 946 So.2d 1140, 2006 WL 3733197 (Fla. 4th DCA Dec. 20, 2006). We certify the same question as certified in Lescher.

WARNER, FARMER and KLEIN, JJ., concur.


text:
    Terry GLISPY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-1162, 4D06-1707.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Carey Haughwout, Public Defender, and Ellen A. Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Woodly v. State, 937 So.2d 193 (Fla. 4th DCA 2006).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Pete AMADOR and Daisy Amador, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D06-1151.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Roderick McGee of Roderick McGee, P.A., Pompano Beach, for appellants.
    Elizabeth K. Russo and Jonathan L. Gaines of Russo Appellate Firm, P.A., Miami, Berk, Merchant & Sims, PLC, Coral Gables, and Wood Bronstein, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Federated Nat’l Ins. Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006).

WARNER, GROSS and TAYLOR, JJ., concur.


author: SAWAYA, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. C.G. and J.A., Parents of E.A., A Child, Appellees.
    No. 5D06-835.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2007.

      Charles D. Peters, Orlando, for Appellant.
    Gary Siegel, Fern Park, for Appellee C.G.
    Helen N. Silva, Sanford, for Appellee J.A.
   SAWAYA, J.

The Department of Children and Families argues, and Appellees, the parents, agree, that the trial court erred in dismissing the Department’s dependency petition with prejudice without first giving the Department the opportunity to amend its petition. Fla. R. Juv. P. 8.310; Dep’t of Health & Rehabilitative Servs. v. S.H., 666 So.2d 1039, 1040 (Fla. 1st DCA 1996); In Interest of A.S., 586 So.2d 1072 (Fla. 1st DCA 1991). Therefore, we reverse the order of dismissal and remand this case to the trial court for further proceedings.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.


text:
    Michael J. MICHAELS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3894.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2007.
    Michael J. Michaels, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgment and sentence in Case Nos. 2005-CF-127, 2005-CF-128, and 2005-CF-261 in the Circuit Court in and for Flagler County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, MONACO and EVANDER, JJ., concur.


author: WHATLEY, Judge.

text:
    Leon KERNEY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-3278.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2007.

      Leon Kerney, Jr., pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Respondent.
   WHATLEY, Judge.

Leon Kerney, Jr., in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises a single ground alleging ineffective assistance of appellate counsel. Kerney pleaded no contest to one count of sexual activity constituting sexual battery with a person older than twelve years of age but less than eighteen years of age by a person in familial or custodial authority. After sentencing, Kerney filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(i), which motion was denied by order of the trial court. Appellate counsel, in the appeal from the judgment and sentence, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the petition, Kerney alleged that appellate counsel was ineffective in failing to argue that the trial court erred in denying the motion to withdraw the plea that was filed postsentene-ing pursuant to Florida Rule of Criminal Procedure 3.170(i ).

We deny the petition for two reasons. First, Kerney has neither alleged nor established that he was not represented by trial counsel at the time he moved to withdraw his plea. Where a defendant is represented by counsel, a motion to withdraw a plea is a nullity and should be stricken unless the motion includes an unequivocal request to discharge counsel. See Johnson v. State, 932 So.2d 1169, 1170 (Fla. 2d DCA 2006). Kerney’s pro se motion did not include an unequivocal request to discharge trial counsel. Kerney has not established prejudice because he has not shown that the motion was not a nullity. Second, Kerney’s motion to withdraw contained only conclusory statements and did not present any facially sufficient ground for relief. Where a defendant files a facially insufficient rule 3.170(Z) motion, he is not entitled to an evidentiary hearing and the trial court may summarily deny the motion. See Harris v. State, 818 So.2d 567, 568 (Fla. 2d DCA 2002).

The petition is denied. Our ruling in this case is without prejudice to any ability Kerney may have to file a timely, facially sufficient motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850.

CASANUEVA and DAVIS, JJ., Concur.

      . In the initial Anders brief, appellate counsel stated that Kerney’s motion to withdraw was untimely filed. However, the motion was timely filed pursuant to the mailbox rule.

      . Kerney’s motion to withdraw the plea contained no facts in support of the claims raised therein. See Bogan v. State, 832 So.2d 206 (Fla. 2d DCA 2002) (holding that a rule 3.170(0 motion was properly summarily denied where the movant claimed that the plea was involuntarily entered because he was coerced by trial counsel but provided no facts in support of this claim). Furthermore, the motion contained no allegation that the plea was involuntarily entered. Kerney alleged only that he "did not understand his plea and was pressure [sic] by his attorney to except [sic] this plea.” Although a trial attorney may not coerce a client into pleading, it is not inappropriate for counsel to "pressure” a client to accept a plea offer that the attorney deems to be in the client’s best interests. In the other claim in the motion, Kerney alleged that trial counsel failed to object to a sentence that was "outside" of the sentencing guidelines range. Kerney was convicted of a first-degree felony and was sentenced to twenty years in prison under the Criminal Punishment Code. His sentence was not outside the guidelines, nor was it an illegal sentence. See § 794.01 l(8)(b), Fla. Stat. (2003); Fla. R.Crim. P. 3.992.


text:
    Cheryl WHITE, as parent and natural guardian on behalf of Isaiah White, a minor, Appellant, v. TEQUESTA HMA, INC., d/b/a Sandy Pines, a Florida corporation, Appellee.
    No. 4D06-1768.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Arthur Schofield of Arthur Schofield, P.A., West Palm Beach, for appellant.
    Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order dismissing the complaint and remand to the circuit court for appellant to have a chance to amend her complaint, so that she has an opportunity to demonstrate that the causes of action alleged fall outside of the presuit screening requirements of section 766.106, Florida Statutes (2005).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Gerald BLOCK, Appellant, v. Maria BLOCK-McKENZIE f/k/a Maria T. Block, Appellee.
    No. 4D06-1215.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Shelly J. Stirrat of Fox, Wackeen, Dun-gey, Beard, Sobel, Bush & McCluskey, L.L.P., Stuart, for appellant.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Hinton v. Smith, 725 So.2d 1154 (Fla. 2d DCA 1998).

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


author: STEVENSON, C.J.

text:
    PASSPORT LEASING CORPORATION, a Florida Corporation, and Michael Ray Gaddis, Appellants, v. Bernard ZIMMERMAN and Victoria Zimmerman, his wife, Appellees.
    No. 4D05-1365.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.

      Carlos De Zayas, Alan S. Feldman and Richard Lydecker of Lydecker, Lee, Be-har, Berga & De Zayas L.L.C., Miami, for appellants.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, James W. Knight, Jr., of James W. Knight, Jr., P.A., and Charles H. Rubenstein, P.A., Fort Lauder-dale, for appellees.
   STEVENSON, C.J.

Appellants, Passport Leasing Corporation and its employee, Michael Gaddis, (collectively referred to as “Passport Leasing”), appeal a final order granting a motion to compel a settlement agreement. We affirm the order appealed, but write to address Passport Leasing’s argument that the failure to include the name of one of the appellees on the settlement proposal constituted excusable neglect.

Appellees, Bernard and Victoria Zimmerman, sued the appellants for damages arising out of an automobile accident between Bernard Zimmerman and Michael Gaddis, who was driving a car owned by Passport Leasing. The first count of the two-count complaint sought damages for Mr. Zimmerman’s pain and suffering. Count two, a derivative claim, was brought by Victoria Zimmerman and sought damages for the loss of her husband’s companionship and services.

On May 12, 2004, and again on September 1, 2004, Passport Leasing filed notices of serving Mr. Zimmerman with a proposal for settlement. These pleadings do not mention Mrs. Zimmerman. The latter proposal offered Mr. Zimmerman $25,000 “to resolve all of the claims for the affirmative relief made by the Plaintiff, Bernard Zimmerman.” But, as a condition of settling, Passport Leasing required Mr. Zimmerman to dismiss with prejudice his action against Passport Leasing and to execute a general release. A month after accepting the offer, Zimmerman moved to enforce the settlement agreement and for the trial court to enter a judgment in his favor. Shortly thereafter, Passport Leasing served Mr. and Mrs. Zimmerman with a settlement proposal and Mr. Zimmerman again moved to enforce the previously-accepted settlement.

At the pretrial conference, counsel for Passport Leasing asserted that she informed Mr. Zimmerman, before he accepted the proposal, that the proposal was also intended to settle his wife’s claims. Counsel also contended that the settlement proposal was unenforceable because the non-monetary terms lacked specificity and the proposal was not attached to either the general release or the stipulation of dismissal. When granting Mr. Zimmerman’s motion, the trial court determined that although the proposal’s use of the term “general release” was “ill-advised,” the settlement agreement was nevertheless enforceable because “the parties understood the language used.”

Passport Leasing asserts that the settlement agreement should be rescinded because it is the result of a unilateral mistake. Relief can be granted for a “unilateral” mistake if “(1) the mistake did not result from an inexcusable lack of due care, and (2) defendant’s position did not so change in reliance that it would be unconscionable to set aside the agreement.” Stamato v. Stamato, 818 So.2d 662, 664 (Fla. 4th DCA 2002) (referencing Maryland Cas. Co. v. Krasnek, 174 So.2d 541 (Fla.1965)). This court has previously found that inexcusable neglect occurred when a party omits a material term from an offer of judgment. See BMW of N. Am., Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985) (holding car dealer’s failure to include, in offer of judgment, condition that buyers return car to dealer was unilateral mistake resulting from an “inexcusable lack of due care”); see also Stamato, 818 So.2d at 665 (holding party’s failure to check the court’s docket before entering into a settlement constituted inexcusable neglect).

Relying on U.S. Alliance Corp. v. Tobon, 715 So.2d 1122 (Fla. 3d DCA 1998), Passport Leasing urges us to find that the omission of Mrs. Zimmerman’s name was not inexcusable. We find Passport Leasing’s claim distinguishable from Tobon. There, the parties appeared before the trial judge and negotiated a settlement agreement that would resolve all issues in the case. See id. at 1123. Shortly after the written offer of judgment was accepted following the hearing, the appellant discovered that a part/s name was inadvertently omitted from the written offer. Id. The Third District held that the clerical error was not the result of inexcusable neglect, stating “it was ‘inconceivable’ that counsel ... intended to settle only [one party’s claims] for the same amount.” Id. at 1124. Since the error was inadvertent and known by the appellees’ counsel when the offer was received, the Third District permitted the appellant to have the offer of judgment set aside. Id.

In an apparent attempt to analogize Tobon to the facts before this court, Passport Leasing’s counsel argued during oral argument that all of the prior offers were to settle both claims. That argument is not supported by the record on appeal. Moreover, since unsworn allegations of counsel are not evidence, the record does not support the assertion of Passport Leasing’s trial counsel that she explained the error before Mr. Zimmerman accepted the offer. See Faircloth v. Bliss, 917 So.2d 1005, 1006-07 (Fla. 4th DCA 2006) (“Unsworn statements by attorneys are usually not considered as evidence by trial courts unless stipulated to by both parties.”). Based on the evidence presented, this case is analogous to BMW, where we stated that “the omission of what is now claimed to be an essential term, cannot be characterized as a minor, inadvertent error.” 471 So.2d at 588. Accordingly, we affirm the order appealed.

Affirmed.

WARNER and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    Timothy TYLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2560.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The issue in this case is whether the trial judge committed reversible error in failing to conduct inquiries pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Finding that the trial court successfully navigated between Nelson and Faretta, we affirm Tyler’s convictions.

To say Tyler was caught red-handed is an understatement. In broad daylight, in front of many witnesses, Tyler stole the victim’s purse and fled in his nearby vehicle. Next, Tyler led police on a high-speed chase which ended when he crashed into a fence. After arresting Tyler, police found the victim’s wallet and identification in his car.

Our review of the record demonstrates not a genuine exercise of rights under Nelson and Faretta, but rather an attempt to game the system. Nine months after his arrest, Tyler moved to discharge his public defender; and the motion was denied. On the eve of trial, Tyler renewed the motion to discharge before another judge, who granted the motion. With new counsel, and before the judge who originally denied the motion to discharge, trial commenced. After the start of voir dire, Tyler moved to discharge his recently appointed counsel for ineffectiveness.

After conducting a Nelson inquiry, the court found that Tyler’s counsel was competent and refused to replace him. Although given the opportunity, Tyler did not make an unequivocal demand to represent himself. See Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988) (noting that “courts have long required that a request for self-representation be stated unequivocally”). On several occasions, the court asked Tyler if he wished to represent himself. Tyler responded, “I’m not a lawyer ... how can I represent myself ... I don’t know nothing about none of that there.” Even though the court informed Tyler that he did not need to be a lawyer to represent himself, Tyler maintained that he did not have the capacity for self-representation.

This and other appellate courts have made clear that they will not permit the right to counsel to be used “for the sake of arbitrary delay or to otherwise subvert judicial proceedings.” Foster v. State, 704 So.2d 169, 173 (Fla. 4th DCA 1997) (citing Holley v. State, 484 So.2d 634, 636 (Fla. 1st DCA 1986)). “Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.” Id. Here, the record supports the trial court’s determination that Tyler’s Nelson and Faretta maneuverings were an attempt to delay prosecution, rather than a genuine exercise of rights under those cases.

SHAHOOD and HAZOURI, JJ., concur.