author: SAWAYA, J.

text:
    Joe ALFORD, Appellant, v. COOL CARGO CARRIERS, INC., Ta Saphan, et al., Appellees.
    No. 5D05-1646.
    District Court of Appeal of Florida, Fifth District.
    June 30, 2006.
    Rehearing Denied Aug. 28, 2006.

      Beth M. Gordon, of Parrillo, Weiss & O’Halloran, Boca Raton, for Appellant.
    E.T. Fernandez, III and Tiffani C. Audi-lett, of Inman & Fernandez, P.A., Jacksonville, for Appellees.
   SAWAYA, J.

When two motor vehicles collide in Florida and one is struck in the rear, a presumption arises that the individual driving the rear vehicle was negligent. The question here is whether that presumption applies in instances where the lead vehicle— the one struck in the rear — crosses over into the lane of the other vehicle just before the collision occurs. Joe Alford, a passenger in the lead vehicle who was injured in the rear-end collision allegedly caused by the driver of the rear vehicle, Ta Saphan, contends that the presumption applies and that the summary judgment rendered in favor of Saphan and Cool Cargo Carriers, Inc. must be reversed. We disagree that the presumption applies under the particular facts of this case but, nevertheless, agree that the summary judgment should be reversed.

The events that led to the rear-end collision between the two vehicles — both semi-tractor trailers — began when the driver of the lead vehicle, Kevin Shadday, pulled over to the shoulder of southbound 1-75 just north of the left exit leading onto the Florida Turnpike. Shadday discussed with his passenger, Alford, whether it would be faster to take the Turnpike than to continue their journey on 1-75. When the decision was made to take the Turnpike, Shadday activated his left turn signal and re-entered 1-75, which is three lanes wide. Shadday proceeded across the right and middle lanes of 1-75 to reach the left lane. Saphan, who also intended to take the Turnpike exit, had been driving in the far right lane of southbound 1-75, but a mile or two from the actual Turnpike exit had moved his vehicle into the middle lane in anticipation of the left-hand exit for the Turnpike. Both the left lane and the middle lane of 1-75 are exit lanes for the Turnpike. Traffic was moderate; there was traffic ahead in all three lanes. Sa-phan allowed his vehicle to slow from the posted 70 mph speed limit down to 60-65 mph because he knew from his many prior trips along that route that he needed to go slower to negotiate the exit safely.

The first that Saphan saw Shadday was when Shadday’s vehicle was between the right lane and the middle lane. Saphan was in the middle lane. He steered to the left to avoid Shadday’s vehicle, explaining, “He came so fast and get in front of me I was trying to move away from him” and “he came in too fast in front of me and I get away — try to get away from him that why I end up in the far left lane.”

Saphan was successful in avoiding Shad-day in the middle lane, but unfortunately, as Saphan steered into the left lane to avoid Shadday’s vehicle, Shadday also continued moving to the left lane. Saphan struck Shadday in the rear. As a result, Alford was injured. Shadday has no memory of the accident other than leaving the shoulder of 1-75. In his deposition, Saphan was asked whether he had seen Shadday’s vehicle “at all before the two tractor trailers came together” and he responded, “No, I didn’t see it.” He had not noticed any vehicles on the right shoulder of the road in the two miles prior to impact either. When asked why he had not seen Shadday until Shadday suddenly came over in his lane, Saphan replied:

I was in the lane I need to get on the Florida Turnpike. My concern was to go with the speed which is safe for me to get on the curve to the Florida Turnpike. That’s why I cannot tell — that’s why I cannot tell you that I was — saw him earlier or anything like that.

According to Saphan, the two vehicles were in the far left lane when the right front grill of Saphan’s vehicle hit the bottom left portion of Shadday’s trailer. According to Alford, however, the impact occurred in the middle lane. Saphan was traveling less than 60 mph at the moment of impact, as he had slammed on his brakes to avoid a collision. Shadday was traveling only 35 mph at impact. Shadday was aware that his vehicle was about to be hit, as he yelled out a warning to Alford.

Alford filed suit against Saphan and Cool Cargo, alleging that Saphan’s negligent operation of his vehicle had caused the collision and the resulting damages to Alford. Saphan and Cool Cargo filed a motion for summary judgment, alleging that Shadday’s lane change and low speed were the sole and proximate cause of the accident. Alford responded that his vehicle was struck in the rear and, therefore, a presumption of negligence on the part of Saphan prevented summary judgment in Saphan’s favor. Alford also argued that the presumption could not be rebutted by Saphan and Cool Cargo because Saphan admitted that he had not seen Shadday’s vehicle until it started to enter the middle lane. Specifically, Alford argued:

The Defendant may have an explanation for why he rear-ended a tractor with a trailer attached on a clear night with unlimited view of the roadway and the surrounding areas. A jury could decide that the driver of the vehicle the Plaintiff was riding in bears some responsibility for the accident, but there is no way that this case is one that can be resolved by summary judgment.... Because of the nature of the accident, Defendant will have the burden of going forward with evidence to contradict or rebut the presumption of negligence that exists.

Unpersuaded by Alford’s argument, the trial court rendered summary final judgment in favor of Saphan and Cool Cargo, finding that the “evidence establishes the sole cause of the traffic crash was Shad-day’s improper lane change” and that the “evidence negates the application of the ‘rear-end collision rule’ ” as expressed in Florida’s caselaw. Alford appeals.

The rea-end collision rule was recognized by the Florida district courts quite some time ago, see McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958), and was adopted by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla.1959). See Gulle v. Boggs, 174 So.2d 26 (Fla.1965). The purpose of the rule is founded on the perceived need to somewhat lessen the burden borne by a plaintiff to prove two of the requisite elements of negligence — breach of the duty of care and causation — which are inherently difficult to establish in most rear-end collision cases because the driver of the lead vehicle, whose attention is usually focused on events in the front rather than the rear of the vehicle, generally knows that he or she was struck from behind but does not know why. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla.2001); Eppler v. Tarmac Am., Inc., 752 So.2d 592 (Fla.2000); Jefferies v. Amery Leasing, Inc., 698 So.2d 368 (Fla. 5th DCA 1997). Hence, the driver of the rear vehicle that collides with the back of the lead vehicle is presumed negligent unless the rear driver presents evidence that fairly and reasonably tends to show that the presumption is misplaced. Clampitt; Eppler; Guile; Wright v. Ring Power Corp., 834 So.2d 329 (Fla. 5th DCA), review denied, 846 So.2d 1148 (Fla.2003); Jefferies.

There are three general categories of affirmative explanations that may effectively rebut the presumption of negligence: 1) an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected change of lanes, see Clampitt; Eppler; Conda v. Plain, 222 So.2d 417 (Fla.1969); Wright; Antokal v. Llana, 763 So.2d 1067 (Fla. 4th DCA 1999), review denied, 767 So.2d 458 (Fla.2000); McCloud v. Swanson, 681 So.2d 898 (Fla. 4th DCA 1996); Liriano v. Gonzalez, 605 So.2d 575 (Fla. 3d DCA 1992); Tozier v. Jarvis, 469 So.2d 884 (Fla. 4th DCA 1985); 2) a mechanical failure, i.e., sudden brake failure, that causes the rear driver to collide with the lead driver, see Murray v. Schreiner, 825 So.2d 527 (Fla. 2d DCA 2002); Antokal; Liriano; Tozier; and 3) the lead vehicle is illegally and, therefore, unexpectedly stopped. Antokal; Liriano; Tozier. In these instances, the purpose for the presumption is not served because the driver of the lead vehicle was a contributing cause of the collision or the driver of the rear vehicle was rendered incapable due to mechanical failure to prevent the collision and, therefore, is not negligent.

If the rear driver presents sufficient evidence to rebut the presumption, the case is submitted to the jury, without the aid of the presumption, “to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence.” Gulle, 174 So.2d at 29; see also Clampitt, 786 So.2d at 573 (“ ‘When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, the impact of ‘the presumption is dissipated.’ WTiether the ultimate fact has been established must then be decided by the jury from all of the evidence before it without the aid of the presumption.’ ”) (emphasis omitted) (quoting Gulle, 174 So.2d at 29); Servello & Sons, Inc. v. Sims, 922 So.2d 234, 236 (Fla. 5th DCA 2005) (“Once the presumption is rebutted, the case goes to the jury as an ordinary negligence case.”) (citing Klipper v. Gov’t Employees Ins. Co., 622 So.2d 1141, 1143 (Fla. 2d DCA 1993)); Duhaime v. Boggs, 877 So.2d 860 (Fla. 5th DCA 2004); Jefferies, 698 So.2d at 371 (“If it is sufficiently demonstrated that the lead driver was negligent as well, the jury should pass upon the question of shared liability and apportionment of damages.”); Yellow Cab Co. of St. Petersburg, Inc. v. Betsey, 696 So.2d 769, 771 (Fla. 2d DCA 1996) (“If the defendant produces evidence that fairly and reasonably shows that he was not negligent, the effect of the presumption disappears and negligence then becomes a jury question.”) (citing Baughman v. Vann, 390 So.2d 750 (Fla. 5th DCA 1980)). Once the presumption is rebutted, the presumption is “reduced to the status of a permissible inference or deduction which the jury may or may not draw from the evidence before it.” Gulle, 174 So.2d at 29; see also Conda.

Here, sufficient record evidence fairly and reasonably tends to show a sudden and unexpected lane change on the part of Shadday. This evidence sufficiently rebuts the presumption of negligence on the part of Saphan and requires that the case be submitted to the jury to determine the issue of negligence. Even if there is conflicting evidence in the record whether the lane change was sudden and unexpected, summary judgment is improper and the case should be submitted to the jury. See Murray. Moreover, there is sufficient evidence indicating that both Saphan and Shadday may have been negligent. Shad-day may have improperly changed lanes, rendering him negligent. See § 316.089(1), Fla. Stat. (2001) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”). As for Sa-phan, the evidence reveals that he did not see the vehicle driven by Shadday as it attempted to change lanes, despite the fact that it had its turn signal activated and despite the large size of the vehicle and the lack of evidence that Saphan’s view of the vehicle was obstructed. See Clampitt, 786 So.2d at 575 (“Each driver is charged under the law with remaining alert and following the vehicle in front of him or her at a safe distance.”); Hernandez v. Feliciano, 890 So.2d 401, 403-04 (Fla. 5th DCA 2004) (“It is undisputed that the front right of Feliciano’s car impacted with the rear left bumper of Hernandez’s car and that Hernandez’s car was pushed all the way into the driveway by the impact. This evidence could have indicated to the jury that Feliciano could have avoided the accident had she been paying proper attention.”) (footnote omitted); see also Hunter v. Ward, 812 So.2d 601, 604 (Fla. 1st DCA 2002) (quoting Clampitt). Apportionment of the negligence of each party is a matter for the jury, which makes summary judgment inappropriate.

We conclude that the presumption of negligence has been rebutted and the case should be submitted to the jury without the presumption to determine whether one or both parties were negligent and, if so, to what extent. We also conclude that there are genuine issues of material fact and that taking the evidence in the light most favorable to Alford — the nonmoving party — much more than a slight doubt exists that summary judgment is inappropriate. See Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502 (Fla. 5th DCA 2005).

Accordingly, we reverse the summary judgment rendered in favor of Saphan and Cool Cargo and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record is unclear as to the exact legal relationship between Saphan and Cool Cargo. The amended complaint alleged that Saphan "was driving a motor vehicle that was owned by him for the use and benefit of ... Cool Cargo Carriers, Inc.” Saphan and Cool Cargo admitted this allegation.

      . According to Alford's brief, suit was also filed against Shadday and the owner of the vehicle he was driving, United Van Lines, but summary judgment in their favor was entered by the trial court based on worker's compensation immunity.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose M. ARCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3947.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Jose M. Arce, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jose M. Arce appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with respect to one of his three claims.

Arce alleged that one of the predicate offenses used to qualify him for habitual offender sentencing was not his conviction. Arce’s claim is cognizable in a rule 3.800(a) motion if the error can be determined from the record. See Bover v. State, 797 So.2d 1246 (Fla.2001). Our record does not contain documents to refute this legally sufficient claim. Sheffield v. State, 903 So.2d 1009 (Fla. 4th DCA 2005). Accordingly, we reverse and remand for further review of this point.

FARMER, TAYLOR and HAZOURI, JJ., concur.


text:
    A.M. HOCHSTADT, Appellant, v. SANCTUARY HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D05-2315.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Sept. 12, 2006.
    John G. Crabtree of John G. Crabtree, P.A., Key Biseayne, for appellant.
    Michael W. Simon of Simon Sigalos & Spyredes, P.A., Boca Raton, for appellee.
   PER CURIAM.

In Hochstadt v. Sanctuary Homeowner’s Ass’n, 695 So.2d 1324 (Fla. 4th DCA 1997), this court reversed a summary judgment, concluding that a prior foreclosure judgment did not extinguish Appellant’s claim for waste for which there were issues of fact. This holding became the law of the case. After further litigation and appeals on other issues, the trial court failed to recognize this law of the case in again entering summary judgment against Hochstadt. Therefore, the summary judgment is reversed. Equity Residential Props. Trust v. Yates, 910 So.2d 401, 405 (Fla. 4th DCA 2005); Dicks v. Jenne, 740 So.2d 576, 577 (Fla. 4th DCA 1999).

On remand, the trial court shall also allow Appellant to amend the cross-claim separating the waste claim from any independent unpaid taxes claim, which, in accordance with our earlier decision, is not to be included in the waste claim.

STONE, POLEN and FARMER, JJ., concur.


author: STONE, J.

text:
    Laurence ZIMMERMAN and Kimberly Zimmerman, Appellants, v. OLYMPUS FIDELITY TRUST, LLC and Colonial Bancgroup, Inc., an Alabama banking corporation f/k/a Palm Beach National Bank & Trust Company, Appellees.
    No. 4D05-2037.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Sept. 12, 2006.

      Gerald F. Richman, Donall O’Carroll and Stefanie R. Shelley of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., and Richard P. Zaretsky of Richard P. Zaretsky, P.A., West Palm Beach, for appellants.
    Mark R. King of Miller, Hamilton, Snider & Odom, L.L.C., Miami, for Appellee-Colonial Bancgroup, Inc.
   STONE, J.

The Zimmermans, mortgagors, appeal a final summary judgment entered on their breach of contract claim against mortgagee Colonial. We affirm.

In 1998, the Zimmermans executed a promissory note in favor of Palm Beach National Bank and Trust Company (PBNB) in the amount of $2,500,000 that was secured by a mortgage on a Palm Beach residence (“first mortgage”). The relevant provisions of the first mortgage are as follows:

Paragraph 18 — Borrower’s Right to Reinstate
If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued... .These conditions are that Borrower: (a) pays Lender all sums which would then be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements....
Paragraph 21 — Acceleration; Remedies
Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure....

Later in 1998, the Zimmermans executed an equity line of credit agreement in the amount of $450,000, later increased to $1,150,000, that was secured by a second mortgage (“second mortgage”).

The relevant provisions of the lender’s rights portion of the equity credit agreement are as follows:

(a) Termination and Acceleration. We can terminate your Credit Line Account and require you to pay us the entire outstanding balance in one payment, and charge you certain fees, if any of the following happen:
(2) You do not meet the repayment terms of this Credit Line Account.
(b) Suspension or Reduction. In addition to any other rights we may have, we can suspend additional extensions of credit or reduce your Credit Limit during any period in which the following are in effect:
(3) You are in default under any material obligations of this Credit Line Account. We consider all of your obligations material. Categories of material obligations include the events described above under Termination and Acceleration, obligations to pay fees and charges ... No default will occur until we mail or deliver a notice of default to you, so you can restore your right to credit advances.

The relevant provisions of the second mortgage are as follows:

IX. If default should be made in the payment of any installment of principal or interest of said Note or any part thereof for ten (10) days after it is due, or in payment when due of any other sum secured hereby, without notice or demand which are hereby expressly waived ... then all of the indebtedness secured hereby shall become and be immediately due and payable at the option of Mortgagee....
XXV. An event of default in any obligation between Bank and Borrower (this loan or “Related Loans”) shall be deemed an event of default in all obligations between Bank and Borrower or Related Borrowers (“Cross-Default Right”) and, in such event, Bank may proceed to enforce any security interest irrespective of which indebtedness it secures and utilize all rights and remedies available at law (“Cross-Col-lateralization Right”).

In 2001, pursuant to paragraph 21 of the first mortgage, PBNB sent a notice of default to the Zimmermans for arrearages in payments on both mortgages and filed a complaint to foreclose the mortgages. On July 31, 2001, the parties entered into a settlement, which required the Zimmer-mans to pay the arrearages and provided a new maturity date for both mortgages.

In January 2002, PBNB advised the Zimmermans that they were once again in default on the mortgages because of ar-rearages. This notice did not comply with the notice provision in paragraph 21 of the first mortgage. PBNB then filed a motion for default and entry of final judgment. At the hearing on the motion of default, the Zimmermans’ attorney claimed PBNB’s attorney refused to accept a check he tendered on behalf of the Zimmermans representing his understanding of the ar-rearages due.

The court granted PBNB’s motion for default and entry of final judgment and PBNB filed a motion for summary judgment of foreclosure as to both mortgages. The court entered a final judgment of foreclosure which the Zimmermans appealed. Zimmerman v. Olympus Fid. Trust, 847 So.2d 1101 (Fla. 4th DCA 2003). We reversed because the settlement agreement did not provide summary foreclosure as a remedy.

Following remand, the Zimmermans ultimately filed the instant amended complaint. Count II is for breach of contract against Colonial, wherein the Zimmermans allege that Colonial breached by failing to reinstate the mortgages.

Colonial filed a motion for summary judgment as to count II of the amended complaint. Colonial asserted that pursuant to the provisions of the lending documents, the Zimmermans were not entitled to reinstatement in January 2002, or any time thereafter. The court granted Colonial’s motion for summary judgment.

It is undisputed that the Zimmermans failed to tender the accelerated balance due on the second mortgage and that Colonial did not allow the Zimmermans to reinstate the mortgages.

“It is well settled that where a term of a contract is clear and unambiguous or only one logical interpretation consistent with the intent of the parties exists, the court must give the contract that meaning.” Gorman v. Kelly, 658 So.2d 1049, 1052 (Fla. 4th DCA 1995)(citing Blue Cross & Blue Shield of Fla. v. Cassady, 496 So.2d 875, 877 (Fla. 4th DCA 1986)).

We reject the Zimmermans’ contention that Colonial breached the mortgages by Colonial’s failure to comply with the notice provision contained in paragraph 21 of the first mortgage. We conclude that whether proper notice under the first mortgage was given is not dispositive as, here, the significant issue is whether the Zimmermans had a right to reinstate.

Under the terms of the second mortgage, Colonial had the right to accelerate that mortgage when the Zimmermans defaulted by failing to make payments, there was no requirement to give prior notice of cancellation, and the Zimmermans had no right under that mortgage to reinstate. While the Zimmermans did have a right to reinstate under the first mortgage, reinstatement was contingent upon their curing the default under the second mortgage. To cure the default under the second mortgage, the Zimmermans were required to pay the accelerated amount of that mortgage, which they undisputedly did not do.

Because we conclude that the borrowers had no right of reinstatement under the circumstances, we affirm the entry of summary judgment.

POLEN and FARMER, JJ., concur.

      . PBNB was acquired by Colonial Bank. The promissory notes in question were then assigned to Olympus. The final summary judgment on appeal relates only to a breach of contract claim against Colonial.

      . Counts I and III of the amended complaint were against Olympus and are not at issue in this appeal.


author: SHAHOOD, J.

text:
    The SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Appellant, v. TRINTEC CONSTRUCTION, INC., et al., Appellees.
    No. 4D05-2062.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Sept. 12, 2006.

      F. Malcolm Cunningham, Jr., and Amy L. Fischer of The Cunningham Law Firm, P.A., West Palm Beach, for appellant.
    Claudia R. Capriles and David R. Elder of Elder & Lewis, P.A., Coconut Grove, for appellee Trintec Construction, Inc.
   SHAHOOD, J.

This is an appeal by the School Board of Broward County from a final judgment entered in favor of Trintec Construction, Inc. and its surety, Great American Insurance Company. The judgment was entered pursuant to a jury verdict. Trintec cross-appeals from an order granting the School Board summary judgment on liquidated damages as to Cresthaven, one of the elementary schools on which Trintec performed construction in this case. We affirm the appeal and cross-appeal as to all issues raised. We write to address two issues raised on appeal.

The first issue we address is whether the trial court erred in sustaining Trintec’s peremptory challenge to Thelma Harper, an African-American female, during jury selection.

The School Board argues that Trintec’s peremptory jury strike of Ms. Harper was racially discriminatory because Trintec did not seek to challenge a white juror who also works for the government. Trintec contends that the trial court conducted a thorough Melbourne analysis and properly sustained its peremptory challenge of Ms. Harper. Trintec claims there were genuine differences between Ms. Harper and other prospective jurors who worked for government entities but were not challenged.

“[T]he appropriate standard for appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is the abuse of discretion standard.” Files v. State, 613 So.2d 1301, 1304 (Fla.1992). We note at the outset that “peremptor[y challenges] are presumed to be exercised in a nondiscriminatory manner.... [T]he trial court’s decision [regarding peremptory challenges] turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Melbourne, 679 So.2d at 764-65.

The School Board argues that the trial court misapplied Melbourne in the present case. In Melbourne, the supreme court set out the procedure courts should follow in dealing with allegedly racially-motivated peremptory challenges. The procedure was first announced by the supreme court in State v. Neil, 457 So.2d 481 (Fla.1984). Under this procedure, parties who believe their opponent is using peremptory challenges in a racially discriminatory fashion must timely object on that basis, demonstrating on the record that the challenged person is a member of a distinct racial group. The trial court then asks the striking party to come forward with its reason for. the strike. The striking party must provide a race-neutral reason. If the striking party provides a facially race-neutral explanation for the strike, and the court believes that, given the circumstances, the reason is not pre-textual, the strike will be sustained. The court’s focus with regards to the explanation given is not on the explanation’s reasonableness, but on its genuineness. Melbourne, 679 So.2d at 764.

The School Board argues that Trintee failed to offer a race-neutral explanation for why it challenged Ms. Harper. This characterization of the facts is incorrect in light of the requirements of Melbourne. Melbourne requires that the striking party offer a facially race-neutral explanation for its exercise of the peremptory strike. Trintee satisfied this requirement when it stated that its reason for striking Ms. Harper was that she works for a public body. Neil and Melbourne do not require the striking party to initially provide a race-neutral explanation for why it struck one proposed juror who was a member of a distinct racial group, and did not strike another proposed juror who is not a member of the racial group but to whom the striking party’s explanation equally applies. That consideration is a factor for the court to consider in the third step of the inquiry when it decides whether the striking party’s race-neutral explanation is pretextual. The School Board’s argument is, therefore, with the trial court’s implied finding that Trintec’s explanation for striking Ms. Harper was genuine and not pretextual.

The School Board focuses on a white prospective juror named Barbara Blenkle, a legal secretary for the State Attorney’s Office in Broward County. The School Board points out that Trintec’s facially race-neutral explanation, government employment, was equally applicable to Ms. Blenkle and to other white prospective jurors who were not challenged. Trintee argues that it exercised its peremptory challenge on the basis of genuine race-neutral differences between Ms. Harper and the other jurors who were governmental employees that were not challenged.

In addition to stating that Ms. Harper is employed by a public body, Trintec’s counsel reminded the court that Ms. Harper had stated that her position was similar to a superintendent of schools. Trintee claimed that the fact Ms. Harper’s position is similar to a superintendent of schools provided the reason for its challenge. Trintee points to the voir dire of Ms. Harper to further explain this point:

[MR. ELDER:] Ms. Harper, you are a program manager at the prison system, did I get that right?
[MS. HARPER:] Yes.
[MR. ELDER:] What programs?
[MS. HARPER:] Education programs including vocational and wellness.
[MR. ELDER:] When you say you are the program manager in education, help me out here.
[MS. HARPER:] It is akin to a superintendent because I oversee 14 different prisons within our state in the program section. So it is comparable to a superintendent of schools. The wardens are the principals and so forth.
So I do have to make sure that they are, first of all, hiring staff, make sure their credentials in line [sic] same as any other public school system. I plan programs, develop new programs if need be, find what the needs are for the inmates and try to accommodate those along with the rehabilitation area.

(Emphasis added).

In this case, it was not an abuse of discretion for the trial court to accept as genuine Trintec’s race-neutral explanation for striking Ms. Harper. Although Trintec failed to challenge white prospective jurors who were public employees, Trintec offered a race-neutral difference specific to Ms. Harper’s position as the reason it exercised the challenge on her. Ms. Harper’s position as coordinator of education programs was certainly relevant since Trintec sued a county school board. Whereas reasonable men could differ on whether Ms. Harper might hold bias in favor of educational establishments as a result of her position, the genuineness of Trintec’s race-neutral explanation, and not its reasonableness, is the trial court’s concern under Melbourne. We agree with the trial court and affirm as to this issue.

The second issue we discuss is whether the trial court erred in denying appellant’s multiple motions for summary judgment and motion for directed verdict.

The School Board’s Project Architect was Joseph Masullo. The vice president of Trintec was Juan Romero. The parties’ contract required Trintec to submit a Change Order Request (COR) any time it intended to perform work it believed was not within the scope of the contract. Ma-sullo rejected Trintec’s CORs, claiming the work was within the scope of the contract. Trintec’s claim sought compensation for construction work done on the project for which it had submitted CORs to Masullo. In opposition to the School Board’s motions for summary judgment and directed verdict, Trintec filed affidavits from Romero which disputed exactly what work was contemplated and agreed to in the contract.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.... If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.” Everett Painting Co. v. Padula & Wadsworth Constr., Inc., 856 So.2d 1059, 1061 (Fla. 4th DCA 2003).

It is proper to grant a motion for directed verdict only if there is no evidence upon which a jury could find against the party for whom the verdict is directed. For the purposes of a motion for directed verdict, the party who moves for directed verdict admits the facts in evidence and every reasonable and proper conclusion therefrom which is favorable to the adverse party. See Rosa v. Dep’t of Children & Families, 915 So.2d 210, 211 (Fla. 1st DCA 2005).

The affidavits created a material question of fact that warranted determination of the issues by a jury. We, therefore, affirm the trial court on this issue.

Affirmed.

STEVENSON, C.J., and MAY, J„ concur.

      . Melbourne v. State, 679 So.2d 759 (Fla. 1996).


text:
    The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellant, v. TRINTEC CONSTRUCTION COMPANY, INC., and The Great American Insurance Company, Appellees.
    No. 4D05-4085.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.
    Rehearing Denied Aug. 28, 2006.

      F. Malcolm Cunningham, Jr. and Amy L. Fischer of The Cunningham Law Firm, P.A., West Palm Beach, for appellant.
    David R. Elder and Lisa N. Balkin of Elder & Lewis, P.A., Coconut Grove, for appellees.
   PER CURIAM.

Affirmed. Reinhart v. Miller, 548 So.2d 1176 (Fla. 4th DCA 1989).

GUNTHER, HAZOURI and MAY, JJ., concur.


author: POLEN, J. STONE, J.,

text:
    Amilia Adele GLENNEY, Appellant, v. Howard C. FORMAN, as Clerk of Court, Broward County, Florida, Appellee.
    No. 4D05-1965.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Sept. 15, 2006.

      Hugh L. Koerner of Hugh L. Koerner, P.A., Fort Lauderdale, for appellant.
    Susan F. Delegal and Hal B. Anderson of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

Amilia Adele Glenney appeals a final judgment granting a motion to dismiss the complaint she filed against appellee Howard C. Forman, as Clerk of Court, Bro-ward County (hereinafter “the Clerk”) for negligence and false arrest. For the reasons set forth herein, we reverse.

On August 17, 1999, Glenney was the victim of domestic violence committed by her husband, Shannon Glenney. Following an investigation by law enforcement authorities, the Broward County State Attorney’s Office filed a criminal information against Shannon Glenney, naming Amilia Glenney as the domestic violence victim.

Thereafter, the Clerk opened a court file listing Amilia as the criminal defendant. The Clerk summoned Amilia to appear for arraignment on December 3, 1999. Pursuant to the summons, Amilia appeared before the Honorable Alfred Horowitz for arraignment on December 3, 1999. At the arraignment hearing, Judge Horowitz advised Amilia that she was charged with the offense of battery. Amilia advised Judge Horowitz she believed there was a clerical error, and the following colloquy occurred: Court: The State’s alleging—

Assistant State Attorney: Wait, Judge. I think she’s right. It was actually her boyfriend that was the defendant in this case.
Amilia: I’m the victim.
Assistant State Attorney: I think the information even says she’s the victim.

Judge Horowitz then rescheduled the arraignment for January 7, 2000. Thereafter, the Assistant State Attorney orally “announced a ‘Nolle Pros in this case’ on behalf of the State of Florida.”

Subsequently, based on the rescheduled arraignment, the Clerk re-issued a summons for Amilia’s arraignment on January 7, 2000. On January 7, after Amilia failed to appear for the scheduled arraignment, Deputy Clerk Nancy DuPont issued a “No Bond” capias for Amilia’s arrest.

On November 13, 2000, Amilia was arrested on the “No Bond” capias and incarcerated in the Broward County Jail. The next day, following a magistrate hearing, Amilia was released on her own recognizance after the magistrate judge found a lack of probable cause for her arrest. Amilia was incarcerated in the Broward County Jail for approximately 24 hours before her release.

In her negligence claim (Count I), Glen-ney asserted that the Clerk “placed her in a ‘zone of risk’ for false arrest/false imprisonment by negligently creating the conditions and circumstances that proximately caused [her] arrest and incarceration.” In her false arrest/false imprisonment claim (Count II), Glenney asserted the Clerk “placed [her] in a ‘zone of risk’ for false arrest/false imprisonment by creating the conditions and circumstances that proximately caused [her] arrest and incarceration.”

The Clerk moved to dismiss the complaint and the trial court granted the motion. In its order, the court made the following findings of law and fact:

Even though this court finds that Ms. Glenney was the victim of an egregious error on the part of the Office of the Clerk of Court, this court finds itself constrained by the holding of Holodak v. Lockwood, 726 So.2d 815 (Fla. 4th DCA 1999) and Lovett v. Forman, 883 So.2d 319 (Fla. 4th DCA 2004). In both of these cases, the Fourth District Court of Appeal held that the Clerk did not owe a greater duty to the plaintiff than to the general public and the actions were therefore barred by sovereign immunity.

Subsequently, the trial court entered a Final Judgment dismissing the case with prejudice. This appeal followed. The standard of review for a dismissal of a claim for failure to state a cause of action is de novo. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002).

It is well settled that, absent a special relationship, no duty arises simply where the government owes a duty “to the general public, as opposed to an individual person.” Pollock v. Fla. Dep’t of Highway Patrol, 882 So.2d 928, 935 (Fla.2004). “The responsibility to enforce the laws for the good of the public cannot engender a duty to act with care toward any one individual, unless an official assumes a special duty with regard to that person.” Id. See also Holodak v. Lockwood, 726 So.2d 815, 816 (Fla. 4th DCA 1999) (holding that in government tort suits, plaintiffs must prove defendant breached a common law or statutory duty “owed to the plaintiff individually and not a tort duty owed to the public generally”).

Outside the narrow exception of land records, see First Am. Title Ins. Co. of St. Lucie County, Inc. v. Dixon, 603 So.2d 562 (Fla. 4th DCA 1992), this court has not recognized a duty of governmental officials to maintain records or issue paperwork for the benefit of an individual or particular group of individuals. See Lovett v. Forman, 883 So.2d 319 (Fla. 4th DCA 2004), rev. den., 894 So.2d 971 (Fla.2005) (holding that neither clerk nor sheriff owed plaintiff a special duty where clerk failed to notify sheriffs office that court had granted plaintiffs motion to set aside the capias, resulting in plaintiff being wrongfully arrested and incarcerated for over two months); Moore v. Dep’t of Corr., State of Fla., 833 So.2d 822 (Fla. 4th DCA 2002); (holding no special duty owed which would permit recovery against government where individual was wrongfully arrested because D.O.C. officer negligently failed to revoke outstanding warrant for her arrest after learning her probation was terminated); Holodak v. Lockwood, 726 So.2d 815 (Fla. 4th DCA 1999) (holding clerk did not owe individual drivers special duty of care to properly and timely record traffic violation fine payments different from duty owed the general public to keep proper records).

Nonetheless, under the facts as presented in Glenney’s complaint, set forth above, we hold that the trial court erred in ruling that the Clerk did not owe Glenney a duty under Florida law. We recognize that the Clerk has only a general duty to the public to maintain records in criminal cases and issue process, not a duty to any particular individual in a particular case. However, in the instant case, the in-court clerk should have corrected the file at the first arraignment,, after Glenney and the prosecutor both explained to the court that she was the victim in the battery case, not the criminal defendant. The Clerk’s duty to Glenney became a special duty to act non-negligently once the Clerk’s office became aware of the mistake in naming her as the criminal defendant and failed to correct it.

The issue of the existence of a legal duty of care is a threshold question that precedes any analysis of sovereign immunity. See Pollock, 882 So.2d at 932-33; Henderson v. Bowden, 737 So.2d 532, (Fla. 1999) (“A threshold matter is whether the sheriffs deputies had a duty to act with care toward the decedents; for, as we have stated time and again, there can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances.”). Because the trial court dismissed the complaint based on a legal duty analysis, it may still address the issue of sovereign immunity upon remand.

Based on the foregoing, we reverse the trial court’s order dismissing Glenney’s complaint with prejudice and remand this case to the trial court for further proceedings in accordance with this opinion.

FARMER, J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would affirm on the authority of Lovett v. Forman, 883 So.2d 319 (Fla. 4th DCA 2004).

      . There is no allegation in the complaint that the nolle pros was filed by the State Attorney’s Office or otherwise formally entered in the record by the court.

      . Imposing liability in this case may be an issue of first impression for this court.


text:
    Ronald C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-956.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Rehearing Denied Sept. 12, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Williams appeals his conviction and habitual offender sentence for burglary of a dwelling and petit theft. We affirm the conviction, but reverse the sentence.

Williams, shortly before trial, discharged his court-appointed counsel and elected to represent himself. The trial court conducted a hearing, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and accepted Williams’ waiver of counsel as knowing and voluntary. The discharged attorney was assigned to sit in as stand-by counsel to aid in procedural matters.

The sentencing was held approximately five weeks after trial. Stand-by counsel was present at sentencing, but did not participate in any meaningful way. The trial court began the hearing by acknowledging that Williams continued to represent himself, but made no further inquiry or comment as to his proceeding pro se. We note that, following sentencing, Williams asked whether an attorney would be able to represent him in his appeal and expressed gratitude when told yes. The trial court also advised him that he would be entitled to an attorney and an eviden-tiary hearing if the state pursued a restitution claim.

Failing to advise Williams at sentencing of his continued right to counsel is an abuse of discretion. Florida Rule of Criminal Procedure 3.111(d)(5) specifies: “If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”

Sentencing is considered a critical stage at which a defendant is entitled to counsel. Wilson v. State, 764 So.2d 813, 816 (Fla. 4th DCA 2000). “Even if a defendant does not request appointment of counsel [at sentencing], this omission is not considered a knowing waiver of the right to counsel.” Kepner v. State, 911 So.2d 1256, 1258 (Fla. 4th DCA 2005) (reversing for re-sentencing because the trial court failed to renew an offer of counsel prior to sentencing) (citing Hardy v. State, 655 So.2d 1245, 1248 (Fla. 5th DCA 1995)).

When Williams initially waived his right to counsel, the trial court’s inquiries were specifically addressed to his self-representation at trial. “Where the right to counsel has been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.” Segal v. State, 920 So.2d 1279, 1280 (Fla. 4th DCA 2006)(quoting Traylor v. State, 596 So.2d 957, 968 (Fla.1992)).

We have considered Rogers v. Singletary, 698 So.2d 1178 (Fla.1996), but deem it inapposite. Rogers was an ineffective assistance of appellate counsel claim, not a direct appeal of a trial court’s failure to renew an offer of assistance. Furthermore, in that case, there was an inquiry, but it was deemed deficient.

We recognize that in McCarthy v. State, 731 So.2d 778 (Fla. 4th DCA 1999), we affirmed, despite the trial court’s failure to re-advise or inquire at sentencing. However, it does not appear that advice at sentencing was an issue in that appeal. We also note that, in that case, the standby attorney participated at sentencing and argued against McCarthy’s habitualization. Id. at 781.

Therefore, the sentence is reversed and we remand for re-sentencing.

POLEN and FARMER, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    J.B. and D.P., Parents of J.P., a child, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 5D06-631.
    District Court of Appeal of Florida, Fifth District.
    July 7, 2006.
    Rehearing Denied Aug. 16, 2006.
    Timothy A. Straus, of Moyer, Straus & Patel, P.A., Altamonte Springs, for Petitioner, J.B.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Petitioner, D.P.
    Charles D. Peters, Orlando, for Respondent.
   PER CURIAM.

The parents of J.P. seek review of a shelter order. We have recently decided the identical issue in L.M.C. v. Department of Children and Families, 935 So.2d 47 (Fla. 5th DCA 2006). Accordingly, we treat the petition for certiorari as a notice of appeal and, consistent with L.M.C., we reverse.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ., concur.

GRIFFIN, J., concurs and concurs specially, with opinion.

GRIFFIN, J.,

concurring and concurring specially.

The issue presented is exactly what parents are entitled to do at the shelter hearing mandated by section 39.401, Florida Statutes (2005). In this and several other such proceedings, including L.M.C. v. Department of Children & Families, 935 So.2d 47 (Fla. 5th DCA 2006), Judge Hau-ser apparently has’ decided that parents have no right to contest whether the child should be sheltered once the court finds probable cause, but may only be heard on where the child should be placed. This is based, in part, on a lack of symmetry between provisions of the shelter statute and the rules of juvenile procedure. The relevant statute gives parents the right to appear and “present evidence” at a shelter hearing. See § 39.402(5)(b)l, Fla. Stat. (2005) (“The parents or legal custodians shall be given written notice that: 1. They will be given an opportunity to be heard and to present evidence at the shelter hearing.”); § 39.402(8)(c), Fla. Stat. (2005) (“At the shelter hearing, the court shall ... 3. Give the parents or legal custodians an opportunity to be heard and to present evidence.”). In contrast, the Florida Rule of Juvenile Procedure 8.305(b)(3) provides that: “The issue of probable cause shall be determined in a nonadversary manner, applying the standard of proof necessary for an arrest warrant.” However, the juvenile rules continue in the next section: “At the hearing, all interested persons present shall have an opportunity to be heard and present evidence on the criteria for place ment provided by law.” See Fla. R. Juv. P. 8.305(b)(4) (emphasis added).

Judge Hauser recognizes in the order that parents have a right to be heard on “the criteria for placement,” but he appears to equate this with the issue of where the children should be placed. His order states:

The only way this court can reconcile the three rules and the statute is to apply a two step approach. First the court decides the issue of probable cause. The court does so in a purely non adversarial manner, based solely on the information contained in the shelter petition filed by DCF, much as it would decide whether to grant an arrest warrant. Fla.R.Juv.P. 8.305(b)(3). When a court decides to grant or deny an arrest warrant, it does so based on the four corners of the document. The defendant is not given an opportunity to attack the credibility of the warrant. Likewise the decision to find probable cause at the shelter hearing will be based solely on the shelter petition.
If the court finds probable cause, then the court will decide where the child should be placed and a date will be set for the arraignment. Once the court has decided the issue of probable cause, the rules are crystal clear that the parents are permitted to present evidence at the shelter petition hearing to determine where the child will be placed. Fla.R.Juv.P. 8.305(b)(4). The parents or guardians can testify and independent witnesses can also testify. If the parents wish to cross exam the DCF case worker they will be permitted to do so as well. If after finding probable cause, the court sufficiently questions the veracity of DCF’s petition, the court can always return the children to the parents and decide the issue of dependency at trial, if DCF chooses to file a dependency petition.

Putting all of this together, it appears to me that Judge Hauser was correct that “probable cause” is not a matter for hearing or the taking of evidence. If probable cause is not found by the court, there is no hearing; if probable cause is found, a hearing must be conducted on the “criteria” established to determine whether shelter is appropriate. See § 39.402(8)(h), Fla. Stat. (2005). We recently said in L.M.C. that the parents are entitled to be heard on the issue of probable cause and that decision is binding. Whether viewed as a hearing on “probable cause,” or the “criteria for placement,” or even “where the children will be placed” (if that includes a return to the parents), however, the underlying issues appear to be essentially the same.

      . The rule thus provides in relevant part as follows:
      (3) The issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant.
      (4) At the hearing, all interested persons present shall have an opportunity to be heard and present evidence on the criteria for placement provided by law.
      (5)The court may base its determination on a sworn complaint, testimony, or an affidavit and may hear all relevant and material evidence, including oral and written reports, to the extent of its probative value even though it would not be competent at an adjudicatory hearing.


author: CASANUEVA, Judge.

text:
    Chris P. TSOKOS; Hwy 301 South Property, LLC; Riverview South Trailer Park, LLC; and SR 672 Property, LLC, Petitioners, v. SUNSET COVE INVESTMENTS, INC., a Florida corporation, Respondent.
    No. 2D06-1221.
    District Court of Appeal of Florida, Second District.
    July 14, 2006.
    Richard K. Fueyo and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, for Petitioners.
    Matías Blanco, Jr., Tampa, for Respondent.
   CASANUEVA, Judge.

Chris Tsokos and three companies of which he is the principal — Hwy 301 South Property, LLC; Riverview South Trailer Park, LLC; and SR 672 Property, LLC (hereinafter Tsokos) — petition this court for a writ of prohibition quashing an order to show cause why they should not be held in indirect criminal contempt for their willful disobedience of and interference with the final judgment in a lawsuit to which they were not parties. Prohibition is an appropriate remedy to prevent judicial action “when a party is about to be cited for contempt on the basis of acts which could not constitute contempt of court.” State ex rel. Gillham v. Phillips, 193 So.2d 26, 29 (Fla. 2d DCA 1966). See also Eubanks v. Agner, 636 So.2d 596, 597 (Fla. 1st DCA 1994). In the present case, the final judgment did not proscribe the conduct that forms the basis of the order to show cause. We therefore grant the petition and order that no further proceedings be held on the order to show cause.

The underlying lawsuit began as an action by Sunset Cove to enforce the sale of commercial real estate. According to the complaint, in April 2004, Benny G. Santiago executed an “As Is” Sale and Purchase Contract in which he agreed to sell five parcels of property to Sunset Cove, Sunset Cove had problems obtaining financing to close according to the contract terms. On March 30, 2005, Sunset Cove and Santiago executed a mediated settlement agreement in which Santiago agreed to sell Sunset Cove four of the five parcels. Their agreement provided for closing of the sale within ninety days. The final judgment incorporated all provisions of the mediated settlement agreement and retained jurisdiction to enforce them. The final judgment was recorded on April 18, 2005, along with a renewed lis pendens.

On June 6, 2005, Tsokos sought to intervene in the Sunset Cove lawsuit on the basis that he had entered into land sale contracts with Santiago that were superior in priority to any claim memorialized by any settlement reached with Sunset Cove. The circuit court denied the motion to intervene, finding that Tsokos’s contracts were back-up contracts and that Tsokos could not intervene after the entry of the final judgment.

For reasons not pertinent here, the sale between Sunset Cove and Santiago did not close as scheduled in the mediated settlement agreement and final judgment. On September 27, 2005, three months after the scheduled closing date, Tsokos bought from Santiago the four parcels of property that were the subject of the final judgment. On November 21, 2005, Sunset Cove filed a verified motion for order of contempt against third parties. The motion alleged that Tsokos and his corporations knowingly aided and abetted or assisted Santiago in violating the final judgment or were in privity with Santiago. In February 2006, the circuit court conducted a hearing on Sunset Cove’s motion to determine whether it had authority to hold Tsokos in criminal contempt. The circuit court found it had such authority and issued the order to show cause, which stated that Tsokos had actual knowledge of the final judgment and of Sunset Cove’s enforcement action. The court declared that it had jurisdiction to consider the indirect criminal contempt of Tsokos and his companies for their willful disobedience and interference with the final judgment. Although the order to show cause is deficient because it did not state the necessary facts to support a charge of criminal contempt, it is clear from the record of the hearing that the order to show cause was based on Tsokos’s purchase of the properties. Because the circuit court acted in excess of its jurisdiction, it is not necessary to address this deficiency.

It is well-established that “[o]ne may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction.” And, “implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.”

Cooley v. Moody, 884 So.2d 143, 145 (Fla. 2d DCA 2004) (internal citations omitted). See also Keitel v. Keitel, 716 So.2d 842 (Fla. 4th DCA 1998) (holding that even though the former husband’s visitation rights were implicitly obstructed by the former wife’s relocation to New York, the final judgment did not contain an express provision prohibiting relocation and implied or inherent provisions of a final judgment cannot serve as the basis for an order of contempt). Here, as Tsokos argues in the petition, the final judgment did not expressly prohibit a third party from purchasing the property after the closing date incorporated into the final judgment.

In Osmo Tec SACV Co. v. Crane Environmental, Inc., 884 So.2d 324, 328 (Fla. 2d DCA 2004), this court reversed an order holding third parties in contempt on the ground that the injunction did not specifically prohibit the conduct for which the alleged contemnors were found in contempt. Crane Environmental had sued Andalite Industries, a company selling water filtration systems, and requested a temporary injunction to prevent violation of a noncompete agreement. The trial court entered a temporary injunction requiring that Andalite and its owners cease their water filtration business whether through its fictitious name of Haliant Technologies or through a third party. After the injunction issued, Osmo Tec purchased virtually all of Andalite’s water filtration assets, including intangible property, capital equipment, and inventory. Id. at 325-26. Crane Environmental then moved to have Osmo Tec and its owner and manager held in contempt in its lawsuit against Andalite and its owners, even though Osmo Tec and its owner and manager were not parties. See id. at 326.

In its order of contempt, the circuit court specifically found Osmo Tec and its manager in contempt and implicitly found the owner of Osmo Tec in contempt for violating the injunction. See id. at 326 n. 1. The circuit court found that, prior to purchasing Andalite’s assets, Osmo Tec and its owner and manager had actual knowledge of the injunction enjoining An-dalite from continuing operations. This finding was not in dispute. On appeal, Osmo Tec and its owner and manager argued that the injunction did not prohibit the sale of the Andalite’s assets to a third party. This court agreed, concluding that the temporary injunction lacked a reasonably detailed description of the conduct for which the trial court held the Osmo Tec parties in contempt.

From a review of the transcript of the contempt hearing, it is apparent that the trial court’s rationale for finding the appellants in contempt was its belief that the purpose of the injunction was to destroy the ongoing operations of a company that had grown as a result of violations of a valid noncompete agreement. However, that purpose was not reflected in the written order imposing the injunction. The temporary injunction specifically enjoined neither the sale of any asset of Andalite Industries nor the use of the name of Haliant Technologies by any third parties — such as the appellants — in connection with a water filtration business.

Id. at 327.

In spite of their different procedural contexts, the rationale of Osmo Tec is applicable to this case. Here, the purpose of the final judgment was to ratify the mediated settlement agreement between Sunset Cove and Santiago. However, just as in Osmo Tec, in which the temporary injunction did not prohibit the sale of Andal-ite’s assets, here the final judgment did not prohibit a third party from purchasing the real estate in question. Because the final judgment did not proscribe the conduct forming the basis of the order to show cause, we grant the petition and order that no further proceedings be held on the order to show cause.

Petition granted.

SALCINES and KELLY, JJ., Concur.

      . In the petition filed in this court, Tsokos alleges that he had entered into separate contracts for two of the real estate parcels before Sunset Cove and Santiago executed the mediated settlement agreement.

      . In its response to the petition, Sunset Cove cites an order holding Santiago in civil contempt, which found that the sale to Tsokos took place while Sunset Cove's motion to enforce the final judgment was pending. According to the response, an order of contempt against Santiago was rendered just days before Sunset Cove filed its verified motion for order of contempt against third parties.

      . The trial court's finding in the order to show cause that Tsokos had actual knowledge of Sunset Cove's motion to enforce the final judgment appears to be based on Sunset Cove's argument at the hearing on the motion for contempt. Sunset Cove maintained that it filed the motion to enforce the final judgment prior to Tsokos’s motion to intervene in the underlying lawsuit.

      . See Hagerman v. Hagerman, 751 So.2d 152 (Fla. 2d DCA 2000) (holding that an order to show cause was deficient when it merely stated that the defendant had violated a prior court order and did not include the facts that purportedly constituted the criminal contempt).

      . Florida Rule of Civil Procedure 1.610(c) requires that every injunction "shall describe in reasonable detail the act or acts to be restrained.”


text:
    Robin Lee WEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1642.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Rehearing Denied Aug. 29, 2006.
    Robin L. Weeks, Bushnell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Robin L. Weeks appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule Criminal Procedure 3.800(a). We affirm. Weeks was sentenced under the 1993 sentencing guidelines. After considering the one-cell bump authorized due to his violation of probation, Week’s sentence of twenty-two years in prison was within the range permitted. See Fla. R.Crim. P. 3.701(d)(14).

AFFIRMED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    John G. PRYOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3151.
    District Court of Appeal of Florida, First District.
    July 24, 2006.
    Rehearing Denied Aug. 24, 2006.
    John G. Pryor, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, ALLEN, and THOMAS, JJ., concur.


text:
    PALM BEACH DERMATOLOGY and PBOA, Inc., Appellants, v. Michele MIKAN, Appellee.
    No. 1D05-0956.
    District Court of Appeal of Florida, First District.
    July 26, 2006.
    Rehearing Denied Aug. 24, 2006.
    Nicholas A. Shannin, of McDonough, Wieland & Shannin, Orlando, for Appellants.
    Kenneth B. Schwartz, West Palm Beach, for Appellee. .
   PER CURIAM.

The employer/carrier appeals an order awarding permanent total disability (PTD) benefits to the claimant, appellee. We reverse. The record shows that the claimant has not reached actual maximum medical improvement (MMI). Where a claimant has not reached MMI by the expiration of the temporary benefit period and has presented no competent substantial evidence that she will be totally disabled when she does reach MMI, any claim for PTD benefits is premature. Olmo v. Rehabcare Starmed/SRS, 930 So.2d 789 (Fla. 1st DCA 2006). In this case, the claimant has not provided any competent substantial evidence that she will be totally disabled when she does reach MMI. Therefore, the award of PTD benefits, notwithstanding that claimant was no longer entitled to temporary benefits, constituted error. See generally id.

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


author: WARNER, J.

text:
    Ernest JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2854.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Victoria Vilchez of Victoria Vilchez & Associates, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion to Set Aside Mandate

WARNER, J.

We grant the motion to set aside mandate, withdraw our prior opinion and substitute the following in its place.

We affirm the conviction and sentence of appellant for second degree murder with a firearm. The appellant contends that his conviction should be reversed because it was based entirely on circumstantial evidence which did not refute the appellant’s reasonable hypothesis of innocence. We conclude that this was not a circumstantial evidence case, and even if it were, the evidence easily overcomes any reasonable hypothesis of innocence. With respect to his sentence, we also conclude that the trial court did not err in considering two prior convictions proved by a photograph of the appellant and not by fingerprints.

“[C]ourts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). A special standard of review applies, however, when proof of the offense depends entirely on circumstantial evidence. Boyd v. State, 910 So.2d 167, 180 (Fla.2005). In such a case, a motion for judgment of acquittal should be granted “if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

The appellant argues that the case against him was entirely circumstantial because there was no confession, and none of the state’s eyewitnesses saw a gun or specifically testified that they saw the appellant shoot the victim. Contrary to the appellant’s position, there was “direct” evidence that the appellant shot the victim. An eyewitness testified that she saw the appellant’s arm extended toward the victim and further saw smoke and sparks come from the appellant’s hand. The victim dropped to the ground and died. This constitutes direct evidence that the appellant caused the victim’s death even though no gun was found and no other physical evidence tied the appellant to the crime.

In the present case, two eyewitnesses testified that they saw the appellant extend his arm and hand toward the victim’s head. One witness, Tanya, testified that she saw the appellant’s hand “jump” during two shots. Furthermore, another witness, Leona, testified that she saw smoke and sparks of fire coming from the appellant’s hand and that the appellant was holding something silver in his hand. Leona testified that she saw the appellant then walk to the front of the victim and again saw smoke and sparks coming from his hand. Moreover, Leona testified that she heard the appellant say, “That’s for my brother.”

Quite simply, there is no reasonable hypothesis of innocence consistent with the following evidence presented by the state: 1) the appellant extended his arm and hand toward the victim’s head while holding a silver object; 2) the eyewitnesses heard several sounds consistent with gunfire; 3) the appellant’s hand was observed “jumping” with smoke and sparks coming out; and 4) the victim fell over and died. The state therefore presented sufficient evidence from which the jury could exclude every reasonable hypothesis of innocence. While the credibility of many of the witnesses was severely tested at trial, the state still presented a prima facie case, and the appellant has not suggested what his reasonable hypothesis of innocence is. We assume that his claim is that he was not the shooter, but multiple witnesses testified that he was at the scene, and other witnesses testified as to remarks he made there. The appellant’s challenge to his conviction is meritless.

As to his sentence, the appellant contends that the court erred in considering two prior convictions on his scoresheet, because they were not proved by fingerprints to be his convictions. Although the fingerprints on the judgment could not be compared to the appellant’s current prints, the Department of Corrections’ fingerprint card for these offenses also contained a photo identification of the appellant. Because of the photo identification, the state carried its burden of proof on the issue. See Wencel v. State, 768 So.2d 494 (Fla. 4th DCA 2000) (holding that the state carried its burden of proof under the Prison Releasee Reoffender Act through photographic evidence rather than fingerprint comparison). The appellant could have presented evidence to rebut the state’s proof, but he chose not to do so. Therefore, the trial court did not err in relying on the identification evidence presented.

Affirmed.

GROSS and HAZOURI, JJ., concur.


text:
    Jason KILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1638.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.
    Rehearing Denied Sept. 20, 2006.
    See also, 860 So.2d 509.

      Jason Kiley, Bristol, pro se.
    No appearance required for appellee.
   PER CURIAM.

Jason Kiley appeals the denial of his motion for postconviction relief, which the trial court properly treated as a motion to correct illegal sentence under rule 3.800(a). We therefore designate this appeal as a 3.800(a) appeal. Kiley’s motion alleged that his habitual violent felony offender (HVFO) sentence for second-degree murder was illegal because a robbery conviction that was relied on by the State as a predicate offense for HVFO sentencing was not final at the time he committed the murder. Because the robbery conviction was final at the time Kiley was sentenced on the second-degree murder conviction, we affirm.

Kiley was adjudicated guilty of strong arm robbery on December 16, 1997, and sentenced to six months in jail. Kiley asked for and received a furlough. He was to turn himself in after the holidays. On December 23, 1997, Kiley brutally murdered his supposed friend and was arrested. See Kiley v. State, 860 So.2d 509 (Fla. 4th DCA 2003) (describing Kiley’s bludgeoning of the victim), rev. denied, 882 So.2d 385 (2004). Kiley never appealed his strong arm robbery conviction. Kiley argues that, at the time he committed the murder, his robbery conviction was not final because he was on a furlough and had not begun serving his sentence on that offense.

Kiley was sentenced for the murder on January 22, 1999, at which time the trial court relied on the prior robbery conviction to classify and sentence Kiley as an HVFO. We reject Kiley’s argument that the robbery conviction could not be used to habitualize him on the murder offense. The plain terms of the HVFO statute support this conclusion. The HVFO statute permits enhanced sentencing if the defendant has previously been convicted of an enumerated felony and the felony for which the defendant is to be sentenced was committed “[w]ithin 5 years of the date of the conviction” of the prior enumerated felony. § 775.084(l)(b)2.b„ Fla. Stat. Kiley committed the murder well within five years of his robbery conviction.

Kiley is correct that, under existing case law, a conviction that is not final, because it is on appeal, cannot be relied on for habitualization. See Martin v. State, 592 So.2d 1219 (Fla. 1st DCA 1992). Arguably, Kiley’s robbery conviction was not final because the time for filing an appeal had not expired when he committed the murder. Kiley’s robbery conviction, however, was final in January 1999 when the trial court sentenced him as an HVFO for the murder. The HVFO statute did not operate until the “separate proceeding” where the court had to determine whether Kiley qualified for the enhanced penalty. See § 775.084(3)(a), Fla. Stat. (requiring the court to determine if the defendant qualifies as an HFO or HVFO in “a separate proceeding” and setting out the procedure). The legislative intent of punishing more severely those offenders who commit violent offenses soon after a conviction for a prior enumerated felony clearly applies to violent offenders such as Kiley.

The case law we have examined also supports the conclusion that the time of sentencing as an HVFO is the relevant time frame for determining the finality of a prior conviction. See Delguidice v. State, 554 So.2d 35, 35 (Fla. 4th DCA 1990) (holding that the predicate conviction was not final “at the time of sentencing”); see also Breeze v. State, 641 So.2d 450, 451 (Fla. 1st DCA 1994) (remanding for resen-tencing, but instructing the trial court that it could not use any prior conviction that was not final as of the date of the original sentencing); Martin, 592 So.2d at 1221.

The motion to correct illegal sentence was properly denied because the robbery conviction in this case was final in January 1999 when the trial court determined that Kiley was an HVFO for sentencing on the murder conviction. We hold that the date of sentencing for the offense for which habitual offender sentencing is sought is the relevant time frame for determining the finality of predicate convictions.

Affirmed.

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


author: SHARP, W., Senior Judge.

text:
    Lucy STASIO, Appellant, v. Stephen McMANAWAY and Gail McManaway, Appellees.
    No. 5D05-3712.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.

      David LaCroix, Brooksville, for Appellant.
    Teresa D. Jones of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Sarasota, for Appel-lee.
   SHARP, W., Senior Judge.

Lucy Stasio, the plaintiff in an automobile negligence case, appeals an award of attorney’s fees and costs based on a rejected proposal for settlement. Stasio contends the proposal was ambiguous because the release attached to the proposal contained a discrepancy as to the settlement amount. We agree this discrepancy rendered the proposal invalid and thus did not support an award of attorney’s fees under the offer of judgment statute. Accordingly we reverse.

Stasio filed this lawsuit against Stephen and Gail McManaway for injuries sustained when the McManaways’ vehicle collided with her vehicle at an intersection. Stephen was driving the vehicle. Gail’s liability was only vicarious.

Prior to trial, Stephen served Stasio with a proposal for settlement. The proposal stated: “The amount which will be paid on behalf of STEPHEN MCMANA-WAY to LUCY STASIO is $60,000.” However, the release which was attached to the proposal states the consideration was “the sum of FIFTY NINE THOUSAND NO/100 DOLLARS ($60,000.00) ...” Stasio did not accept the proposal.

After the jury awarded Stasio only $24,370, Stephen moved for attorney’s fees and costs based on the unaccepted proposal. The trial court granted the motion in the amount of $43,667.15. The court found that while there was a typographical error in the amount in the release, the amount of the proposal was unequivocal.

The requirements for a valid proposal for settlement are set forth in section 768.79 and Florida Rule of Civil Procedure 1.442. The language in rule 1.442 must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that each party pay its own attorney’s fees. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003); Hibbard ex rel. Carr v. McGraw, 918 So.2d 967 (Fla. 5th DCA 2005).

The purpose of rule 1.442 is to sanction a party who does not timely accept a settlement offer made prior to trial by shifting payment and recovery of costs after the offer is made. It is a punitive measure and should be construed in favor of the party to be sanctioned. Hibbard; Loy v. Leone, 546 So.2d 1187 (Fla. 5th DCA 1989). But for the offer of judgment statute, the party would have to pay his or her own attorney’s fees. Hibbard, 918 So.2d at 971.

Because the offer of judgment statute and related rule must be strictly construed, virtually any proposal that is ambiguous is not enforceable. Hibbard; Barnes v. The Kellogg Company, 846 So.2d 568 (Fla. 2d DCA 2003), disapproved on other grounds, Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005). See also Nichols v. State Farm, 851 So.2d 742 (Fla. 5th DCA 2003), approved, 932 So.2d 1067 (Fla.2006) (terms and conditions of proposal should be devoid of ambiguity, patent or latent; moreover, proposal should be capable of execution without the need for further explanation or judicial interpretation).

The terms of any proposed release are also subject to rule 1.442. Palm Beach Polo Holdings, Inc. v. Village of Wellington, 904 So.2d 652 (Fla. 4th DCA 2005). In State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla.2006), the Florida Supreme Court recently held that releases required by a settlement proposal are conditions or nonmonetary terms that must be described with particularity under rule 1.442:

We think it clear that when an offeror insists that an offeree sign a general release, the release becomes a stipulation or prerequisite of the contract. Even if the release does not constitute the essence of the settlement proposal- and thus a condition under subdivision (c)(2)(C) of the rule-at the very least it qualifies as a nonmonetary term under subdivision (c)(2)(D).

932 So.2d at 1078-79.

In the present case, the proposal itself referred to the settlement amount as $60,000. However, the release stated the consideration was fifty-nine thousand dollar’s in words followed by the number $60,000.

The reference in the release to a settlement amount of $59,000 as well as $60,000 created a patent ambiguity. Contrary to McManaway’s contention, the release might be interpreted as providing for a settlement amount of $59,000. For example, under the Uniform Commercial Code, words prevail over numbers if an instrument contains contradictory terms. § 673.1141, Fla. Stat. A party could argue this principle should be applied to construe the release as providing for consideration of $59,000. Because the dollar amount of the settlement was not entirely clear, some explanation or clarification from McMana-way or judicial interpretation was needed.

Even assuming the reference to $59,000 was a mere typographical error, the consequences of that error must fall on McManaway. As this court has noted, the burden of clarifying the intent or extent of a settlement proposal cannot be placed on the party to whom the proposal is made. Dryden v. Pedemonti, 910 So.2d 854 (Fla. 5th DCA 2005).

Since the release was ambiguous, the proposal did not support an award of attorney’s fees under the offer of judgment statute. See Palm Beach Polo Holdings (offer of judgment failed to satisfy requirement that offers state with particularity all conditions and non-monetary terms; proposed general release attached to offer was ambiguous as to whether it would extinguish claims unrelated to those in the pending action); Nichols, 851 So.2d at 746 (where intent of release condition could not be determined without resort to clarification or judicial interpretation, release was not sufficiently particular and proposal for settlement would not support award of attorney’s fees). See also Hibbard (settlement proposal directed to passenger who was injured in an automobile accident was unclear and ambiguous and thus did not entitle defendants to award of attorney fees after entry of judgment in their favor); Jamieson (proposal for settlement was invalid where, among other things, the proposal listed settlement amount as $200 in one paragraph but as $1,000 in another paragraph).

Stasio also contends McManaway’s proposal was invalid because the proposal was a joint offer which failed to differentiate the settlement amount offered on behalf of each defendant. See Fla. R. Civ. P. 1.442(c)(3). McManaway argues the proposal was not a “joint” offer because it was made solely on his behalf and that Stasio waived this issue by failing to raise it below. Because of our conclusion that the proposal was invalid, we need not address these issues and leave them for another day.

REVERSED AND REMANDED.

HEDSTROM, E.E., Associate Judge, concurs.

SAWAYA, J., dissents without opinion.

      . Our review of this issue is de novo. Ambeca, Inc. v. Marina Cove Village Townhome Ass’n, Inc., 880 So.2d 811 (Fla. 1st DCA 2004); Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d DCA 2002).

      . 768.79. Offer of judgment and demand for judgment

        (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer ...
      (2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:
      (a) Be in writing and state that it is being made pursuant to this section.
      (b) Name the party making it and the party to whom it is being made.
      (c) State with particularity the amount offered to settle a claim for punitive damages, if any.
      (d) State its total amount.
      The offer shall be construed as including all damages which may be awarded in a final judgment.

      . Rule 1.442. Proposals for Settlement

      (c) Form and Content of Proposal for Settlement.
      (1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
      (2) A proposal shall:
      (A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
      (B) identify the claim or claims the proposal is attempting to resolve;
      (C) state with particularity any relevant conditions;
      (D) state the total amount of the proposal and state with particularity all nonmone-tary terms of the proposal;
      (E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
      (F) state whether the proposal includes attorneys’ fees and whether attorneys' fees are part of the legal claim; and
      (G) include a certificate of service in the form required by rule 1.080(f).

      . 673.1141. Contradictory terms of instrument
      If an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers.

      . (c) Form and Content of Proposal for Settlement.

      ís) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.


author: THOMPSON, J.

text:
    James Christopher SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4081.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.
    Heather M. Gray of Bodifor & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Appellant James Shelton (“Shelton”) appeals the summary denial of his rule 3.850 motion to vacate, set aside, or correct sentence based upon ineffective assistance of counsel. In July 2003, Shelton pled guilty in ten separate cases based on a plea agreement that capped his sentence at 139 months with a ten-year minimum mandatory based on Florida’s 10-20-life statute. Under the agreement, Shelton was allowed to request a youthful offender designation. In August 2003, the trial court rejected the youthful offender designation and sentenced Shelton as follows:

Case 2003-CF-2001: one count of burglary of a structure while armed, one count of grand theft and one count of grand theft, statutory property; 138.15 months in the Department of Corrections (“DOC”) on count one, with ten years minimum mandatory, and five years on count two and three followed by five years probation;
Case 2003-CF-206: one count of burglary of a structure and one count of grand theft; five years DOC, consecutive to case 2003-CF-201, followed by five years probation;
Case 2003-CF-143: one count of burglary of a structure and one count of grand theft; five years DOC followed by five years probation;
Case 2003-CF-144: one count of burglary of a dwelling and one count of grand theft; five years DOC followed by five years probation;
Case 2003-CF-145: one count of burglary of a dwelling and one count grand theft, five years DOC followed by five years probation;
Case 2003-CF-146: one count of burglary of a dwelling and one count of grand theft; five years DOC followed by five years probation;
Case 2003-CF-200: one count of grand theft; five years DOC followed by five years probation
Case 2003-CF-203: one count of burglary of a structure and one count of petit theft; five years DOC on count one and time served on count two followed by five years probation;
Case 2003-CF-208: on count of burglary of a structure and one count of grand theft; five years DOC followed by five years probation;
Case 2003-CF-211: one count of burglary of a structure and one count of grand theft; five years DOC followed by five years probation.

Shelton did not appeal.

In September 2005, Shelton filed a rule 3.850 motion that raised six separate claims of ineffective assistance of counsel, all of which were summarily denied. We affirm the denial of Shelton’s claims without further comment. However, the trial court granted relief to the extent that it ordered the DOC “to amend its records to reflect that Shelton was sentenced to 139 months in the Department of Corrections followed by five (5) years probation.” The correction of this scrivener’s error was designed to rectify the trial court’s error in sentencing Shelton to a consecutive five-year term in case no. 03-CF-206, which violated the plea agreement.

Shelton timely appealed, and the State conceded that the trial court’s correction still exceeded the terms of the plea bargain because the probation following the 139-month sentence was not a specific term of the plea agreement. The State concedes this court should rectify the sentencing issue under Green v. State, 700 So.2d 384 (Fla. 1st DCA 1997). Accordingly, we reverse with directions that the trial court either strike the probationary term or allow Shelton the opportunity to withdraw his nolo plea. See Green, 700 So.2d at 388; see also Hill v. State, 441 So.2d 650, 651 (Fla. 2d DCA 1983) (reversing with instructions to strike the $2,500 fine, which exceeded the plea agreement, or offer the opportunity to withdraw plea). We also note the sentence should be modified to reflect the 138.15-month sentence Shelton actually received.

REVERSED and REMANDED with DIRECTIONS.

GRIFFIN and MONACO, JJ., concur.

      . See § 775.087, Fla. Stat. (2003).

      . We also note that an independent review of the record, including the sentencing transcript and order, indicates Shelton was actually sentenced to 138.15 months’ incarceration, with a ten-year minimum mandatory. Therefore, the court’s correction impermissi-bly increased Shelton’s sentence from 138.15 months to 139 months.


text:
    Joshua ROGERS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2833.
    District Court of Appeal of Florida, First District.
    July 28, 2006.
    Rehearing Denied Aug. 30, 2006.
    Joshua Rogers, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Dep’t of Corrs., 727 So.2d 1103 (Fla. 1st DCA 1999).

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    Sally ARCE, as Guardian, etc., et al., Petitioners, v. MAHER GUILEY AND MAHER, P.A., et al., Respondents.
    No. 5D06-629.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.

      Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Petitioners.
    Steven R. Maher of Maher, Guiley & Maher, P.A., Winter Park, for Respondents.
   THOMPSON, J.

Petitioners seek certiorari review of a 15 December 2005 order appointing guardian ad litem and a 27 January 2006 order denying their motion for rehearing. They petitioned for certiorari review on 28 February 2006 and, uncertain of the appropriate remedy to review the orders, also filed a notice of appeal in this court. That case, case number 5D06-574, is currently pending. The order appointing a guardian ad litem is either a final, appealable order or a non-final, non-appealable order. If it is final and appealable, Petitioners’ remedy rests on direct appeal in case number 5D06-574. If it is a non-final, non-appeal-able order, their petition was untimely.

A certiorari petition must be filed within thirty days of rendition of the order to be reviewed. See Fla. R.App. P. 9.100(c)(1); Dep’t Health & Rehab. Servs. v. Career Serv. Comm’n, 448 So.2d 18, 19 (Fla. 1st DCA 1984). A motion for rehearing directed to a non-final order does not suspend the jurisdictional time for seeking review of the order by certiorari because rehearing is not authorized as to non-final orders. E.g., Coldwell Banker Commercial v. Wightman, 649 So.2d 346, 347 (Fla. 5th DCA 1995). The time limit to file a petition for writ of certiorari cannot be extended by obtaining a second order in the trial court to the same effect as the first. Bensonhurst Drywall, Inc. v. Ledesma, 583 So.2d 1094, 1094 (Fla. 4th DCA 1991). Here, the order to be reviewed was entered on 15 December 2005. If it is considered a non-final order, Petitioners had until 14 January 2006 to seek certiora-ri review. See id. at 1094-95. Their motion for rehearing did not toll the time for seeking certiorari relief.

Accordingly, the Petition for Writ of Certiorari is DENIED without prejudice to raise in case number 5D06-574 the nature and merits of the orders.

GRIFFIN and SAWAYA, JJ„ concur.