author: SALTER, J.

text:
    C.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1638.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Jamil S. Fraser and Jeffrey Rodriguez, Certified Legal Interns, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

C.A., a juvenile, appeals the denial of a motion to suppress evidence obtained in an in-school search. Finding that the search was not the result of a reasonable suspicion of criminal activity by C.A., we reverse.

At the time of the in-school incident, C.A. was fourteen years old. His teacher was working one-on-one with another student in her classroom during the break between classes. Although C.A. was also taught by that teacher during a different part of the school day, C.A. was not supposed to be in her classroom during the break.

The teacher asked C.A. to leave the classroom, and she asked him what he was doing there. C.A. answered that he “came to get something.” The teacher escorted C.A. to the door and went back to the student who had been talking with C.A. When she returned to that student, the teacher immediately smelled a strong smell of marijuana. Importantly, she had not smelled the odor of marijuana as she escorted C.A. to the door — she only recognized the smell when she returned to the other student after C.A. had left the room.

The; teacher left the classroom and asked the head of school security to investigate both C.A. and the other student. C.A. was then taken to the assistant principal’s office and questioned by the school security officer. When asked to empty his pockets, C.A. complied. Another school official asked if C.A. had anything in his wallet. When C.A. hesitated, the school official instructed C.A.: “If you have anything, go ahead and give it up so we don’t have to go through all of this.”

C.A. then opened his wallet and removed a bag of marijuana. A one-count petition for delinquency was filed charging C.A. with possession of cannabis. C.A. filed a motion to suppress, and this was denied by the trial court. Citing the “totality of the circumstances,” the trial court ruled that (a) no search under the Fourth Amendment had occurred, because the opening of the wallet by C.A. was voluntary, and (b) there was a reasonable basis for the school officials to ask C.A. whether he had anything he should not have.

C.A. entered a plea, reserving his right to appeal the denial of the motion to suppress. This appeal followed.

Search

The State candidly, and correctly, conceded at oral argument that C.A. was “searched” under the controlling Fourth Amendment case law. C.A. was clearly a suspect when escorted to the school officials’ offices, and the legal effect of the instruction to remove items from his pockets and wallet is the same as an officer’s search of the pockets and wallet. See State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979). The trial court erred when it determined that the encounter represented a consensual disclosure of the contents of C.A.’s pockets and wallet.

“Reasonable Suspicion” for the Search

In light of the State’s concession that the marijuana was obtained during a search, C.A.’s appeal turns on the reasonableness of the grounds for that search. In a school, the more relaxed “reasonable suspicion” standard applies. New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). A “reasonable suspicion” requires proof that the school officials have “specific and articulable facts that, when taken together with the rational inferences from those facts, reasonably warrant the intrusion.” C.G. v. State, 941 So.2d 503, 504 (Fla. 3d DCA 2006). Although a “hunch” or an “intuition” may in some instances disclose wrongdoing, these more ephemeral precursors to questioning are insufficient as a matter of law.

In this case, the teacher’s concern regarding the student in her classroom visited by C.A. and bearing the odor of marijuana (but only after C.A. had left the classroom) was based on specific, articula-ble facts and appropriate inferences from those facts. The same cannot be said of the facts regarding C.A., however. The teacher did not smell marijuana while in C.A.’s presence or while escorting him to the door, she did not see him take anything from (or pass anything to) the other student, and she simply associated C.A. with her suspicion that the other student possessed marijuana.

C.A. is correct that suspicion by association or transference is not “reasonable suspicion.” See M.S. v. State, 808 So.2d 1263 (Fla. 4th DCA 2002); R.J.M. v. State, 456 So.2d 584 (Fla. 3d DCA 1984).

Conclusion

C.A.’s points on appeal are well taken. The school officials’ instructions constituted a Forth Amendment search, and that search was not founded upon a “reasonable suspicion” directed at C.A. himself. Accordingly, it was error to deny the motion to suppress.

Reversed.

       We emphasize the vital role played by teachers in reporting suspicious activity in schools. In this case, the teacher properly reported to school security what she saw, heard, and smelled. In such cases, school security officials then have the difficult, but equally important job of ascertaining whether there are sufficient specific, articulable facts, and appropriate inferences from those facts, to warrant a search.


source: Caselaw Access Project

author: PER CURIAM. WARNER, J.,

license: Public Domain

text:
    Kenneth ROGERS, Appellant, v. Jennifer ROGERS, Appellee.
    No. 4D07-2545.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Rehearing Denied April 21, 2008.
    Kenneth Rogers, Punta Gorda, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed.

FARMER and GROSS, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur and write to address appellant’s due process argument. Appellant appeals a final judgment of dissolution of marriage entered when he was in state prison. He claims that he was deprived of procedural due process, because he was not properly given notice of the final hearing, nor was he given the opportunity to be present by telephone at the final hearing. Although the order setting trial was sent to the wrong prison, a later filing by appellant shows that he actually received the order setting trial over two weeks prior to the trial date. Thus, he received adequate notice of the trial. See Fla. Fam. L.R.P. 12.440(a) (“reasonable notice of not less than 10 days shall be given”). He did not attempt to contact the court regarding the trial date or file a motion to transport for trial or at least appear telephonically.

Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation (including family law cases) has the right to be heard but must take the initiative to secure the opportunity to appear and present his version of the facts. In other words,"the prisoner must bring to the court’s attention his desire to appear personally or telephonically at hearing or trial. See, e.g. Burch v. City of Lakeland, 891 So.2d 654 (Fla. 2d DCA 2005); Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996). Otherwise, the court will assume that the defendant does not desire to be present, just as it does with a non-incarcerated defendant who does not appear for trial in a civil matter.

A court is not required to grant a request to appear but can do so, depending upon the circumstances. See Brown v. Sheriff of Broward County Jail, 502 So.2d 88 (Fla. 4th DCA 1987). However, the prisoner first must raise the issue with the trial court. Appellant did not apprise the court of his desire to be present or move to continue the proceedings until he could be prepared. As such, he has not preserved his procedural due process argument.


author: STONE, J.

text:
    Deborah MARTIN, Appellant, v. GULFSTREAM METAL PLATING, INC., an administratively dissolved Florida corporation, and Dixie Metal Products, Inc., a Florida corporation, Appellees.
    No. 4D07-1916.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Bruce Botsford of Botsford & White, LLC, Hollywood, and M. Benjamin Mur-phey of Lawlor, Winston & Justice, P.A., Fort Lauderdale, for appellant.
    Richard A. Sherman, Sr. of Richard A. Sherman, P.A., Fort Lauderdale, and George L. Fernandez of Wolpe, Leibowitz, Alvarez & Fernandez, L.L.P., Miami, for Appellee-Gulfstream Metal Plating, Inc.
   STONE, J.

Martin appeals a final summary judgment in favor of the defendant, Gulf-stream. The suit is for personal injury that occurred when Martin’s feet became entangled in a dog leash causing her to fall. We affirm.

Martin was walking her employer’s eighty pound dog, Ben, when Ben pulled on the leash and ran around her in an effort to reach another dog owned by Newkirk, an employee of the defendant company. That dog, King, was on the street, unattended, and was around ten feet away at the time. The evidence is undisputed that the doggie encounter was friendly. The dogs “knew” each other, had played in the past, and were both behaving in a playful manner.

Martin acknowledges that this is not a case involving an injury on the property or involving a dog with a vicious propensity. There is no evidence that either dog acted hostilely, either at the time of the incident, or in the past, and no claim that either dog was vicious. It is undisputed that King had no connection to Gulfstream other than that Newkirk regularly brought the dog to work and left him unattended in the yard. The Gulfstream property was enclosed by a fence, and the fence gate was kept open during business hours.

Martin’s cause of action is based on a common law negligence claim against the employer for leaving the gate open and allowing King to freely roam off the property.

At the hearing, the trial judge asked whether a leash law was violated. Martin’s counsel responded “[tjhat’s not cited in the complaint, Your Honor.” The court then added, “[wjell, did you cite it anywhere in response to this motion for summary judgment, that there was a duty as a matter of law that this dog should have been leashed and it was loose and, therefore, it caused or contributed to the injury of your client?” Martin’s counsel then stated, for the first time, “I would make an oral motion for leave to amend to include an allegation regarding the violation of a leash law.” The court then addressed Gulfstream’s counsel, “[s]o the only issue is whether I should be ... granting your motion with finality or granting it with leave to amend. That’s the only issue.” Counsel responded,

They’re never going to be able to prove this happened on our client’s property. That’s undisputed based on the Plaintiffs testimony, and they’re never going to be able to prove that this dog was vicious because the Plaintiff herself admitted that it wasn’t. Therefore, leave to amend would be futile under the circumstances, your honor, regardless of whether there was a leash law or not.

At the conclusion of the hearing, the trial court took the amendment issue under advisement and subsequently granted Gulf-stream’s motion for summary judgment.

Martin now argues that the trial court erred in denying her oral motion for leave to amend because a Broward County ordinance “imposes the duty to prevent dogs from being at large on not just the dogs [sic] owner, but on ‘any person.’ ” Specifically, Martin cites to the section that states:

(a) It shall be a violation of this section for any person to permit any dog to be at large as defined herein.
(b) No dog shall be allowed to stray, run or go at large upon any public property or street, sidewalk....
*
(e) In order for a dog to be allowed on a public street, road, park or other public property ... the dog shall be under the direct control of the owner or keeper....

§ 4-3, Broward, Fla.

Martin cites no analogous authority for imposing liability on a landowner for injuries occurring off premises involving a dog that the landowner does not own and does not maintain or control. Here, there is no evidence that the dog was even on the property for the landowner’s benefit. Clearly, the only evidence that Gulfstream “harbored” Newkirk’s dog is that the company manager knew Newkirk brought the dog to work and did not object to its presence on the property.

Historically, tort liability for injuries caused by dogs has evolved with its very own unique set of statutory and common law rules. Tran v. Bancroft, 648 So.2d 314 (Fla. 4th DCA 1995). Cases also note the significant distinction between the claim against a property owner by a person injured on the property and an injury occurring off the property. In Tran, the defendant leased his property to the dog owner. Id. The dog jumped over a fence and attacked a neighbor. This court concluded that only the owner or “one who harbors” a dog could be held liable for such an attack. There, we recognized:

appellants cite no cases at common law in which a landlord, non-owner of a dog has been held liable to a plaintiff for injuries incurred outside the premises where the dog was maintained and kept by a tenant. Therefore, like the first district in Allen, and the second district in Ward, we decline to further extend the common law liability of a non-owner of a dog in the context of the facts of this case.

Id. at 316.

We further explained what was meant by the term “harbor”:

.., Appellant cites no common law authority for his position that a landlord may be liable for injuries caused by a tenant’s dog outside the property owned by the landlord. At common law, only those who owned the dog, had an interest in the dog, or harbored the dog could be liable for injuries caused by the animal. 4 AmJüR. 2d Animals § 98 (1962). A person was said to have harbored a dog if he or she undertook to care for the dog as the owners of such animals are generally accustomed to do. Id. “While owners are responsible for the mischief done by their dogs, no man can at common law, be held liable for the mischief done by another’s dog unless he had some agency in causing the dog to do it.” 4 Am.Jue. 2d Animals § 92 (1962).

Tran, 648 So.2d at 315; see also O’Steen v. Kemmerer, 344 So.2d 313 (Fla. 1st DCA 1977) (finding landowner not liable where an employee’s monkey escaped from property and attacked plaintiff off the premises).

In Allen v. Enslow, 423 So.2d 616 (Fla. 1st DCA 1982), a motorcyclist was injured when a tenant’s dog ran into the street. There, the court upheld dismissal of the claim against the landowner, citing O’Steen:

[tjhis court has refused to extend Christie [v. Anchorage Yacht Haven, Inc., 287 So.2d 359 (Fla. 4th DCA 1973)] to a situation where plaintiff was injured on her own property by wild animals alleged to be negligently maintained on the defendant landowner’s adjacent property by his employee, and with the defendant’s knowledge or notice, absent any interest in or use of the animals by the defendant landowner. O’Steen v. Kemmerer, 344 So.2d 313 (Fla. 1st DCA 1977). We are not persuaded by appellants’ attempts to distinguish O’Steen. That decision, precluding recovery in such circumstances by one injured on her own property, cannot in our opinion be reconciled with the asserted liability of the landlord in this case to one injured on the street by a tenant’s dog. Cf., collected cases, Anno. 18 A.L.R.3d 638.

Allen, at 616.

In Ward v. Young, 504 So.2d 528 (Fla. 2d DCA 1987), a tenant’s dog attacked the plaintiff. In reversing a summary judgment in favor of the landlord, the Second District made it clear that it was reversing solely because there were material issues of fact whether the dog was on or off the property, and the landowner could be found liable only if the dog bite occurred on the property.

We note that, even in the case of an attack by a vicious dog occurring on the property of a non-owner employer, we have held in favor of the landowner. In Roberts v. 219 South Atlantic Boulevard, Inc., 914 So.2d 1108 (Fla. 4th DCA 2005), we concluded that summary judgment is properly granted to a landowner where the plaintiff was bitten by a contractor’s dog. There, the employer knew about the dog and had never told the owner/contractor (treated as employee) that he could not bring the dog when he worked on the premises. While at work, the contractor/employee rolled down the windows and left the dog in the truck. The plaintiff was injured when he walked by the pick-up truck and the dog stuck its head out and bit his shoulder.

In Roberts, we recognized several factors to consider in resolving whether the employer could be liable:

We have held that an employer is not liable for injury caused to a third party by his employee’s dog if the bringing of the dog to work site: 1) ‘is not consented to or encouraged by the employer,’ 2) is ‘of no benefit to the employer,’ 3) is ‘not within the scope of the employee’s duties,’ and 4) ‘the employer has no knowledge of the vicious propensities of the animal.’ Poling v. Peter R. Rylance, Inc., 388 So.2d 353 (Fla. 4th DCA 1980); see Dickson v. Graham-Jones Paper Co., 84 So.2d 309 (Fla.1955).

Roberts, 914 So.2d at 1109. In applying these factors, the court concluded that despite knowledge of the dog’s presence, the remaining factors weighed in favor of the employer. Bringing a dog to the site was not within the scope of the employee’s duties, employer did not allow it to receive a benefit, and the employer had no knowledge of the animal’s vicious propensities.

In Poling v. Peter R. Rylance, Inc., 388 So.2d 353 (Fla. 4th DCA 1980), an employee’s dog attacked the plaintiff on the property. There, we recognized that “knowledge of such keeping AND knowledge of the viciousness of such animal are both necessary elements to be alleged in order to hold a corporation for the acts of its agents, servants, or employees.” Id. at 353.

Here, in addition to the injury occurring off premises, landowner liability is even further removed as there is no evidence that King was vicious or was even acting in a vicious manner. We also note that this accident could just as easily have occurred if King had been on a leash.

Therefore, concluding that the trial court properly entered summary judgment in favor of the property owner, we affirm.

STEVENSON and TAYLOR, JJ., concur.


author: PER CURIAM.

text:
    Frank TORRES, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D07-5232.
    District Court of Appeal of Florida, First District.
    March 13, 2008.
    Frank Torres, pro se, Appellant.
    Bill McCollum, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee; Kathleen Von Hoene, General Counsel, Florida Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 1, 2007, the Court has determined that the notice of appeal was not timely filed. C.f. Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999); Dominguez v. Barakat, 609 So.2d 664 (Fla. 3rd DCA 1992). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Robert J. HANCOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0694.
    District Court of Appeal of Florida, First District.
    March 14, 2008.
    Robert J. Hancock, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: HAWKES, J.

text:
    Zander Lewis KELLY, Former Husband, Appellant, v. Clara A. COLSTON, Former Wife, Appellee.
    No. 1D07-3594.
    District Court of Appeal of Florida, First District.
    March 18, 2008.

      Suzanne Brownless, Tallahassee, for Appellant.
    Ruth Stone, Supervising Attorney, and Daniel Blundy, Certified Legal Intern, FSU College of Law Public Interest Law Center, Tallahassee, for Appellee.
   HAWKES, J.

The parties lived together and, several years after the birth of their only child, married. Less than a month later, the wife, pro se, filed for dissolution of marriage. Almost a year later, a hearing was held before a general magistrate. Ten days after the magistrate filed a report, the wife filed a notice of voluntary dismissal. Twenty days after the voluntary dismissal, the circuit judge entered a final judgment of dissolution of marriage. Approximately one year later, believing the dissolution to be valid, the husband filed a petition to modify the final judgment’s terms of custody and visitation. The circuit court held a hearing on the husband’s petition and issued its order denying modification of custody, but granting modification of visitation. From this order, the husband appealed.

The issue -we must consider is whether the circuit court had jurisdiction to enter the final judgment of dissolution, or any other order, after the wife filed her dismissal. This answer depends on whether the magistrate holding a hearing or filing a report with recommended findings of fact and conclusions of law, constitutes “submission ... to the court for decision” under Florida Rule of Civil Procedure 1.420. We conclude neither activity by the magistrate constitutes submission. Consequently, the circuit court lacked jurisdiction.

Effect Of Voluntary Dismissal On Jurisdiction

Under the Family Rules of Procedure, a voluntary dismissal of a petition for dissolution is governed by Florida Rule of Civil Procedure 1.420. See Fla. R. Fam. P. 12.420. This rule, which allows a petitioner to dismiss a petition, states in part, “an action may be dismissed by plaintiff without order of court ... before submission of a nonjury case to the court for decision ....” Fla. R. Civ. P. Rule 1.420 (emphasis added); see also Tobkin v. State, 777 So.2d 1160, 1163 (Fla. 4th DCA 2001). The petitioner has a nearly abso lute right to voluntarily dismiss. See Fears v. Lunsford, 314 So.2d 578 (Fla.1975). Fears involved a situation where a petitioner’s voluntary dismissal was affirmed even though the trial court had orally announced, outside of the jury’s hearing, that it would direct a verdict in favor of the defendant. Id.

The effect of a voluntary dismissal prior to submission is immediate, final, and irreversible. It terminates the litigation and instantaneously divests the court of its jurisdiction to enter further orders. See Randle-E. Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978). This is equally true when the dismissal is taken in a dissolution action. See Hayden v. Hayden, 373 So.2d 436, 438 (Fla. 3d DCA 1979) (holding a dissolution action may be dismissed without leave of the court and, once taken, the court loses jurisdiction and power to exercise discretion or adjudicate the action in any way). A dismissal is effective, even though the best interests of the minor children might be affected. See Nathanson v. Nathanson, 693 So.2d 1061, 1062 (Fla. 4th DCA 1997). Consequently, if the petitioner, files a voluntary dismissal before “submission” occurs, any further orders are null and void.

Here, the wife argues the court retained jurisdiction to enter the final judgment because submission occurred when the magistrate took testimony and evidence, or alternatively, submission occurred when the magistrate filed her report. This argument is without merit.

Activity By A Magistrate Is Not Submission

Neither a hearing before the magistrate nor the filing of a magistrate’s report constitutes submission. Family law general magistrates, hearings, and reports are governed under Florida Rule of Family Procedure 12.490, which states in part:

(c) ... Every general magistrate shall perform all the duties that pertain to the office according to the practice of chan-eery and rules of court and under the direction of the .court .... shall be empowered to administer oaths and conduct hearings .... [;] (e) ... The general magistrate shall file a report that includes findings of fact and conclusions of law, together with recommendations. ... [; and](f) ... The general magistrate shall file the report and recommendations and serve copies on all parties. The parties may serve exceptions to the report within 10 days from the time it is served on them.... If no exceptions are filed within that period, the court shall take appropriate action on the report. ...

(emphasis added).

After a magistrate holds a hearing and files a report, the circuit court has the duty to review the entire case file, examine the evidence presented to the magistrate, and determine whether the magistrate’s findings of fact and conclusions of law are justified. See DeClements v. DeClements, 662 So.2d 1276, 1282 (Fla. 3d DCA 1995). A hearing by the magistrate or filing of the magistrate’s report cannot constitute submission to the court for a decision when these remaining duties must be fulfilled by the circuit court before entering any order. Here, the court had not started its review prior to the wife’s filing of the notice of dismissal.

Conclusion

Because the case was not submitted to the court for decision prior to the fifing of the voluntary dismissal, the circuit court was divested of jurisdiction. Since the court lacked jurisdiction to enter its dissolution order, it lacked jurisdiction to enter all related subsequent orders. Thus, the final order dissolving the parties’ marriage, and all subsequent orders based upon it, were void ah initio. See Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1386-87 (Fla. 1st DCA 1992) (holding a judgment is void if the court lacked jurisdiction to enter it, and if void, the judgment must be vacated); Wells v. State, 495 So.2d 1221, 1222 (Fla. 1st DCA 1986) (holding subsequent orders based on a void order were void).

The appeal is hereby DISMISSED, and the January 25, 2005, dissolution order and all other orders subsequent to the voluntary dismissal are VACATED.

POLSTON and THOMAS, JJ., concur.

      . Incidentally, the court's order modifying visitation failed to find the required substantial or material change in circumstances. See Krohn v. Foster, 856 So.2d 1130, 1131 (Fla. 1st DCA 2003); Henderson v. Henderson, 905 So.2d 901, 905 (Fla. 2d DCA 2005); Knipe v. Knipe, 840 So.2d 335 (Fla. 4th DCA 2003).

      . Rule 12.490(f) also permits the parties to file exceptions. At a minimum, submission requires the close of all proceedings and all opportunities for the parties to make argument, which must include the authorized period in which to file exceptions.

      . As the laws of Florida do not recognize common law marriage because parties erroneously believe they are married, see § 741.211, Fla. Stat. (2005), and Anderson v. Anderson, 577 So.2d 658, 660 (Fla. 1st DCA 1991), likewise, the laws of Florida are unable to recognize a common law divorce even though the parties may believe they are divorced or hold themselves out as being divorced.


text:
    Davis E. McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0245.
    District Court of Appeal of Florida, First District.
    March 18, 2008.

      Davis E. McClendon, pro se, Appellant.
    Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his motion alleging ineffective assistance of counsel filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not refute the appellant’s claim that his trial counsel was ineffective for failing to object to victim injury points, we reverse. All other issues are affirmed without further discussion.

Following a jury trial, the appellant was convicted of attempted first-degree murder and sentenced to 20 years’ imprisonment, to be followed by two years’ community control and eight years’ probation. This Court affirmed his judgment and sentence. McClendon v. State, 895 So.2d 410 (Fla. 1st DCA 2005) (unpublished table decision).

In the instant rule 3.850 motion, the appellant alleged that his counsel was ineffective for failing to object to the inclusion of 40 points for severe victim injury because the victim’s injuries were not severe. A claim of ineffective assistance of counsel for the failure to object to score-sheet errors at sentencing is cognizable in a rule 3.850 motion. See Sommers v. State, 796 So.2d 608, 610 (Fla. 2d DCA 2001). A defendant is entitled to relief if counsel failed to object to an error of which counsel knew or should have known and the inclusion of the points affected the sentence. See Richie v. State, 777 So.2d 977 (Fla. 2d DCA 1999). The trial court denied the appellant’s claim on the ground that the same sentence “could-have-been-imposed” without the scoring of the severe victim injury points. However, in motions alleging scoresheet error brought pursuant to rule 3.850, the correct standard is the “would-have-been imposed” test. See State v. Anderson, 905 So.2d 111 (Fla.2005).

There is nothing in the record indicating that the trial court would have imposed the same sentence if severe injury points had not been scored. Further, nothing in the record refutes the appellant’s claim that the scoring of the points was improper. Thus, the record does not refute the appellant’s claim that his trial counsel was ineffective for failing to object to victim injury points.

We, therefore, reverse the summary denial of the appellant’s claim alleging ineffective assistance of counsel regarding the failure to object to victim injury points and remand for the trial court to either attach record portions conclusively refuting the appellant’s claim or for an evidentiary hearing. All other issues are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

BENTON, LEWIS, and ROBERTS, JJ., concur.


text:
    Felecia SUELTER, Appellant, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 1D07-4929.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    Neil L. Henrichsen and Heather M. Collins, Jacksonville, Florida, for Appellant.
    Elizabeth R. Stevens, for Appellee.
   PER CURIAM.

The appellant filed this appeal on September 24, 2007, seeking review of an administrative order dismissing her petition, which had been entered and filed with the agency on August 14, 2007. This administrative order brought an end to the administrative adjudicative process and is a final agency order. Hill v. Div. Of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). However, because the appeal was not filed within 30 days of the date the order was rendered, the notice of appeal did not timely invoke this Court’s jurisdiction.

The appellant argues that rendition of the order on appeal was delayed by her “Motion for Reconsideration and to Set Aside Order on Respondent’s Motion for Dismissal,” which had been served on August 17, 2007. However, the Agency has not promulgated a rule authorizing motions that delay rendition of its orders and has chosen instead to prohibit the use of such motions. See Fla. Admin. Code R. 60R-1.006R3), (4). Cf Fla. Admin. Code R. 25-22.060 (authorizing motions for reconsideration in proceedings before the Public Service Commission). The appellant’s assertion that the Agency has inherent authority to consider her motion does not transform the motion into a motion that delays rendition. See City of Palm Bay v. Palm Bay Greens, LLC, 969 So.2d 1187 (Fla. 5th DCA 2007) (rejecting argument that administrative agency’s inherent authority to reconsider its orders transforms an unauthorized motion for rehearing into a motion that delays rendition). We reject the appellant’s argument that equitable tolling applies without further comment.

Accordingly, this Court lacks jurisdiction to consider the merits of this appeal.

DISMISSED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    James GANEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4868.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    James Ganey, pro se, Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the postconviction court’s order summarily denying his motion alleging ineffective assistance of counsel filed pursuant to Florida Rule of Criminal Procedure 3.850. The postcon-viction court’s order indicated that rule 3.850 motions do not apply to probation revocation proceedings and there is no claim for ineffective assistance of counsel arising out of probation proceedings. This proposition is incorrect. Contrary to the findings of the postconviction court, there are numerous examples of appellate cases applying rule 3.850 to probation revocation hearings. See e.g. Flowers v. State, 947 So.2d 639 (Fla. 4th DCA 2007); Hollander v. State, 920 So.2d 204, (Fla. 4th DCA 2006); Gilbert v. State, 913 So.2d 84, 85 (Fla. 2d DCA 2005); Phelps v. State, 911 So.2d 186 (Fla. 1st DCA 2005); Mikell v. State, 903 So.2d 1054, 1054 (Fla. 2d DCA 2005); Medrano v. State, 892 So.2d 508 (Fla. 3d DCA 2004).

Nevertheless, the appellant’s claims are without merit. Therefore, we affirm without further discussion. See Kennard v. State, 903 So.2d 244, 245-46 (Fla. 1st DCA 2005) (providing an appellate court may affirm a trial court’s judgment if the judgment is legally correct, regardless of the trial court’s reasoning).

AFFIRMED.

BENTON, LEWIS, and ROBERTS, JJ., concur.


text:
    Demetrice D. WALLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4348.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    Demetrice D. Waller, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 1, 2006, in Leon County Circuit Court case number 2005-CF-003322A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

PETITION GRANTED.

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Dominic GAINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4144.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    James T. Miller, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on August 25, 2005, in Leon County Circuit Court case number 2004-CF-001015A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

PETITION GRANTED.

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Major Battle MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-179.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2008.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 771 So.2d 1189 (Fla. 5th DCA 2000).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Robert L. KINCHEN, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and Florida Parole Commission, Appellee.
    No. 1D07-3678.
    District Court of Appeal of Florida, First District.
    March 19, 2008.
    Robert L. Kinchen, pro se, Appellant.
    Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Lincoln v. Florida Parole Comm’n, 643 So.2d 668 (Fla. 1st DCA 1994).

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


author: SHAHOOD, C.J.

text:
    Keith SIROTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1025.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

Appellant, Keith Sirota, was found guilty following a jury trial of one count of soliciting a child under sixteen years of age via the internet, and three counts of transmission of material harmful to a minor. He raises six issues on appeal all of which we find to be without merit and affirm without discussion.

The judgment entered in this case contains a scrivener’s error showing that appellant entered a plea of guilty. In actuality, appellant entered a plea of not guilty and was convicted following a jury trial. We remand for correction of the scrivener’s error. See Newson v. State, 867 So.2d 603 (Fla. 2d DCA 2004). Appellant need not be present for this correction.

Affirmed; Remanded for Correction of Scrivener’s Error.

POLEN and MAY, JJ., concur.


text:
    Henry RIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-440.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Rehearing Denied April 21, 2008.
    Henry Riggins, Perry, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court struck Riggins’ rule 3.800(a) motion as moot, reasoning that he had already served the challenged ten-year habitual felony offender (HFO) sentence, which was imposed in 1991. It is not at all clear that the motion was moot; Riggins stated in his motion that the challenged sentence was imposed consecutive to a twenty-year HFO sentence imposed in another case. Prior related cases in this court reflect that the twenty-year sentence was imposed earlier in 1991 for an unrelated 1990 case.

Nevertheless, we affirm because some of the grounds could have been dismissed as successive, in that they were raised in prior unsuccessful motions, and none of the grounds is cognizable in a rule 3.800(a) motion. Thus, the grounds that could not be dismissed as successive should have been denied. See Thompson v. State, 945 So.2d 627 (Fla. 4th DCA 2006) (affirming dismissal, where trial court, instead, should have denied the rule 3.800(a) motion); Sweeney v. State, 944 So.2d 474 (Fla. 4th DCA 2006) (same).

Affirmed.

STONE, POLEN and GROSS, JJ., concur.


author: MAY, J.

text:
    Robert BETTERMAN, Appellant, v. Teresa KUKELHAN, Appellee.
    No. 4D07-3173.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    David A. Homes, Fort Lauderdale, for appellant.
    No appellee brief filed.
   MAY, J.

A former boyfriend appeals an order denying his motion to vacate an injunction for protection against domestic violence. He argues the trial court erred in denying his motion without a hearing and an opportunity to be heard. We agree and reverse.

A former girlfriend filed the petition for an injunction against the former boyfriend. Judge Dijols denied a temporary injunction. The former boyfriend then submitted a general denial of the allegations and the matter was set for hearing.

Judge Goldenberg presided at the final hearing where an “Agreed Final Judgment of Injunction For Protection Against Domestic Violence” was entered for an indefinite period of time. The order specifically stated that the former boyfriend denied the allegations, but did not object to the issuance of the injunction. The court made no factual findings.

Approximately a month later, the former boyfriend filed a verified petition to dissolve the injunction with a cover letter to Judge Dijols. He continued to deny the allegations and explained that, at the time of the hearing, he thought it was easier to simply agree to the injunction. He did not realize, however, that he would be required to surrender his concealed weapons permit. He requested the court either dissolve the injunction or allow him to retain the permit. Judge Dijols denied the motion without a hearing.

The former boyfriend’s lawyer then filed another motion with Judge Goldenberg, who had actually entered the final judgment, with a letter explaining that Judge Dijols may have denied the original motion simply because he had not been the one to enter the final judgment. This motion requested the same relief and alternatively asked for an evidentiary hearing. Judge Goldenberg’s judicial assistant returned the letter and motion with a memorandum explaining that the original motion had been denied by Judge Dijols.

Here, the former boyfriend argues that section 741.30(6)(c), Florida Statutes (2007), provides for a motion to modify or dissolve an injunction at any time. He argues that Florida case law supports his position that the summary denial of a motion to vacate violates due process requirements. See Reed v. Reed, 816 So.2d 1246 (Fla. 5th DCA 2002); Madan v. Madan, 729 So.2d 416 (Fla. 3d DCA 1999). We agree.

In Reed, the Fifth District reversed a summary denial of a motion to vacate an injunction three days after the motion had been filed. The court stated that the “short period did not allow ... enough time for ... a hearing on the matter.” 816 So.2d at 1247. In Madan, the Third District reversed a trial court’s summary denial of a motion to set aside a domestic violence injunction. Relying on section 741.30(6)(b), the court held that the “trial court should have allowed the [movant] to present evidence regarding the initial procurement of the injunction.” 729 So.2d at 416.

Based on these authorities and the particular facts of this case, we reverse the order denying the motion to dissolve the injunction and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

STONE and POLEN, JJ., concur.


text:
    N.E., Father of A.E. and L.E., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D08-124.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2008.
    Shari J. Wilson, of Shari J. Wilson, P.A., Melbourne, for Appellant.
    Kelly A. Swartz, Rockledge, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Alfred Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0464.
    District Court of Appeal of Florida, First District.
    March 20, 2008.

      Alfred Lee Williams, pro se, Appellant.
    Bill McCollum, Attorney General, Anne C. Conley, Assistant Attorney General, and Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Razz v. State, 828 So.2d 433 (Fla. 1st DCA 2002).

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Derrick SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 07-6328.
    District Court of Appeal of Florida, First District.
    March 20, 2008.
    Derrick Sharpe, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Adams v. State, 734 So.2d 1086 (Fla. 1st DCA 1999).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    Patrick J. SPERBER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-185.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2008.
    Patrick J. Sperber, Avon Park, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Webber v. State, 662 So.2d 1287 (Fla. 5th DCA 1995).

GRIFFIN, TORPY and COHEN, JJ., concur.


text:
    David GUSTIN, Appellant, v. NEW RIVER CORRECTIONAL INSTITUTE and Division Of Risk Management, Appellees.
    No. 1D08-0496.
    District Court of Appeal of Florida, First District.
    March 24, 2008.

      Howard G. Butler of Ossi, Butler, Na-jem & Rosario, Jacksonville; Bill McCabe of Shepherd, McCabe & Cooley, Long-wood, for Appellant.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, GA, for Appellees.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.180(b)(2).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    Jimmy NEWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0801.
    District Court of Appeal of Florida, First District.
    March 24, 2008.
    Jimmy Newell, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Logan v. State, 846 So.2d 472 (Fla.2003).

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: EVANDER, J.

text:
    J.S., Father of K.S., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D07-3892.
    District Court of Appeal of Florida, Fifth District.
    March 24, 2008.

      Shannon L. Reynolds, Ocala, for Appellant.
    Susan W. Fox, of Fox & Loquasto, P.A., Tampa, and Joyce M. Miller, Chief Legal Counsel, Department of Children & Families, Wildwood, for Appellee Department of Children and Families.
    Annette M. Lizardo, Guardian Litem Program, Orlando, for GAL Program.
   EVANDER, J.

J.S., the father, appeals from a dependency order finding him to be an offending parent. We reverse.

In May, 2007, then 21-month-old K.S. was removed from his mother by DCF and placed with relatives. Shortly thereafter, DCF filed a dependency petition which included allegations solely as to K.S.’ mother. The mother consented to the allegations and K.S. was adjudicated dependent on July 24, 2007. The day prior, DCF filed a supplemental dependency petition, alleging that the father had abused, abandoned, or neglected K.S., or had placed the child at substantial risk of imminent abuse, abandonment, or neglect. Specifically, the supplemental petition alleged that the father had (1) abandoned the child, (2) engaged in domestic violence with the mother in the presence of the child which could have resulted in injury to the child, and (3) had failed to appropriately supervise the child.

The father denied the allegations and the case proceeded to an adjudicatory hearing. At the conclusion of the hearing, the trial court found that DCF had failed to prove the allegations of abandonment and negligent supervision, but had proved the allegations of domestic violence. The court subsequently entered a written order, finding the father to be an offending parent because:

The ... father and mother have engaged in violent behavior/domestic violence for some time in the presence of the child, and which could have resulted in injury to the child, specifically an incident of domestic violence in which the child was taken from the mother’s arms.

It is from this order that the father appeals.

We find that the trial court’s conclusion was not supported by substantial competent evidence. The evidence, taken in the light most favorable to DCF, reflects that the father and mother ceased living together in March, 2006, when the child was seven months old. The parties were separated over sixteen months prior to the filing of the supplemental petition. There was no evidence that would suggest that the parties intend to live with each other again. (Indeed, it appears that the father married a different woman subsequent to his breakup with K.S.’ mother.) During the period that K.S.’ parents lived together, loud verbal arguments were apparently a regular occurrence. There was only one incident in which the mother testified that the father physically abused her. This incident occurred when the child was only a few weeks old. The mother testified that she “raised her hand” to the father during an argument. The father twisted her arm, took the child from the mother’s other arm, and left the residence with the child. The other incident, which DCF contends is significant, occurred when the child was seven months old. After an argument with the father, the mother took the child and got into her car. By her own admission, she “sped off’ and “spun [her] tires.” According to the mother, the father followed her in a separate car and made unspecified threats to her during the parties’ ensuing cell phone conversation. The father provided the only specifics regarding the contents of the cell phone conversation. He testified that he told K.S.’ mother that “she needed to slow down with my son in the car.” He also stated that after the piother threatened to damage his two cars, he responded “if you mess with my cars, I’m going to mess with your face.”

The acrimonious relationship between these now-separated parents was insufficient, by itself, to warrant an adjudication of dependency. W.T. v. Dep’t of Children and Families, 787 So.2d 184 (Fla. 5th DCA 2001). Furthermore, there was no evidence that the child was affected by the two alleged incidents of domestic violence. To the extent that the child was placed at risk of harm during either of these incidents, it appears that such risk was caused primarily by the mother. In the first incident, she raised her arm- at the father while holding the child because he wanted to temporarily have the child. In the second incident, she drove in an arguably dangerous manner while the child was in her car.

The evidence was simply insufficient to support a finding that the father was an offending parent. C.W. v. Dep’t of Children and Families, 789 So.2d 497 (Fla. 5th DCA 2001).

REVERSED.

PLEUS and ORFINGER, JJ„ concur.


text:
    S.E.G. and K.M.C., Parents of S.E.G., etc., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D07-567.
    District Court of Appeal of Florida, Fifth District.
    March 24, 2008.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant Mother, K.M.C.
    Timothy A. Straus of Moyer, Straus & Patel, P.A., Altamonte Springs, for Appellant Father, S.E.G.
    Kelly A. Swartz, Orlando, for Appellee.
    Christi R. Adams and John R. Hamilton of Foley & Lardner LLP, Orlando, Guardian Ad Litem.
   PER CURIAM.

In this parental termination case, Appellants, the child’s mother and father, assert numerous points on appeal, only one of which merits discussion: whether Appel-lee’s failure to prove which parent injured the child precludes the termination of either parent’s parental rights. We answer the question in the negative and affirm.

At the time the four-month-old child was removed from Appellants’ care, almost all of the child’s ribs were fractured, he had a fractured leg, a fractured arm, and a he-matoma on his head. Medical evidence proved that the injuries resulted from multiple episodes of abuse. Appellants, who were the child’s sole caretakers at all relevant times, had no credible explanation for the child’s injuries. For example, they suggested that the wrist fracture had been inflicted during a hospital visit when nurses inserted an I.V. into the child’s arm. As to the hematoma, according to the mother, the child simply awoke one morning with a bump on his head that had not been there the night before. Neither parent could explain how the child incurred the rib fractures. Evidence was adduced that the child exhibited frequent bruising and manifestations of pain, such as irritability, fussiness and difficulty sleeping.

Under these facts, we agree that the trial court could terminate the parental rights of both parents, even though Appel-lee failed to prove which parent had actually, caused the injuries. In re K.A., 880 So.2d 705, 708 (Fla. 2d DCA 2004).

AFFIRMED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Robert E. CHASE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5338.
    District Court of Appeal of Florida, First District.
    March 25, 2008.

      Robert E. Chase, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order summarily denying his motion for postconviction relief. We affirm the order in all respects except for the summary denial of appellant’s claim that the probationary split sentence imposed after the revocation of appellant’s probation for neglect" of an elderly person was illegal because the trial court failed to give credit for the time appellant previously served on community control. On that claim, we reverse and remand for further proceedings.

Following appellant’s plea of nolo con-tendere to neglect of an elderly person, the trial court withheld adjudication of guilt and placed appellant on community control for one year followed by one year of probation. The court subsequently revoked appellant’s probation, adjudicated appellant guilty, and sentenced appellant to 10 years in prison followed by five years of probation. Appellant then filed a motion for postconviction relief which, among other things, claimed that his 15-year probationary split sentence for neglect of an elderly person exceeded the 15-year statutory maximum because he was not given credit for the time he previously served on community control. The trial court summarily denied appellant’s motion. Specifically,the court found that appellant’s sentence did not exceed the statutory maximum because appellant forfeited the time he previously served on community control when he violated the terms of his release. This appeal follows.

In concluding that appellant was not entitled, to. credit for the time he previously served on community control, the trial court relied on section 948.06, Florida Statutes (1997), .which provides in pertinent part: i

(3) When the court imposes a subsequent term of supervision following a revocation of probation or community control, it shall not provide credit for time served while on probation or community control toward any subsequent term of probation or community control. However, the court may not impose a subsequent term of probation or community contrbl which, when combined with any amount of time served on preceding terms of probation or community control for offenses before the court for sentencing, would exceed the maximum penalty allowable as provided by s. 775.082. No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he or she shall be sentenced to serve.

The trial court’s reliance on this provision was misplaced because the court overlooked the second crucial sentence. Upon revocation of probation following completion of community control, the court must credit time served on probation and community control to any newly imposed term of imprisonment and probation so that the total period of community control, probation, and imprisonment served and to be served does not exceed the statutory maximum for the offense. Waters v. State, 662 So.2d 332 (Fla.1995). Accord Robinson v. State, 850 So.2d 658, 661 (Fla. 1st DCA 2003). Following the revocation of his probation, appellant was sentenced to 10 years in prison followed by five years of probation for neglect of an elderly person, the statutory maximum for the offense which is a second-degree felony. §§ 775.082(3)(e) & 825.102(3)(b), Fla. Stat. (1997). By not giving credit for the time appellant served on community control and probation prior to the revocation of his probation, the trial court illegally sentenced appellant to a term of incarceration, community control, and probation which exceeded the statutory maximum. Accordingly, we remand with directions that appellant be given proper credit for the time that he previously served on community control and probation. In all other respects, we affirm the summary denial of appellant’s postconviction motion.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


text:
    Jerome NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3855.
    District Court of Appeal of Florida, First District.
    March 25, 2008.

      Jerome Nelson, pro se, Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant appeals the summary denial of the eleven ineffective assistance of counsel claims which he raised in his Florida Rule of Criminal Procedure 3.850 motion for postconvietion relief. We affirm in part and reverse in part and remand.

Appellant timely filed a rule 3.850 motion, alleging eleven ineffective assistance of counsel claims. The trial court summarily denied each of the claims. We affirm the summary denial of nine of the claims without further comment and reverse on the remaining two claims.

Claim 4 is reversed because the attached portion of the record does not conclusively refute this sufficiently pled claim. On remand, the trial court is instructed to attach portions of the record conclusively refuting this claim or conduct an evidentiary hearing. See Williams v. State, 947 So.2d 1191 (Fla. 1st DCA 2007).

Claim 7, which was summarily denied as facially insufficient, is reversed and remanded to the trial court with instructions to offer Appellant leave to amend the insufficient claim if the deficiency can be cured. See Spera v. State, 971 So.2d 754 (Fla.2007).

The procedure articulated in Spera allows a defendant an opportunity to amend facially insufficient postconviction claims unless the claims cannot-be corrected. See id. at 755, 761; see also Prevost v. State, 972 So.2d 274 (Fla. 1st DCA 2008) (holding that Spera allows the defendant one opportunity to cure the deficient claims within 30 days, and if no amendment is filed within the allowed time, claims may be denied with prejudice). Spera’s procedure applies uniformly to all insufficiently pled postconviction claims whether determined to be legally or facially insufficient. Spera, 971 So.2d at 761. The trial court has discretion in determining the length of the defendant’s leave to amend and Spera suggested thirty days would be reasonable. Id. Although a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera does not mandate repeated opportunities. Furthermore, Spera does not impose on trial courts or court personnel the nearly impossible burden to provide legal guidance or “suggestions” to help the defendant file sufficient “good faith” claims or explain why the claims are insufficient or how to cure the insufficiency. However, when provided an opportunity to amend, the defendant may only amend defective pleadings if it can be done in good faith. Spera, 971 So.2d at 762.

Finally, based upon Spera and Nelson v. State, 875 So.2d 579, 584 (Fla.2004), once the window of opportunity to amend expires and the defendant is unable or unwilling to cure the deficiency, the insufficient claim may be denied with prejudice.

The trial court, upon receipt of a rule 3.850 motion, but prior to ruling on the merits of the entire motion, should review the motion to determine whether any claims are facially or legally insufficient. If any claims are insufficient, the trial court should strike the motion with leave to amend the insufficient claims unless the deficiencies cannot be cured. Should the defendant decline to amend, the defendant may move the trial court to enter a final order of disposition on the motion.

In this case, Appellant’s claim 7 alleged that his trial counsel was ineffective for failing to investigate whether other potential suspects mentioned by some of the witnesses might have had gold teeth or might have driven the alleged getaway car and exculpated Appellant. To raise a sufficient claim under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Appellant must state the relevant facts, and allege how or why counsel was deficient in his performance and how or why the deficiency prejudiced the outcome of the proceeding. See Spera, 971 So.2d at 757-58. We agree with the trial court that this claim was insufficiently pled. Since Appellant failed to plead a facially sufficient claim under Strickland and since it is unclear whether the trial court allowed Appellant leave to amend this insufficient claim, we reverse and remand with instructions to provide Appellant his leave to amend, or, if the trial court has provided Appellant leave to amend, then to attach a copy of the order showing leave was granted and the time to amend had expired.

AFFIRMED in part; REVERSED in part and REMANDED with instructions consistent with this opinion.

BARFIELD and WOLF, JJ., concur.


text:
    Benjamin KOLLMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1852.
    District Court of Appeal of Florida, First District.
    March 25, 2008.

      Eric A. Latinsky, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Benjamin Kollmer appeals the trial court’s two orders of February 22, 2007, denying his motion to suppress the victim’s identification of him, and motion to dismiss. We affirm the trial court’s order denying the motion to- dismiss without further comment. However, we agree with appellant that the officers exceeded the scope of a lawful investigatory stop in this case. Therefore, we reverse the order denying appellant’s motion to suppress.

I. Facts

The relevant facts are largely undisputed. The State of Florida filed an information in the Fourth Judicial Circuit Court for Duval County, charging appellant with burglary of a conveyance. The State alleged that on June 3, 2006, appellant broke into a car owned by the victim Brian Thomas Paris, with the intent to commit theft therein.

Appellant filed a motion to suppress Mr. Paris’ identification of him as the individual who broke into his car. Appellant asserted he was illegally stopped, detained, and ultimately transported back to the scene of the burglaries for a “show-up” identification, in violation of his constitutional rights. At the hearing on the motion, the parties agreed to rely on the deposition testimony of three Jacksonville Sheriffs Officers, rather than present live witnesses. First, Officer Newman testified by deposition that on the evening of June 3, 2006, he was working in Jacksonville when he received a call from the dispatcher reporting a car robbery in progress in his area. Officer Newman stated that when he arrived at the scene, he overheard an unidentified young woman tell another officer “something about we had just drove past the person that they suspected that was breaking into the vehicles.” He testified he saw a white male fleeing into a wooded area; he could not describe the man’s height, weight, hair color or clothing.

Next, Officer Propper, a canine handler for the canine unit of the Jacksonville Sheriffs Office, testified by deposition that he was called to the scene of the car burglaries, and was informed the suspect fled into the woods. Officer Propper deployed his dog, Chico, to track the suspect. Chico located a portable CD player and a black container on the path in the woods. The dog tracked the scent from those items to a yard, and discovered a man lying on his back on the ground. The man made some movement away from the dog, and Chico responded with “pain compliance,” biting appellant on the stomach.

Finally, Officer Villabroza testified by deposition that he was with Officer Prop-per, and saw the canine Chico apprehend a white male, later identified as appellant, lying on the ground near the fence. Officer Villabroza ordered the man to turn on his stomach and used handcuffs to detain him. The State has stipulated that appellant was handcuffed, placed in the police car, and transported back to the scene of the burglary for the victim, Mr. Paris, to identify.

The trial court summarily denied the motion to suppress. Following the court’s order, appellant entered a plea of guilty, but expressly reserved the right to appeal his motion to suppress. He was sentenced to a term of nine months’ community control, followed by one year probation.

II. Analysis

Appellant asserts the trial court erred in denying his motion to suppress the identification because the State failed to show that his detention, his transport for a “show-up,” and his identification pursuant to the “show-up,” were lawfully conducted. We agree with appellant to the extent he argues the officers exceeded the scope of a lawful investigatory stop, and we reverse the trial court’s order on the motion.

The United States Supreme Court, followed by the Florida Supreme Court, has identified three levels of police-citizen encounters. Those categories are as follows:

The fir^t level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
•... [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed.

Popple v. State, 626 So.2d 185, 186 (Fla.1993) (internal citations omitted).

Thus, to detain an individual for an investigatory stop the State need only demonstrate that police officers had a reasonable suspicion that the individual was involved in the commission of a crime. See § 901.151(2), Fla Stat. (2006). In U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court reaffirmed that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” As noted above, the investigatory stop must be based on something more than a bare suspicion of criminal activity. See Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989). Rather, “based on the totality of the circumstances, the officer must articulate in particular and objective terms his reasonable suspicion of criminal activity.” Id.

In this case, the officers reasonably suspected appellant was the individual who committed the burglaries, sufficient to justify the investigatory stop. Although the officers had only a vague description of the suspect, their suspicion of appellant is nonetheless supported by-the facts. Appellant was discovered near the scene of the burglaries, in a wooded area which more than likely was deserted given the late hour. Moreover, Officer Propper testified his dog Chico identified appellant’s scent from the items he discovered in the woods, and tracked the scent to appellant. Based on the totality of the circumstances, the officers were justified in detaining appellant in order to question him or investigate his role in the burglaries.

However, while we agree that the officers articulated a reasonable suspicion that appellant was involved in the burglaries, and were therefore authorized to conduct an investigatory stop, we hold that the officers exceeded the scope of a lawful investigatory stop in this case. Regarding investigatory stops, Florida Statutes, section 901.151, provides, “[n]o person shall be temporarily detained ... longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate■ vicinity thereof.'” See § 901.151(3), Fla Stat. (2006) (emphasis added). It appears well settled that an investigatory stop may not extend beyond the place of the initial encounter:

Where ... the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest requiring either probable cause or prior judicial authorization.

Saturnino-Boudet v. State, 682 So.2d 188, 193 (Fla. 3d DCA 1996); see also Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (holding that, where there was no probable cause to arrest the petitioner, no consent for the journey to the police station and no prior judicial authorization for detaining him, the investigative detention at the station for fingerprinting purposes violated the petitioner’s rights under the Fourth Amendment); Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (declining to extend Terry v. Ohio, holding “the Rochester police violated the Fourth and Fourteenth Amendments when, [pursuant to a Terry Stop and] without probable cause, they seized petitioner and transported him to the police station for interrogation.”).

In this case, while conducting the otherwise lawful investigatory stop, Officer Vil-labroza handcuffed appellant, placed him in the police car, and transported him away him from the place where he was initially apprehended, presumably for Mr. Paris to identify him. The State does not contend it had probable cause to arrest appellant at that time, nor does it suggest appellant consented to be transported. Accordingly, we hold the officers exceeded the scope of a lawful investigatory stop, in violation of appellant’s Fourth and Fourteenth Amendment Rights. Because we hold that appellant’s transportation to the “show-up” was illegal, we need not address whether his subsequent identification is also unlawful.

Therefore, we reverse the court’s order denying appellant’s motion to suppress the identification, and remand the case with directions to the trial court to vacate appellant’s conviction pursuant to the plea.

REVERSED and REMANDED with directions.

WEBSTER, BENTON, and POLSTON, JJ., concur.

      . Another count for burglary of a conveyance, relating to a different victim on the same date, was charged and later dismissed by the State.. ■


text:
    ESCAMBIA COUNTY, Florida, Appellant, v. U.I.L. FAMILY LIMITED PARTNERSHIP, a Florida limited partnership, and C.C. Family Limited Partnership, a Florida limited partnership, Appellees.
    No. 1D07-1836.
    District Court of Appeal of Florida, First District.
    March 25, 2008.
    Charles V. Peppier, Chief Litigation Attorney, and Janet Lander, County Attorney, Pensacola, for Appellant.
    Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, for Appellees.
   PER CURIAM.

Appellant, Escambia County (“County”), appeals a final order awarding attorney’s fees to Appellees, real estate developers (“Developers”), who prevailed in an action against the County for declaratory and injunctive relief. The Developers filed the action asserting that they were entitled to valid building permits under their contract with the County. The County does not challenge the trial court’s order granting relief to the Developers, but only the subsequent order granting attorney’s fees under section 57.105(5), Florida Statutes (2001). Because we find that the County’s entitlement to fees is reciprocal under the contract, we affirm the trial court’s finding that the Developers are entitled to attorney’s fees for prevailing in their declaratory action.

Section 57.105, Florida Statutes (2001), provides in relevant part:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

(Emphasis added.) This reciprocity is limited to the specific terms of the attorney’s fees provision in a contract. Subway Restaurants, Inc. v. Thomas, 860 So.2d 462, 463 (Fla. 4th DCA 2003) (holding that a tenant was riot entitled to attorney’s fees for lawsuit for wrongful eviction and breach of contract because the attorney’s fees provision of the lease only applied to rent collection actions); Anderson Columbia Co., Inc., v. Fla. Dep’t of Transp., 744 So.2d 1206, 1207 (Fla. 1st DCA 1999) (holding that contractor was not entitled to recover attorney’s fees under reciprocal fee statute where the contract provided for attorney’s fees if the Department sued contractor on the bond and the suit at issue was for breach of contract).

The parties entered into á contract which contains the following attorney’s fees provision: “If County ever has to file a judicial action to enforce any provision of this guarantee, then [Developers] agree to reimburse County for all of its costs, including reasonable attorney’s fees through appeal, if necessary, that it may have incurred in enforcing this guarantee.” By its plain language, this fee provision envisions a lawsuit in which the parties litigate their rights and obligations under the guarantees, which would inevitably result in a judicial construction of the contract language. The declaratory action brought by the Developers differs from the action envisioned in the contract only with respect to who sat on each side of the courtroom.

In its order • granting declaratory and injunctive relief, the trial court found that the County denied building permits as a result of the County’s reliance on the guarantees, which were found to be unenforceable. Based on this finding, the County effectively forced the Developers to seek a judicial clarification of their .right to resolve a legal conflict, after the County acted to the Developers’ detriment, as issuer of permits and regulator of land development. Jakobi v. Kings Creek Vill. Townhouse Ass’n, Inc., 665 So.2d 325, 327 (Fla. 3d DCA 1995) (noting that because homeowners’ association had “arbitrarily refus[ed] to approve owner’s plans where similar structures had been approved before, the Association forced the owner to file suit.”). We find no basis to conclude that the Developers’ lawsuit, even though it sought declaratory and injunctive relief, so differed from the enforcement action envisioned in the guarantees that section 57.105 would not apply to award the Developers reciprocal attorney’s fees.

Therefore, we AFFIRM the trial court’s determination that the Developers are entitled to attorney’s fees. We affirm the amount of fees awarded, which reflects a reasonable exercise of the trial court’s discretion.

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


author: WOLF, J.

text:
    Robert STUBBS, Appellant, v. BOB DALE CONSTRUCTION and Florida Preferred, Appellees.
    No. 1D07-1822.
    District Court of Appeal of Florida, First District.
    March 25, 2008.
    Robert Stubbs, pro se, Appellant.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johanessen & Kempner, L.L.P., Sarasota, for Appellees.
   WOLF, J.

Claimant, Robert Stubbs, challenges a final order of the Judge of Compensation Claims (JCC) denying claimant’s request for an increase in workers’ compensation benefits. The issue before us is whether the JCC erred in denying claimant’s request for an average weekly wage (AWW) increase pursuant to section 440.14(1), Florida Statutes (2006). We find the JCC erred and remand for further consideration consistent with the dictates of this opinion.

Claimant worked for Bob Dale Construction (the employer) as a project superintendent in 2002. In October 2002, the employer retained Administrative Concepts (the carrier) to handle its payroll and provide workers’ compensation coverage. Upon retaining Administrative Concepts, all employees became leased employees of the carrier who continued to lease employees to the employer until November 2006.

On January 12, 2006, claimant suffered a compensable left ankle and foot injury while working on a project for the employer and as a leased employee of the carrier. On March 24, 2006, following the award of benefits, claimant filed a petition for benefits seeking: (1) an increase in his AWW to $840 weekly or the annual amount requested divided by 52 weeks; (2) correct payment of temporary total disability (TTD)/temporary partial disability (TPD) benefits (based on the requested increase of the AWW); and (3) penalties, interest, and costs and attorney’s fees. The JCC denied this request.

Robert Dale, the employer and general contractor, confirmed that claimant worked as a project superintendent and that, as part of his position, he oversaw the construction crew and worked as a liaison between the homeowner and the company. According to Dale, claimant and Dale had not entered into any contract agreements regarding the number of hours claimant would work. Specifically, Dale stated that there was nothing indicating that claimant would necessarily work 40 hours a week.

Dale explained that, due to the fluctuations involved with work in the construction industry, claimant could work only when work was available. He further stated that, in some circumstances, during inclement weather, some holidays, and vacation time, work could not be completed. However, if 40 hours of work were available, claimant would get 40 hours.

Dale reviewed cláimant’s 13-week wage and earning statement preceding his work-related accident and acknowledged that claimant had not worked 40 hours per week every week preceding the injury. Dale testified that this was likely attributable to the ending of a project without there being a new project immediately available for claimant to work on.

Claimant introduced a spreadsheet reflecting the hours he worked in the 52 weeks preceding his injury. The record reflects the hours claimant worked between January 2005 and January 2006. The hours range from a low of 12.5 hours per week to a high of 40 hours per week, for an average of 36 hours weekly; thus, although the hours per week differ, a large portion included consecutive 40-hour work weeks.

The parties stipulated to the accuracy of the February 5, 2007, wage statement, reflecting the hours and earnings for the 13 weeks immediately preceding the date of the accident and that the AWW, if based upon this statement, would be $548.42. The parties further stipulated that claimant worked an average of 26 hours in the 13 weeks preceding his injury.

The standard of review in a workers’ compensation case as to a question of law is de novo. See Mylock v. Champion Int'l, 906 So.2d 363, 365 (Fla. 1st DCA 2005). This case involves the parties’ differing interpretations of section 440.14(1), Florida Statutes (2006), which > delineates how to compute a claimant’s AWW, and provides in pertinent part:

(1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accident’ shall be taken as the basis upon which to compute compensation and shall 'be determined, subject to the limitations of s. 440.12(2), as follows:
(a) If the injured employee has worked in the employment in which she or he was working on the date of the accident, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the accident, her or his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. As used in this paragraph, the term “substantially the whole of 13 weeks” means the calendar period of 13 weeks as a whole, which shall be defined as the 13 calendar weeks before the date of the accident, excluding the week during which the accident occurred. The term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 75 percent of the total customary hours of employment within such period considered as a whole.
(d) If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall bé used, except as otherwise provided in paragraph (e) or paragraph (f).
(f) If it is established that the injured employee was a part-time worker on the date of the accident, that she or he had adopted part-time employment as a customary practice, and that under normal working conditions she or he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at her or his average weekly wages. For the purpose of this paragraph, the term “part-time worker” means an individual who customarily works less than the full-time hours or full-time workweek of a similar employee in the same employment.
(g) If compensation is due for a fractional part of the week, the compensation for such fractional part shall be determined by dividing the weekly compensation rate by the number of days employed per week to compute the amount due for each day.

(Emphasis added).

The E/C asserts that, because claimant had been employed in his position 13 weeks prior to the accident and because claimant had worked 75% of his “customary hours” — i.e., his available hours — in those weeks, the calculation of AWW should be performed based on section 440.14(l)(a). Claimant, on the other hand, asserts that the JCC erroneously determined that he worked 75% of his “customary hours” in the 13 weeks preceding his injury; he did not work 75% of those hours and, thus, subsection 440.14(l)(a) should not have been used to calculate his AWW. Based on this assertion, claimant argues that section 440.14(l)(d) should be used to calculate his AWW, and this would require a calculation based on his full-time weekly wages over a 52-week period.

The resolution of this issue rests on a determination of whether claimant worked at least 75% of his “customary hours” in the 13 weeks preceding his employment. If so, his AWW calculation must be made pursuant to section 440.14(l)(a). The JCC determined that, based on the testimony, claimant worked sporadic periods of time and had no promise of a 40-hour work week; thus, he could not assert his “customary hours” of employment were 40 hours per week. The JCC determined that claimant’s true “customary hours” were his “available hours,” or the hours he actually worked. By doing so, the JCC determined that he had worked 75% of his “available or customary hours,” and thus section 440.14(l)(a) would apply. This conclusion is an incorrect interpretation of the statute and mandates reversal.

While vast discretion is owed the JCC, the JCC’s error was two-fold. First, the JCC erred when it determined that claimant’s available hours of employment defined his “customary hours” and proceeded to apply section 440.14(l)(a) based on that analysis. The plain and ordinary meaning of a statutory term controls, especially where the interpretation of the JCC would conflict with the intent of the Legislature. See Campus Commc’ns, Inc. v. Dep’t of Revenue, 473 So.2d 1290, 1295 (Fla.1985) (holding that the plain meaning of term controls where administrative definition would thwart the intent of the statute).

A plain reading of section 440.14(l)(a) indicates that a claimant employed 13 weeks prior to his or her accident and who worked 75% of his or her customary hours during that period should have his or her AWW calculated based on his or her average wage during that 13 weeks. The JCC acknowledged this in her order but stated that claimant’s customary hours were akin to his available hours during that 13-week period; thus, claimant had worked 75% of his available hours.

This calculation fails to effectively implement the legislative intent of section 440.14(l)(a), because it assigns as “customary hours” the exact amount of hours claimant worked in the 13 weeks prior to his injury. If that interpretation were correct, there would be no need to write an additional segment into section 440.14(l)(a) requiring a JCC to consider whether claimant worked 75% of his- “customary hours.” This section was likely included to specifically cover individuals like claimant — employees who worked varying hours, and whose average hours were significantly more than that which they received in the 13 weeks preceding their accident. The JCC’s reading of this particular section thwarts the legislative intent to protect individuals similar to claimant. On the facts here, it cannot be disputed that claimant worked significantly fewer hours in the 13 weeks prior to his injury than he customarily worked for his employer. It appears the JCC is bending the statutory language to deny claimant’s good faith request for an increase.

Second, the JCC, by applying section 440.14(l)(a), failed to consider other sections of the AWW statute that would more effectively aid in calculating claimant’s proper AWW. Based on the above analysis, once the JCC correctly considers claimant’s “customary hours,” section 440.14(l)(a) will not apply to claimant because it does not appear that in the 13 weeks prior to his injury, he worked 75% of his customary hours. This is not to say that cl&imant’s assertion that he should be considered a 40-hour-a-week employee is correct either; competent substantial evidence supports that claimant was not given a 40-hour per week contract for hire. The truth is that claimant averaged 36 hours weekly during the year preceding his injury. If this 36-hour average were used as claimant’s “customary hours,” claimant would have worked 72% of his “customary hours” in the 13 weeks preceding his injury; thus, section 440.14(l)(a) would not have applied.

Because section 440.14(l)(a) does not apply, the next inquiry becomes which subsection of 440.14(1) should be used to calculate claimant’s AWW. Based on a review of the statute and the record, it appears that either subsection(l)(d) or (l)(f) would apply; however, a JCC needs to determine whether claimant was a full-time or part-time employee to facilitate this determination. Here, claimant worked an average of 36 hours a week in the year preceding his injury. Whether this equates to a full or part-time employment is a question of fact for the JCC. In Mauranssi v. Centerline Utilities Contract Co., 685 So.2d 66, 68 (Fla. 1st DCA 1996), this court noted that:

Section 440.14(l)(d), Florida Statutes (1995), requires that “full-time weekly wages of the injured employee” be the standard for calculating average weekly wages. The decided cases make clear, however, that a “full-time” work week need not be a forty-hour week. For purposes of subsection (l)(d), a “full-time” work week can be fewer than twenty-five hours, Jackson v. Hochadel Roofing Co., 657 So.2d 1266 (Fla. 1st DCA 1995), or as many as forty-five hours per week, Bruck v. Glen Johnson, Inc., 418 So.2d 1209 (Fla. 1st DCA 1982), depending on the injured employ-r ee’s job history or employment contract. Under subsection (l)(d), “full-time weekly wages should be determined prospectively by using either the contract of employment or the claimant’s actual earnings on the job where the claimant is working at the time of the injury.” Efficient Sys., Inc. v. Florida Dep’t of Labor and Employment Sec., 624 So.2d 343, 345 (Fla. 1st DCA 1993). Determinations under subsection (l)(f) are similarly prospective.

Accordingly, on remand, the JCC shall determine which subsection of section 440.14(1) should be applied to claimant’s AWW calculation.

BARFIELD and HAWKES, JJ„ concur.