author: COBB, Judge.

text:
    Rodgrick Cornilius BROOKS v. STATE of Alabama.
    CR-05-0119.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      Rodgrick C. Brooks, pro se.
    Troy King, atty. gen., and Bettie J. Car-mack, asst. atty. gen., for appellee.
   COBB, Judge.

The appellant, Rodgrick Cornilius Brooks, appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 1997 convictions for felony murder and first-degree robbery and his resulting consecutive sentences of 30 years’ imprisonment for the felony-murder conviction and 20 years’ imprisonment for the robbery conviction. - This Court affirmed Brooks’s convictions and sentences on direct appeal in an unpublished memorandum and issued a certificate of judgment on July 8, 1998. See Brooks v. State (CR-97-0540), 738 So.2d 941 (Ala.Crim. App.1998) (table).

Brooks filed the present petition on June 28, 2005, claiming that the trial court was without jurisdiction to render the judgments or to impose the sentences because, he says, his convictions for felony murder and first-degree robbery were based on the same conduct and were, therefore, violative of double-jeopardy principles. Specifically, Brooks argued that the same robbery formed the basis for both convictions. After receiving a response from the State, the circuit court summarily denied Brooks’s petition. This appeal followed.

On appeal, Brooks reargues the claim from his petition. The State avers that the case is due to be remanded to clarify whether Brooks was convicted of murder, as the jury form indicates,, or whether he was convicted of felony murder, as charged in the indictment.

With regard to the State’s concession that the case is due to be remanded to determine whether Brooks was convicted of murder or of felony murder, we agree that a remand is necessary, but for a different reason.

In Tinker v. State, 932 So.2d 168 (Ala.Crim.App.2005), the appellant was indicted for conspiracy to traffic in cocaine. The verdict form erroneously listed the offense as trafficking in cocaine. This Court held that, although the trial court had instructed the jury on the elements of conspiracy, it had also instructed the jury on the elements of trafficking in cocaine. Thus, we concluded, the jury’s intent was unclear, because it was

“conceivable that a layperson on the jury could have easily construed the instructions as requiring the jury to determine whether Tinker was guilty of trafficking in cocaine, especially since the verdict form provided to the jury gave the jury two choices on count 1 — that the jury could find Tinker either guilty or not guilty of ‘trafficking cocaine, as charged in count one of the indictment.’ (C. 183, R. 975.)”

Tinker v. State, 932 So.2d at 177. We further concluded that based on the facts of the case, trafficking in cocaine was not a lesser-included offense of conspiracy to traffic in cocaine. Thus, this Court concluded in Tinker that the appellant had been convicted of an offense for which he had not been indicted, and we remanded the case for the trial court to vacate that conviction and sentence.

However, in Bradford v. State, 948 So.2d 574 (Ala.Crim.App.2006), this Court held that under the facts of that case, the jury’s intent was clear from the record. In Bradford, the indictment charged the appellant with reckless driving; the offense was referred to throughout the trial and in the verdict forms as reckless endangerment, and the jury was instructed on the elements of reckless driving, although the trial court referred to the charge as reckless endangerment. This Court determined that under the facts, it was apparent that the jury’s intent was to find Bradford guilty of reckless driving.

Thus, we look to the facts of this case. The trial court here instructed the jury as follows:

“As stated in this case, this defendant is charged with the offense of felony murder, and this is what the law of Alabama says about felony murder.
“A person commits the crime of murder if he commits robbery in any degree and in the course of the crime or in the furtherance of the crime or in the immediate flight therefrom that he is committing, he or another participant causes the death of another person. Therefore, in order to convict, the State must prove beyond a reasonable doubt the following elements: That the victim in this case is dead, number one; number two, that the defendant or another participant caused the death of the victim by, in this case, shooting him; number' three, that in committing the acts which caused the death of the victim, the defendant or another participant was acting in the course of and in the furtherance of the crime of, in this case, robbery; and that in doing the acts which constituted the commission of the felony, in this case robbery, during the course of which or in the furtherance of which or in the immediate flight therefrom, the death of the victim was caused in this case by either the defendant or another participant.
“A participant in the context of this offense is one who would be legally accountable either as being the one who procured, induced, or caused the act or the one doing the procuring, inducing, or causing of another to commit an offense, or aiding or abetting the commission of the offense, or in failing to make such effort as he was legally required to make to prevent the commission of the offense. I’ll explain to you momentarily ■ the definition of robbery.
“If you find the State has proven each of these elements beyond a reasonable doubt, it would be your duty to find the defendant guilty. If, on the other hand, you find the State has failed to prove any one or more of these elements, it would be your duty to find the defendant not guilty.”

(C. 24-26.) The trial court then instructed the jury on the elements of robbery. Following the instructions on the elements of robbery, the trial court instructed the jury as follows:

“Ladies and gentlemen, these are additional instructions that are also proper statements of the law.
“To return a conviction for murder during the course of a robbery, it is not necessary for you to find the defendant or another participant intentionally killed the victim. If you conclude the victim was shot in order to effectuate or facilitate a robbery of another person, then a murder was committed in the meaning of a felony murder statute.
“The State need not prove the defendant contemplated, intended, or willed . the death of the victim. In a Robbery I case, it is not essential that any property be taken by the defendant from the victim. The value and the amount of any property taken is immaterial. The value and the amount of the property taken in a robbery is immaterial. When two or more persons join in an unlawful enterprise, each is responsible for everything which may .consequently and proximately flow from the unlawful purpose, whether committed by the accused or not and whether specifically intended or not.
“When two or more persons enter into an unlawful purpose with common intent to aid and encourage each other in anything within their common design, each is criminally responsible for everything which may as a consequence subsequently result from such unlawful purpose, whether or not such results were contemplated specifically.
“If you find from the evidence that the defendant fled the scene of the robbery, then you may consider that as evidence as tending to show his consciousness of guilt.
“Immediate flight is defined as a continuous series of events directly precipitated or caused by the defendant’s initial criminal conduct.
“All acts by the defendant that occur as a continuing series of events directly precipitated or caused by the defendant’s initial conduct are done so in im- • mediate-flight.
“Ladies and gentlemen, the law says one final thing, and that is your verdict must be unanimous. It takes all twelve of you to agree to return a verdict for the State. It takes all twelve of you to agree to return a verdict for the defense.
“I suggest when you go out to begin your deliberations that you select one from among you to act as the foreperson of the jury. That individual will have no greater weight in the jury’s deliberations but will simply preside over the jury’s orderly deliberations. The second function of the foreperson will be to sign the verdict form we send back with you in this case. And in this case the verdict form will read substantially as follows: As there are two counts, one for felony murder and one for robbery, they will read substantially as follows:
“We, the jury, find the defendant guilty of murder. We, the jury, find the defendant not guilty of murder.
“We, the jury, find the defendant guilty of robbery. We, the jury, find the defendant not guilty of robbery.”

(C. 29-32.)

The facts at trial indicated that the robbery and murder were part and parcel of each other, and there was no plausible theory from which to conclude otherwise. The jury instructions clearly indicated that the jury must find the robbery in order to return a guilty verdict on the count of the indictment charging Brooks with the victim’s death. Further, the trial court, instructed the jury that the verdict form for “felony murder” would read “We, the jury, find the defendant guilty of murder. We, the jury, find the defendant not guilty of murder.” (C. 32; direct appeal R. 100.) Thus, based on our review of the record, it is apparent that, despite the erroneous verdict form, the jury’s intent is clear in this case. Brooks was convicted of felony murder.

Thus, having determined that Brooks was convicted of felony murder, we are left with his contention that the same robbery formed the basis of both his felony-murder conviction and his robbery conviction.

Section 13A-l-8(b), Ala.Code 1975, provides, in pertinent part:

“(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“(1) One offense is included in the other, as defined in Section 13A-1-9.”

It is well settled that this type of double-jeopardy transgression implicates the jurisdiction of the trial court. See, e.g., Edwards v. State, 907 So.2d 1077 (Ala.Crim. App.2004). See also Straughn v. State, 876 So.2d 492 (Ala.Crim.App.2003).

The evidence at trial indicated that Brooks and an accomplice followed the victim down a dirt road near a motel, robbed him of $25, and then shot him, causing his death. Under the facts presented at trial, Brooks was either guilty of committing a robbery during which the victim was killed or he was not guilty of any offense. Thus, it is clear that under the facts of this case, robbery as charged in count II of the indictment was a lesser-included offense of felony murder during a robbery as charged in count I of the indictment. Therefore, Brooks’s double-jeopardy claim in his petition is meritorious; his conviction for robbery violated double-jeopardy principles; and the trial court lacked jurisdiction to adjudge him guilty of that offense. See Edwards v. State, supra.

Based on the foregoing, this case is remanded for the circuit court to grant Brooks’s Rule 32 petition and vacate his conviction and sentence for first-degree robbery under count II of the indictment. On return to remand the circuit court shall submit to this Court a copy of its order doing so. Due return shall be made to this Court within 35 days of this opinion.

REMANDED WITH DIRECTIONS.

MCMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . For a detailed discussion of the convoluted history of Brooks’s attempts to gain postconviction relief from these convictions and sentences, see Brooks v. State, 892 So.2d 985 (Ala.Crim.App.2004) (opinion on return to remand from the Alabama Supreme Court).

      . The issue in Bradford involved the sentence that had been imposed. Because of our determination that Bradford had been convicted of reckless driving, we concluded that the sentence imposed by the trial court exceeded the statutory maximum. Thus, we remanded that case for the trial court to impose a sentence within the statutory range of punishment for that offense.

      . This excerpt was attached as an exhibit to Brooks’s Rule 32 petition and encompasses R. 92-94 of the trial transcript.

      . This excerpt was attached as an exhibit to Brooks’s Rule 32 petition and encompasses R. 97-100 of the trial transcript.

      . We recognize that the circuit court’s denial of Brooks's petition was based, in part, on this Court’s memorandum affirmance of Brooks’s direct appeal. In that affirmance, this Court relied on Calhoun v. State, 623 So.2d 448 (Ala.Crim.App.1993), to conclude that Brooks's consecutive sentences were not improper. The appellant in Calhoun had been charged with capital murder but was convicted of the separate underlying offenses of murder and robbery. Therefore, based on the facts in Calhoun, Calhoun’s separate convictions and sentences were permissible. In Brooks’s case, however, the evidence does not lend itself to the same conclusion. Thus, our reliance on Calhoun in affirming Brooks’s convictions and sentences on direct appeal was misplaced.

       Note from the reporter of decisions: On September 22, 2006, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR-RULES 3-5.1 AND 3-7.9.
    No. SC06-1840.
    Supreme Court of Florida.
    March 22, 2007.
    John F. Harkness, Jr., Executive Director, Henry M. Coxe, III, President, Paul F. Hill, General Counsel, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar has filed a petition proposing amendments to rules 3-5.1 and 3-7.9 of the Rules Regulating the Florida Bar in response to a request from this Court. We have jurisdiction. See art. V, § 15, Fla. Const.

The Bar proposes amending rules 3-5.1 (Generally) and 3-7.9 (Consent Judgment) to add language providing that any attorney who is suspended or disbarred by the Court, including suspensions or disbar-ments imposed pursuant to a consent judgment, would be prohibited from accepting any new business from the date of the order or opinion imposing discipline until the sanction is completed. In addition, the new language would provide that suspensions or disbarments are to take effect thirty days from the date of the order or opinion imposing discipline to allow the attorney to close out the practice of law and to protect the interests of existing clients. These provisions have long been included in orders or opinions issued by this Court imposing suspensions or disbar-ments. The amendments being proposed by the Bar would merely codify these provisions.

The proposed amendments were published by The Florida Bar in the August 15, 2006, edition of The Florida Bar News.

The publication notified the readers that the Bar would file a petition with the Court on or about September 15, 2006, and that any interested party could file a comment with the Court. After the petition was filed, this Court sua sponte issued an order extending the deadline for the filing of comments to December 1, 2006. No comments were received.

We have reviewed the proposed amendments. One of the paragraphs proposed as an addition to rule 3-5.1 states:

Unless waived or modified by the court on motion of the respondent showing good cause, an order or opinion imposing a suspension of more than 90 days shall include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until further order of the court and shall provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

(Emphasis added.) The phrase “until further order of the court” could be interpreted two ways: (1) until the Court enters an order expressly lifting the prohibition against accepting new business; or (2) until the Court enters an order reinstating the respondent. We prefer the second interpretation. In order to clarify the meaning, we replace “until further order of the court” with “until the date of the court’s order of reinstatement.” Our modification is as follows:

Unless waived or modified by the court on motion of the respondent showing good cause, an order or opinion imposing a suspension of more than 90 days shall include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the date of the court’s order of reinstatement and shall provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

(Emphasis added.)

Having considered the petition, we adopt the Bar’s proposed amendments with this modification to the proposal for rule 3-5.1.

CONCLUSION

Accordingly, we amend the Rules Regulating the Florida Bar 3-5.1 and 3-7.9 as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments will be effective on June 1, 2007.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 3-5.1 GENERALLY

A judgment entered, finding a member of The Florida Bar guilty of misconduct, shall include one or more of the following disciplinary measures:

(a) Admonishments. [No Change]

(b) Minor Misconduct. [No Change]

(c) Probation. [No Change]

(d) Public Reprimand. [No Change]

(e) Suspension. The respondent may be suspended from the practice of law for a definite period of time or an indefinite period thereafter to be determined by the conditions imposed by the judgment. During such suspension the respondent shall continue to be a member of The Florida Bar but without the privilege of practicing, - and, upon the-expiration of -the suspension period-and the satisfaction of all conditions accompanying the suspension, the respondent shall become -eligible to all-of-the privileges of members in The Florida Bar. A suspension of 90 days or less shall not require proof of rehabilitation or passage of the Florida bar examination and the respondent shall become eligible for all privileges of members of The Florida Bar upon the expiration of the period of suspension. A suspension of more than 90 days shall require proof of rehabilitation and may require passage of all or part of the Florida bar examination and the respondent shall not become eligible for all privileges of members of The Florida Bar until the court enters an order reinstating the respondent to membership in The Florida Bar. No suspension shall be ordered for a specific period of time in excess of 3 years.

Unless waived or modified by the court on motion of the respondent showing good cause, an order or opinion imposing a suspension of 90 days or less shall include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the end of the term of the suspension and shall provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

Unless waived or modified by the court on motion of the respondent showing good cause, an order or opinion imposing a suspension of more than 90 days shall include a provision that prohibits the respondent from accepting new business from the date of the order or opinion until the date of the court’s order of reinstatement and shall provide that the suspension is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

(f) Disbarment. A judgment of disbarment terminates the respondent’s status as a member of the bar. Permanent disbarment shall preclude readmission. A former member who has not been permanently disbarred may only be admitted again upon full compliance with the rules and regulations governing admission to the bar. Except as might be otherwise provided in these rules, no application for readmission may be tendered within 5 years after the date of disbarment or such longer period as the court might determine in the disbarment order and thereafter until all court-ordered restitution and outstanding disciplinary costs have been paid.

Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer’s trust account or special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar capacity such as trustee under a specific trust document. A respondent found guilty of such theft shall have the opportunity to offer competent, substantial evidence to rebut the presumption that disbarment is appropriate.

Unless waived or modified by the court on motion of the respondent, an order or opinion imposing disbarment shall include a provision that prohibits the respondent from accepting new business from the date of the order or opinion and shall provide that the disbarment is effective 30 days from the date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

(g) Notice to Clients. [No Change]

(h) Forfeiture of Fees. [No Change]

(i) Restitution. [No Change]

(j) Disbarment on Consent. [No

Change]

RULE 3-7.9 CONSENT JUDGMENT

(a) Before Formal Complaint is Filed.

[No Change]

(b) After Filing of Formal Complaint.

[No Change]

(c) Approval of Consent Judgments.

[No Change]

(d) Content of Conditional Pleas. All conditional pleas shall show clearly by reference or otherwise the disciplinary offenses to which the plea is made. • All conditional pleas in which the respondent agrees to the imposition of a suspension or disbarment shall include an acknowledgment that, unless waived or modified by the court on motion of the respondent, the court order accepting the conditional plea will contain a provision that prohibits the respondent from accepting new business from the date of the order or opinion and shall provide that the suspension or disbarment is effective 30 days from the,date of the order or opinion so that the respondent may close out the practice of law and protect the interests of existing clients.

(e) Effect of Pleas on Certification. [No Change]


text:
    Robert ROTH, Appellant, v. THE CHARTER CLUB, INC., Appellee.
    No. 06-1514.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Bilzin Sumberg Baena Price & Axelrod and Allen J. Smith and Glen H. Waldman and Joseph A. Mesa, III, Miami, for appellant.
    Cole, Scott & Kissane and Luisa M. Linares, Miami, for appellee.
    Before COPE, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

Robert Roth appeals the dismissal, with prejudice, of the amended complaint in this action for a declaratory judgment. Because this case properly pleaded the elements for a declaratory judgment, see Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla.1996), we reverse and remand for further consistent proceedings.

Roth is the owner of a commercial unit of approximately 10,000 square feet in The Charter Club. When he purchased the unit in 1997, he applied for, and received from the City of Miami, a Class II Special Permit, a new zoning permit which included the requirement that 48 parking spaces be designated for the use of the commercial space (“minimum parking requirement for residential office use shall be one [1] space per three hundred [300] square feet”). Thereafter, The Charter Club allocated 48 spaces for the unit and Roth executed a document providing that the 48 spaces revert to The Charter Club if he sells the unit. Now Roth is in the process of selling the unit and there is a dispute between the parties over the parking spaces as well as some portion of the unit itself.

The trial court dismissed the amended complaint based on The Charter Club’s argument that Roth failed to exhaust administrative remedies. There are no administrative remedies to exhaust, however, because Roth is not contesting anything having to do with the City of Miami’s decision regarding parking spaces for the unit. See Perry v. City of Fort Lauderdale, 387 So.2d 518 (Fla. 4th DCA 1980). Roth’s action for declaratory judgment asks whether the City-awarded Class II Special Permit requires The Charter Club to continue to allocate 48 parking spaces to the unit even if it is sold to a new buyer. Roth says the answer is yes; The Charter Club takes the opposite view that the 48 spaces do not run with the unit, and revert to the Club upon sale of the unit.

The Declaratory Judgment Act is to be liberally construed, Olive v. Maas, 811 So.2d 644 (Fla.2002), to afford parties relief from insecurity and uncertainty with respect to rights and status. Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hearings, 661 So.2d 1190 (Fla.1995); National Rifle Assn. v. City of South Miami, 812 So.2d 504 (Fla. 3d DCA 2002). As stated in Perry, 387 So.2d at 520: “What is at stake is the proper interpretation to be placed on the ordinance, a matter of statutory construction and therefore, a matter for the courts.”

Reversed and remanded for further proceedings consistent herein.

      . The sale is contingent on the buyer having 48 parking spaces.

      . Roth also requests a declaratory judgment about the size of the condominium unit. The Charter Club maintains that a portion of Roth's commercial unit actually belongs to the Club. This issue was properly raised and must be resolved on remand.


author: SILBERMAN, Judge.

text:
    C.M.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2493.
    District Court of Appeal of Florida, Second District.
    March 28, 2007.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

C.M.B. appeals an order adjudicating him delinquent for a first-degree misdemeanor battery. C.M.B.’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting there was no arguable merit in the appeal. Our review of the record and the one potential issue raised by C.M.B.’s counsel reveals no reversible error.

We do note, however, an issue concerning C.M.B.’s disposition order. The order commits C.M.B. to the Department of Juvenile Justice for placement in a moderate risk program for an indeterminate period of time, followed by conditional release. Based on the wording of the order, the duration of C.M.B.’s commitment may improperly exceed the maximum term of imprisonment that an adult may serve for the same offense. See § 985.231(d), Fla. Stat. (2005); see also AC. v. State, 688 So.2d 1004, 1005 (Fla. 2d DCA 1997) (concluding that the juvenile’s sentence was illegal because it exceeded the maximum term that he could have received as an adult for the same offense). Because C.M.B. did not preserve this issue for appeal, we affirm the adjudication and disposition orders in their entirety. Our affirmance is without prejudice to C.M.B. filing a motion to correct disposition order pursuant to Florida Rule of Juvenile Procedure 8.135(a), if he elects to do so. See R.C.M. v. State, 887 So.2d 411, 412 (Fla. 2d DCA 2004).

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.


text:
    M.R. Father of M.R., II, a Child, et al., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    Nos. 5D06-3183, 5D06-3708.
    District Court of Appeal of Florida, Fifth District.
    March 29, 2007.
    Carl S. New, Ocala, for Appellant, M.R.
    Peter J. Sziklai, Ocala, for Appellant, R.G.
    Ralph J. McMurphy, Wildwood, for Ap-pellee, Department of Children and Families.
    Mercedes Scopetta, Orlando, for Appel-lee, Guardian ad Litem.
   PER CURIAM.

The parental rights of the parents of M.R., II, were terminated by the trial court after two years of efforts at reunification. In the end, the trial court found that there was clear and convincing evidence supporting the grounds for termination pursuant to section 39.806, Florida Statutes (2005), and that termination was in the manifest best interests of the child. The court concluded, as well, that there was no reasonable basis for improvement or recovery, and that termination was the least restrictive means available to protect the child.

A trial court’s finding that termination is supported by clear and convincing evidence is given the benefit of the presumption of correctness, and should not be disturbed absent a showing of clear error or a lack of evidentiary support. See D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006), N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). As there has been no demonstration that the ruling was either clearly erroneous, or unsupported by the evidence, we affirm.

AFFIRMED.

PALMER, MONACO and TORPY, JJ., concur.


text:
    D.W.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2010.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.
    James S. Purdy, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND

PER CURIAM.

This case is on remand from the Florida Supreme Court in light of V.K.E. v. State, 934 So.2d 1276 (Fla.2006).

For the reasons stated in the original opinion filed August 19, 2005, we reverse the disposition orders because they might be construed to authorize commitment for a term that exceeds the statutory maximum.

As to Appellant’s second point on appeal related to the imposition of statutory surcharges pursuant to sections 938.08 and 938.085, Florida Statutes, and in light of V.K.E., we strike those portions of the disposition orders that impose a $201 “domestic violence” surcharge and a $151 “rape crisis center” surcharge.

In all other respects, the disposition orders are affirmed.

AFFIRMED in part; REVERSED in part and REMANDED.

GRIFFIN, PALMER and TORPY, JJ., concur.


author: GRIFFIN, J.

text:
    Charles Lindsay SUMMERSILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4374.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.

      James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   GRIFFIN, J.

Charles Lindsay Summersill [“Summer-sill”] appeals the trial court’s order denying his motion to suppress two separate inculpatory statements he made to law enforcement. After the motion was denied, Summersill pled nolo contendere to the charges against him, reserving the right to appeal the denial.

We dismiss the appeal because the appealed order is plainly not dispositive. There were witnesses and physical evidence that the State could have relied upon to secure a conviction without using the defendant’s admissions. See Brown v. State, 376 So.2d 382 (Fla.1979).

DISMISSED.

ORFINGER and LAWSON, JJ., concur.

      . Even if the order were dispositive, we have examined the circumstances of both statements, and we conclude that the trial court ruled correctly.


author: PLEUS, C.J.

text:
    Rick A. ROBLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-582.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, C.J.

Robles appeals his eight year sentence for sexual battery. He argues that the trial court erred in adding eighty points for sexual penetration to his sentencing scoresheet, which raised his minimum possible sentence, without a specific jury finding of penetration. He cites Appren- di and Blakely as support for this argument. However, Apprendi and Blakely only require jury findings for any fact that increases the penalty for a crime “beyond the statutory maximum.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The imposition of sexual penetration points did not affect the statutory maximum sentence of fifteen years. Thus, Apprendi and Blakely did not require a jury finding of penetration. Instead, the trial judge was allowed to make this finding by a preponderance of evidence. See Gilson v. State, 795 So.2d 105, 111 (Fla. 4th DCA 2001). The trial court’s finding of penetration was supported by the undisputed testimony of the victim and Robles. Accordingly, we affirm Robles’ sentence.

AFFIRMED.

THOMPSON and SAWAYA, JJ., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).


author: EVANDER, J.

text:
    The PLUMBING SERVICE COMPANY, Appellant, v. PROGRESSIVE PLUMBING, INC, Appellee.
    No. 5D06-2012.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.

      Thomas P. Malone of Thomas P. Malone, P.A., Orlando, for Appellant.
    Brian D. Solomon of Michael C. Sasso, P.A., Winter Park, for Appellee.
   EVANDER, J.

The Plumbing Service Company (hereinafter “Plaintiff’) contends the trial court erred in granting a motion for a judgment on the pleadings filed by Progressive Plumbing, Inc. (hereinafter “Defendant”). We agree.

In considering a defendant’s motion for judgment on the pleadings, all well-pled allegations of the complaint must be accepted as true and all allegations in the answer which are denied must be accepted as false. Faircloth v. Garam, 525 So.2d 474 (Fla. 5th DCA 1988). The applicable standard of review of a trial court’s decision granting a judgment on the pleadings is de novo review. Thompson v. Napotnik, 923 So.2d 537 (Fla. 5th DCA 2006).

In the present case, Plaintiff alleged Zom Lake Eola, Ltd. (owner) had contracted with Hardin Construction Group, Inc. (general contractor) to construct an apartment complex. Hardin was alleged to have entered into a subcontract with Defendant for the plumbing portion of Hardin’s contract. Defendant was then alleged to have entered into a sub-subcontract with Plaintiff.

The paragraphs of the complaint most germane to this appeal read as follows:

8. In pursuance of completion of the subcontract referred to in paragraph 5 above, (Defendant) entered into a subcontract with Plaintiff for Plaintiff to provide labor for installation of plumbing systems for incorporation into the Project.
9. On January 15, 2001, (Defendant) provided a proposal and Letter of Commitment to Plaintiff regarding the terms of the Subcontract. A true and correct copy of the initial proposal provided to Plaintiff by (Defendant) is attached hereto as Exhibit “A”. On January 15, 2001, Plaintiff countered with its own proposal regarding clarification of the terms of the Subcontract. The Plaintiffs proposal set forth the oral agreement previously made by Plaintiff and (Defendant). A true and correct copy of Plaintiffs proposal is attached hereto as Exhibit “B”. (Defendant) agreed to such corrected terms and provided Plaintiff with its revised proposal on the same date. A true and correct copy of the revised proposal is attached hereto as Exhibit “C” (hereinafter the “Agreement”). (emphasis added)
10. The Agreement between (Defendant) and Plaintiff was for Plaintiff to provide labor for installation of plumbing services for incorporation into the Project’s 230 units. The Plaintiff was to be paid $696.52 per unit, totaling $160,200.00. The Plaintiff would have profited $117,000 had it been able to complete its work under the Agreement.

Exhibits A, B and C referenced in paragraph 9 were attached to the complaint. These exhibits purport to be letters faxed between the parties on January 15, 2001. The significant paragraphs contained in these faxed letters were as follows:

Exhibit A — Letter sent by Defendant to Plaintiff: ■

This letter is to inform you that we will award you a contract for the water piping, tub valve and water heater in the units at the Waverly Apartments. The price will be $650.00 per unit. If there are any questions, please call me immediately.

Exhibit B — Response letter from Plaintiff to Defendant:

Thanks for the letter of commitment. Three things. I need you to date it and sign it. I was under the understanding that the total price was going to be $160,200.00 that divided by 230 rooms comes to $696.52.

Exhibit C — Reply letter by Defendant to Plaintiff:

This letter is to inform you that we will award you a contract for the water piping, tub valve, and water heater in the units at the Waverly Apartments. The price will be $696.00 per unit. If there are any questions, please call me immediately.

Plaintiff further alleged that it began work on the contract on January 17, 2001. The last day Plaintiff worked on the project was January 26, 2001. It is alleged Defendant wrongfully terminated the contract with Plaintiff on that date, because Plaintiff would not agree with Defendant’s attempts to change the original contract terms.

Defendant filed an Answer, denying almost all of the allegations set forth in Plaintiffs Complaint. As an affirmative defense, Defendant alleged its intent was, at some time in the future, to award a contract to Plaintiff only for “overflow” work — at a rate of $696.00 per unit. In its Reply, Plaintiff specifically denied this alleged affirmative defense.

In its motion for judgment on the pleadings, Defendant argued its use of the language “we will award you a contract” in Exhibits A and C established the parties did not have a binding contract, but merely “an agreement to agree.” The trial judge accepted Defendant’s argument, stating:

But, it’s clear that there was not a meeting of the minds here. And what there was here is an agreement to agree.

To state a cause of action for breach of contract, a Plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to “a certain and definite proposition” and left no essential terms open. W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297 (Fla. 1st DCA 1999).

In this case, Plaintiffs sufficiently alleged the existence of a binding agreement between the parties. In paragraph 9 of its Complaint, Plaintiff alleged the parties had entered into an oral agreement, the terms of which were confirmed by written correspondence (Exhibits B & C). Pursuant to Plaintiffs allegations, the “certain and definite proposition” agreed to by the parties was that Defendant would pay Plaintiff $160,200.00 to provide the water piping, tub valve and water heaters for 230 units at the Waverly Apartments.

Defendant’s use of the words “we will award you a contract” in Exhibits A and C does not conclusively establish the parties merely had “an agreement to agree.” To properly determine the parties’ intent, the factfinder would also have to consider other communications' between the parties, the nature of the relationship between the parties, the surrounding circumstances, and other factors — such as the apparent fact that Plaintiff commenced work on the project with Defendant’s knowledge'. See, e.g., Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So.2d 404 (Fla.1974); Midtown Realty, Inc. v. Hussain, 712 So.2d 1249, 1252 (Fla. 3d DCA 1998).

Finally, the law recognizes that parties can have an enforceable contract binding them to prepare and execute a subsequent agreement. W.R. Townsend Contracting, 728 So.2d at 302. See also Terra Group, Inc. v. Sandefur Mgmt., Inc., 527 So.2d 849 (Fla. 5th DCA 1988); Housing Auth. of City of Fort Pierce v. Foster, 237 So.2d 569 (Fla. 4th DCA 1970).

The effect of the trial court’s decision was to wrongly deny Plaintiff the opportunity to present evidence supporting its allegation that the parties had entered into a binding agreement.

REVERSED.

TORPY and LAWSON, JJ., concur.


author: MONACO, J.

text:
    Eddie MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1131.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.
    Rehearing Denied April 11, 2007.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The primary issue raised by the appellant, Eddie Murphy, in this appeal is whether the trial court erred in imposing an habitual felony offender sentence. ' Mr. Murphy asserts that the State failed to give him sufficient written notice of its intent to seek habitualization, and that in any event the trial court failed to inquire of him during the plea colloquy if he was aware of the consequences of habitualization. It appears that Mr. Murphy is correct.

At his plea and sentencing hearing Mr. Murphy was asked if he had read and understood the plea agreement that he signed, to which he replied in the affirmative. The plea agreement basically said that there was no dispositional understanding and that Mr. Murphy was pleading to an habitual traffic offender charge. It further indicated that if Mr. Murphy had two or more prior felonies, he might receive a sentence double the normal five-year sentence for a third-degree felony. No further explanation was given.

During sentencing on the “open” plea agreement, the State pointed out that they had filed an “habitual felony offender notice” in open court that showed numerous prior felony convictions. The trial court sentenced Mr. Murphy to 5 years imprisonment in the custody of the Florida Department of Corrections, saying:

The Court: Furthermore, Mr. Murphy, I’m going to find that you are a habitual felony offender and this 5-year sentence is as a habitual felony offender. Because it is as a habitual' felony' offender sentence, I could have sentenced you to 10 years, but I don’t choose to do that.

Mr. Murphy now argues that the State failed to give him sufficient written notice of its intent to seek an habitual felony offender sentence. In addition, he asserts that the trial court failed to adequately inquire during the plea colloquy concerning whether or not he was aware of the consequences of an habitual felony offender sentence.

While a trial court is required to inform a defendant only of the direct consequences of the plea and is under no duty to apprise him or her of any collateral consequences, knowledge that habitualization may affect the possibility of early release through certain programs is considered a direct consequence or one that has a definite, immediate, and largely automatic effect on the range of a defendant’s punishment. See Major v. State, 814 So.2d 424 (Fla.2002); Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982); see also Boutwell v. State, 776 So.2d 1014,1016 n. 2 (Fla. 5th DCA 2001). Accordingly, in Ashley v. State, 614 So.2d 486 (Fla.1993), the Florida Supreme Court held that before a trial court may impose an habitual offender sentence following a plea of guilty or nolo contendere: (1) the defendant must be given written notice of the State’s intent to seek an habitual offender sentence, and (2) the trial court must confirm that the accused is personally aware of that possibility and of the reasonable consequences of habitualization. See also Akers v. State, 890 So.2d 1257 (Fla. 5th DCA 2005).

It is the second prong that causes us concern. The case law teaches that with respect to this requirement the trial court should, during the plea colloquy, discuss with the defendant his or her eligibility for habitualization, as well as the maximum habitual offender term for the charged offense, the fact that habitualization may affect the possibility of early release through certain programs, and where habitual violent felony offender provisions are implicated, the mandatory minimum term. See Major, 814 So.2d at 429; Black v. State, 698 So.2d 1370 (Fla. 2d DCA 1997) (habitual offender sentence cannot be imposed where court failed to advise or determine if defendant knew that he could be ineligible for certain programs affecting early release such as gain time or provisional credit); see also State v. Wilson, 658 So.2d 521 (Fla.1995).

In the instant case, we are unable to confirm that the first prong was satisfied because it is simply not clear from the record when the State served its formal written notice of intent to habitualize. All that is known is that it was filed with the court on the day of the plea hearing. It is the second prong, however, that is more troubling.

It does not appear that the trial court made any attempt to satisfy the requirement to make Mr. Murphy aware of the reasonable consequences of habituali-zation prior to accepting the plea. In fact, the only comment the trial court made regarding habitualization prior to acceptance of the plea was the following:

The Court: Do you understand if you engage in criminal conduct in the future, your conviction on these charges can be counted against you and could result in your receiving a more severe sentence in that future case?

The colloquy between Mr. Murphy and the trial court was insufficient to satisfy the requirements for habitualization. See Akers, 890 So.2d at 1260. Moreover, even assuming that the written notice provided by the State was timely, it too did not advise Mr. Murphy of the possibility and consequences of habitualization. Compare State v. Blackwell, 661 So.2d 282 (Fla.1995) (written plea agreement contained provisions fully explaining all direct consequences of habitualization).

Accordingly, we reverse the judgment and sentence and remand this case to the trial court to allow Mr. Murphy the opportunity to withdraw his plea and proceed to trial on the subject charges. Should Mr. Murphy plead no contest or guilty the trial court could, in its discretion, impose a guideline sentence or an habitual offender term provided that the requirements of section 775.084, Florida Statutes and Ashley are met. See State v. Jefferson, 665 So.2d 1057 (Fla.1996); Pitts v. State, 805 So.2d 1087 (Fla. 5th DCA 2002).

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.


author: SAWAYA, J.

text:
    James Kirk ISENHOUR, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-888.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.

      Gregory E. Tucci, Ocala, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

A jury convicted James Isenhour of grand theft, and the trial court sentenced him to five years’ imprisonment followed by 30 years’ probation. Isenhour appeals, contending that the State failed to prove the requisite criminal intent to support the grand theft conviction. He also contends that the State failed to prove a person or entity had an interest in the funds superior to his own. We agree with both contentions and reverse.

Factual and Procedural Background

In 1978, Isenhour co-founded Ocala’s Cambridge Academy, which is an accredited long-distance educational institution providing services to students who are no longer successful in public school. In the pertinent time period, Isenhour was chairman of the board of the school. Isenhour was also the chief financial officer of Silver Archer Foundation, Ltd., which Isenhour formed and had qualified as a nonprofit Scholarship Funding Organization [SFO] under the laws of Florida in January 2002. Institutions qualifying as SFO’s receive corporate donations and must, by statute, funnel 100% of the corporate donations to qualifying children in the form of scholarships — none of the donated money can be used for administrative expenses. In return for their participation in the- scholarship program, the corporations receive a dollar-for-dollar credit on their Florida corporate income tax liability as long as all qualifying factors of section 220.187, Florida Statutes (2003) (entitled, “Credits for Contributions to Nonprofit Scholarship-Funding Organizations”) are met and the SFO certifies that the money was paid out as scholarships to qualifying students.

In early 2003, Isenhour learned that Pulte Homes, Inc., a residential construction corporation, was intending to participate in the program, so he telephoned the company and solicited funds from it. He urged early donations, and Pulte responded with donations totaling $268,125. Is-enhour then attempted to get both the principal and the student services director of Cambridge Academy to identify qualifying students so that the scholarship money could be disbursed. Both testified that they had refused to do so because they believed that finding scholarship students was the job of Silver Archer, not Cambridge Academy. Isenhour tried a number of times and in a number of ways to get Cambridge Academy to cooperate, but with no success. He asked the principal to have an employee make phone calls to solicit student applications for the SFO scholarship funds, but she refused. In addition, Isenhour gave the principal checks and applications and asked her to secure qualified students, but again she refused. Isenhour, by all accounts, was angered by the lack of cooperation and greatly frustrated.

During this period of time, a harbinger of the difficulty to befall Isenhour appeared when Cambridge Academy started to experience financial difficulty. Isenh-our and his ex-wife both testified to selling a private airplane and boat and using the proceeds to support the school. Isenhour also used money from other corporations he held to pay expenses at Cambridge Academy and borrowed money from at least one Cambridge Academy employee. Bankruptcy proceedings were initiated and, apparently due to IRS problems, the IRS periodically cleaned out Cambridge Academy bank accounts. Interestingly, in the same period that Isenhour was unsuccessfully attempting to award the Silver Archer scholarships, Cambridge Academy did give tuition credits to needy students in an amount that was almost the same as that donated by Pulte.

In any event, Isenhour testified that he deposited the Pulte funds into the Silver Archer account at Wachovia Bank. Isenh-our admitted to using the funds to pay the bankruptcy attorney for Cambridge Academy, to repay a loan from a Cambridge Academy employee, and to pay salaries and payroll, including over'$7,500 to himself as salary after not receiving any income from Cambridge Academy for some period.

Isenhour refused to certify that he had used the funds as required by statute, as he had not. He notified the Department of Education that he would not be certifying the funds. This triggered the Department of Education to advise Isenhour that the failure to provide the certification would result in Silver Archer no longer being qualified as an SFO. The Department of Education advised Isenhour that it would be informing the Department of Revenue of this fact.

Isenhour was aware that the funds were not supposed to have been used for administrative expenses and telephoned both the Department of Revenue and the Department of Education to see what should be done. Neither had helpful advice. In fact, one e-mail from the Department of Revenue to its tax law specialist relates that Isenhour had called and asked what to do with contributions that had not been given to students and the writer had advised Isenhour that “that would be up to the DOE.” Another Department of Revenue email shows that Isenhour had called another time and wanted an opinion as to what to do with unspent money and the Department had referred him to the statutes and suggested that Isenhour’s problem was with the Department of Education as “there were no provisions in the statute to return money to the corporations or how to handle any extra money that was not spent on scholarships by the end of the state fiscal year.... [Isenhour] was not happy with my answers and seemed frustrated.” A third e-mail relates another call from Isenhour and memorializes that the Department of Revenue author had advised Isenhour “that the best course of action may be to return unspent funds to the contributors since if he didn’t send the required receipt we may disallow all or a portion of the credit for the contributors and that may get him in trouble with the contributors also. I explained several times that we were only obligated to the taxpayer and that we had been meeting with other agencies to determine who was responsible for the SFO’s.”

It seems that Silver Archer’s situation (the inability to find scholarship-eligible students to give the money to) was a first, as the program was apparently a new one, and there was no statutory provision giving guidance. Isenhour telephoned Pulte seeking to return the money to Pulte; Pulte refused to engage in any discussion with him because it was aware that an investigation into the funds had been launched. An investigator with the Florida Department of Revenue audited Silver Archer’s books and concluded that Silver Archer funds were used for the operational purposes of Cambridge Academy and not a single dollar had gone for scholarships. A criminal Information was filed against Is-enhour charging that between March 1 and August 15, 2003, Isenhour

did unlawfully and knowingly obtain, use or endeavor to obtain or use the property of DEPT OF REVENUE, to-wit: U.S. Currency, of the value of one hundred thousand dollars ($100,000.00) or more, with the intent to either temporarily or permanently deprive DEPT OF REVENUE of a right to the property or a benefit thereof, or did appropriate the said property to his own use or to the use of any person not entitled thereto, in violation of Florida Statutes 812.014(1) and 812.014(2)(a);....

At trial, even the prosecutor admitted that there was no provision in the statutory scheme for giving the money back to either the corporate donor or to the Department of Revenue if scholarship students were not located and the money was not given out. The prosecutor stated, too, that the reason Isenhour’s inquiries to the State as to how to return the money were not answered is that the State “hadn’t anticipated this far down the line.”

Isenhour’s attorney moved several times for a directed verdict on the basis that the Information charged that the criminal act occurred between March and August 2003 and, during that period, the money was rightfully in Silver Archer’s possession and the Department of Revenue, the alleged victim, had no right to the money. Even assuming the Department of Revenue could have been the victim, it could not have become the victim until it was deprived of the funds, which would have occurred when Pulte’s tax was due, which was after the time frame alleged. There was no evidence that the Department of Revenue was owed, or had any interest in, the funds during the period alleged, nor was there evidence that the State owned the money when Pulte made the donation to Silver Archer, the attorney pointed out.

The prosecutor responded that “of course” the money was the Department of Revenue’s money. He reasoned that the money was sales tax money (it was not) and the State’s interest accrued immediately upon being collected. The court then questioned how the Department of Revenue could be the victim where it had given the tax credit to Pulte anyway. The prosecutor’s answer was that the victims were the needy students who did not receive the scholarships, but the State could not plead unnamed victims. The court reserved ruling.

At the conclusion of the evidence, Isenh-our’s attorney renewed his motion. Then, after the jury returned its verdict, Isenh-our’s attorney moved for a judgment of acquittal notwithstanding the verdict. These motions were denied, judgment was entered against Isenhour, and he was sentenced to five years in prison. Isenhour appeals, contending that the State failed to prove the requisite criminal intent to support the grand theft conviction and that the State failed to prove a person or entity had an interest in the funds superior to his own.

Standard of Review

We must review the record de novo to determine whether there is sufficient evidence to support the verdict. Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); McHolder v. State, 917 So.2d 1043 (Fla. 5th DCA 2006); Sanchez v. State, 909 So.2d 981 (Fla. 5th DCA 2005); Sutton v. State, 834 So.2d 332, 334 (Fla. 5th DCA 2003). In Sutton, we explained:

This court has repeatedly held that a motion for judgment of acquittal should be denied if the state presents competent evidence to establish each element of the offense. L.C. v. State, 799 So.2d 330 (Fla. 5th DCA 2001); Espiet v. State, 797 So.2d 598 (Fla. 5th DCA 2001); V.L. v. State, 790 So.2d 1140 (Fla. 5th DCA 2001). A motion for judgment of acquittal may be granted if the evidence, viewed in a light most favorable to the state, fails to establish a prima facie case of guilt. L.C.; Espiet; V.L. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the state that the trier of fact might fairly infer from the evidence. Lynch v. State, 293 So.2d 44 (Fla.1974); Espiet; A.L. v. State, 790 So.2d 1149 (Fla. 2d DCA 2001). It is the trial judge’s duty to review the evidence to determine the presence or absence of competent evidence from which the trier of fact could infer guilt to the exclusion of all other reasonable inferences. A.L. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So.2d at 803 (citing Banks v. State, 732 So.2d 1065 (Fla.1999)).

Sutton, 834 So.2d at 334.

We begin our review with an analysis of the statutory provisions Isenhour was charged with violating — sections 812.014(1) and 812.014(2)(a), Florida Statutes (2003).

Legal Analysis

In determining whether the State’s successful prosecution for the violation of sections 812.014(1) and 812.014(2)(a) is sustainable, we must consider “whether the evidence presented by the State was legally sufficient to establish any of the traditional common law offenses embraced within the statutory definition of theft.” Nooe v. State, 892 So.2d 1135, 1139 (Fla. 5th DCA 2005) (citing Crawford v. State, 453 So.2d 1139, 1141 (Fla. 2d DCA), pet. for review denied, 459 So.2d 1041 (Fla.1984)).

The omnibus theft statute found in section 812.014 is broad in application and includes the old offenses of misappropriation, embezzlement, and conversion, but requires that the defendant have the intent to deprive, either temporarily or permanently, “the other person of a right to the property or a benefit from the property” or “Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.” In other words, as this court observed in Brewer v. State, 413 So.2d 1217, 1219 (Fla. 5th DCA 1982), petition for review denied, 426 So.2d 25 (Fla.1983), “[U]nder the present theft statute, how the property of another is acquired is no longer important. Thus, regardless of how the property is acquired, if the defendant has the requisite intent, he is guilty of the crime of theft.” (Citation omitted). See Sewall v. State, 783 So.2d 1171, 1176 (Fla. 5th DCA 2001) (“Felonious intent is an essential element of the crime of grand theft. In order to sustain a conviction for grand theft, the State must show that the defendant had the specific intent to commit the theft at the time of or prior to the commission of the act of taking. Because intent to commit the theft usually cannot be proven by direct evidence, the intent may be inferred from the circumstances surrounding the illegal act. However, the circumstantial evidence must exclude every reasonable hypothesis but that of guilt.”) (citations omitted); Bartlett v. State, 765 So.2d 799, 800-01 (Fla. 1st DCA 2000) (“In order to prove specific felonious intent, the state can rely on circumstantial evidence. Since intent necessarily involves the state of mind of the perpetrator, very often circumstantial evidence is the only evidence available to prove intent. However, such circumstantial evidence must exclude every reasonable hypothesis but that of guilt.”); see also McGough v. State, 302 So.2d 751, 755 (Fla.1974) (“Where an attempt is made by the State to prove [knowledge and intent] through circumstantial evidence, such proof must not only be consistent with guilt but also inconsistent with any other reasonable hypothesis of innocence.”).

Adverting to the evidence in the record, the shortcomings of the State’s attempt to establish that Isenhour committed the crime of grand theft are readily apparent. The evidence was unrebutted that Silver Archer was birthed to act as an SFO a year prior to the alleged offenses; that Isenhour solicited funds for the specific purpose of funding scholarships through Silver Archer; that upon obtaining the donations from Pulte, he actively and repeatedly attempted to locate qualified students and attempted to force Cambridge Academy employees to find qualified students; that Isenhour was greatly angered and frustrated by Cambridge Academy employees’ refusal to identify potential scholarship students; that Isenhour refused to certify that he had used the money as required because he had not; that Isenhour contacted various state departments to find out how to handle the situation; that the departments themselves did not have solid suggestions as this was apparently a novel situation; and that Isenh-our contacted Pulte to arrange paying back the money and Pulte refused to discuss it with him.

These are the facts as established by both the State’s witnesses and Isenhour’s own testimony. Even accepting the facts in evidence and every reasonable inference therefrom in favor of the State as must be done in reviewing a defendant’s motion for judgment of acquittal, Bufford, v. State, 844 So.2d 812, 813 (Fla. 5th DCA 2003), there, was no evidence or inference that contradicted Isenhour’s theory of the case, which was that he had no intent to steal the funds, but rather unexpectedly found, himself in the position of being unable to locate qualified recipients for the scholarship money. See Benitez v. State, 852 So.2d 386 (Fla. 3d DCA 2003) (reversing grand theft conviction where State’s evidence was not inconsistent with defendant’s reasonable hypothesis of innocence on issue of felonious intent which was that he ran into unforeseen problems with home renovation project and never intended to deprive homeowners of their money); Everett v. State, 831 So.2d 738, 740 (Fla. 4th DCA 2002) (“[A] motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”). Although Isenhour admittedly used the money to prop up Cambridge Academy while trying to find guidance from the State on how to handle the situation, concomitantly Cambridge Academy was giving out scholarships in an amount nearly equal to the donated Pulte funds. Thus, Isenhour reasoned, although he did not follow the specific funding procedures of the statute, the intent of section 220.187 was fulfilled by Cambridge Academy’s grant of scholarships to students in an amount nearly equal to the donated funds. Although faulty, Isenhour’s reasoning further shows his lack of intent to deprive the rightful recipients of the funds.

Taking all the evidence in a light most favorable to the State, there is no testimony from which it could be concluded that Isenhour had the requisite criminal intent to commit a theft of the funds. There was no evidence that at the time Isenhour obtained the funds from Pulte, he had the intent to either temporarily or permanently deprive Pulte, or any other entity, of its right to the money.

This, in fact, brings to light an additional problem with the State’s case. Pulte had donated the money, thereby relinquishing its right thereto. The alleged victim was the Department of Revenue, which had eventually granted Pulte the tax credit (the decision to do so was obviously outside the dates alleged for the theft) and then asserted that but for Isenhour’s theft of the money, the money would have gone to scholarships. Logically, then, the Department was not out anything as it occupies the same position it would have occupied had the scholarship funds been awarded — it would not have received the money as corporate income tax and it would have given the tax credit to Pulte. Even the prosecutor was wrong at trial when he claimed that the actual victims were the needy children. There was no evidence that any qualifying students were denied scholarships because of Isenhour’s acts. In fact, it was Isenhour’s inability to find any qualifying students that was the root of the entire fiasco. Pulte was not victimized because it received the tax credit to which it would have been entitled had the donated money been used appropriately-

Even assuming that the Department was victimized by not receiving funds to which it would have been entitled had a credit not been given, the problem is that the Department had no interest in. the donated funds during the dates alleged in the Information. Its interest in corporate income tax payments was not shown to arise at any time prior to the due date of those taxes. Unlike sales tax collection or employee withholding taxes, which are deemed held in trust by the collector thereof until paid to the government, Cash v. State, 628 So.2d 1100, 1101 (Fla.1993) (holding that gas retailer had agent-principal relationship with state regarding its collection of local option tax from gas purchasers; retailer was mere “conduit” of tax proceeds to state and, thus, retailer’s personal use of tax proceeds supported conviction for grand theft), the State failed to show here that the Department of Revenue had any interest in corporate income taxes prior to the date the taxes were due and owing to the Department. Because the corporate taxes were not due until sometime after December 31, 2003, which is outside the time alleged in the Information — as correctly asserted by Isenhour’s attorney below — the State failed to establish that any person or entity had a superi- or right to the funds during the dates alleged in the Information. In fact, no witness for the State testified that any person or entity had an interest in the money superior to Isenhour’s at any time, let alone during the dates alleged in the Information.

This was a fatal flaw, just as occurred in Seiler v. State, 522 So.2d 113 (Fla. 5th DCA 1988), wherein this court reversed the county building inspector’s conviction for grand theft where he had conducted licensing examinations and had kept the fees he received from applicants rather than turn the fees over to .the county. Although the state alleged the inspector had criminally obtained the money from the county, there was no evidence the county had a greater interest in the collected fees than the inspector had (there were no statutes governing how to handle the collected fees) and, in the absence of proof of an essential element of the crime of grand theft — that the property the inspector used or obtained belonged to the county — reversal, was required.

Conclusion

We conclude that the State failed to prove the requisite criminal intent to support the grand theft conviction. The State also failed to prove a person or entity had an interest in the funds superior to Isenh-our. Accordingly, the trial court erred in denying Isenhour’s motion for directed verdict. Isenhour’s conviction is reversed.

REVERSED.

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

      . All witnesses agreed that Silver Archer and Cambridge Academy were entirely separate entities and were carefully kept separate, apparently due to Cambridge Academy’s zealous efforts to retain its accreditation.

      . Prior to the trial, the State had agreed to allow Pulte to take the tax credits because it had given the money in good faith.

      . § 812.014(l)(a), Fla. Stat. (2003).

      . § 812.014(l)(b), Fla. Stat. (2003).

      . As Isenhour asserts on appeal, the tax credit was not a public fund and was not a fund of the Department of Revenue. See Bush v. Holmes, 886 So.2d 340, 356 (Fla. 1st DCA 2004) (" 'Tax exemptions and general subsidies, however, are qualitatively different [from the payment of state funds]. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and • uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes.’ ”) (quoting Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 690, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (Brennan, J., concurring) (footnotes and citations omitted)), approved in part, 919 So.2d 392 (Fla.2006).


text:
    Alan D. STOKES, Appellant, v. STATE of Florida, BOARD OF PROFESSIONAL ENGINEERS, Appellee.
    No. 1D06-4006.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    William H. Hollimon of Moyle Flanigan Katz Raymond White & Krasker, P.A., Tallahassee, for Appellant.
    Patrick Creehan, Tallahassee, for Appel-lee.
   PER CURIAM.

Alan D. Stokes appeals a final order of the State of Florida, Board of Professional Engineers finding that he was guilty of practicing engineering without a license and fining him $2,000. The Board improperly rejected findings of fact of the administrative law judge (ALJ), and rejected findings of fact after improperly labeling the findings as conclusions of law. Accordingly, we reverse.

The Board’s attention is directed to section 120.57(1)0), Florida Statutes (2005), contained within the Administrative Procedure Act, which defines the authority of the Board when reviewing the recommended order of the ALJ. This statute provides:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

This statute expressly precludes the Board from rejecting findings of fact that are based upon competent substantial evidence. “When competent substantial evidence in the record supports the ALJ’s findings of fact, ‘the agency may not reject them, modify them, substitute its findings, or make new findings.’ ” Walker v. Board of Professional Engineers, 946 So.2d 604, 605 (Fla. 1st DCA 2006)(quoting Gross v. Department of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002)). Moreover:

Erroneously labeling what is essentially a factual determination a “conclusion of law” whether by the hearing officer or the agency does not make it so, and the obligation of the agency to honor the hearing officer’s findings of fact may not be avoided by categorizing a contrary finding as a “conclusion of law.”

Kinney v. Dep’t of State, Div. of Licensing, 501 So.2d 129, 132 (Fla. 5th DCA 1987).

Accordingly, the final order is REVERSED and REMANDED with instructions that the ALJ’s recommended order be adopted as the final order of the Board. Stokes’ motion for attorney’s fees and costs pursuant to section 120.595(5), Florida Statutes (2005), is GRANTED.

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


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    Tamera FLETCHER, etc. et al., Appellant, v. HUNTINGTON PLACE LIMITED PARTNERSHIP, etc., Appellee.
    No. 5D06-580.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.

      Russell A. Dohan, of Goldberg & Dohan, L.L.P., Melbourne, and Pamela Beckham, of Beckham & Beckham, P.A., North Miami Beach, for Appellant.
    Thomas A. Valdez, of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellee.
   GRIFFIN, J.

Tamera Fletcher [“Fletcher”], in her capacity as the personal representative of the estate of Betty Nickless, appeals an order compelling arbitration of her claim against Huntington Place Limited Partnership, d/b/a Huntington Place Rehabilitation and Nursing Center [“Huntington”]. We find merit in two of Fletcher’s contentions on appeal.

The first issue — whether the arbitration agreement at issue is void as against public policy — is controlled by this court’s decision in SA—PG—Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006). In Stokes, this court considered contractual language very similar to that found in the arbitration agreement at issue in this ease. The Stokes court found that the inclusion of certain provisions in the Alternative Dispute Resolution Service Rules of Procedure for Arbitration of the American Health Lawyers Association [“AHLA”] were void as against public policy because they had the effect of superseding or dismantling the protections afforded patients by the legislature in the Nursing Home Resident’s Act, Chapter 400, Florida Statutes (2005). Huntington urges that Stokes, and the ease upon which it relied, Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA), review denied, 917 So.2d 195 (Fla.2005), were based on flawed reasoning. Instead, they urge the position taken by the First District Court of Appeal in Gainesville Health Care Center, Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003). Stokes, however, is the law of this district and has been followed by this court in at least one other case, 1501 SE 24-th Road, LLC v. Estate of Palma Pasqualini, 953 So.2d 13, 2007 WL 529827 (Fla. 5th DCA Feb. 13, 2007). Additionally, Weston does not address the issue decided in Stokes.

Huntington contends that the severability clause in subsection X(A) of their Admissions Agreement allows this court to sever the language in the arbitration clause requiring that the arbitration be “administered by the American Health Lawyers Association” in order to eliminate the offending rule of the AHLA, thereby salvaging the balance of the arbitration agreement. Based on our analysis of the agreement, however, it appears clear that the arbitration agreement reflects an intent that the parties arbitrate specifically with the AHLA. See Stokes, 935 So.2d at 1243; cf. Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 270 (Fla. 4th DCA 2006). There is no basis to eliminate a single rule.

Nor does it make sense for a court to remake Huntington’s agreement to excise the offending provisions. Given the nature of the relationship between a nursing home and its' patient, the courts ought to expect nursing homes to proffer form contracts that fully comply with Chapter 400, not to revise them when they are challenged to make them compliant. Otherwise, nursing homes have no incentive to proffer a fair form agreement.

We also agree with Fletcher that the manner of execution of the arbitration agreement by Fletcher precludes its enforcement. The Admissions Agreement, which contains the arbitration agreement, indicates that Fletcher did not sign the agreement in her capacity as her mother’s representative. She signed the document only in the space after the provision: “If someone controls funds or assets that can be used to pay the resident’s charges and wants to receive financial notices, that person should sign as agent.”

Because the trial court erred in compelling arbitration, we reverse and remand to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ„ concur.

      . We do not accept Huntington’s interpretation of the meaning of AHLA Rule 6.06.

      . We do not credit Huntington’s argument that AHLA Rule 1.05 constitutes a separate severability clause for the AHLA rules.

      . Another impediment to enforcement exists: the AHLA has amended its rules to provide: [T]he Service will administer a ‘consumer health care liability claim' under the Rules on or after January 1, 2004 only if all of the parties have agreed in writing to arbitrate the claim after the injury has occurred and a copy of the agreement is received by the Services at the time the parties make a request for a list of arbitrators.
      There is an exception if a court order requires the AHLA to administer an arbitration, but the appealed order contains no such requirement.


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    Denver Ivan WILSON, Petitioner, v. Randolph McCLEAN, Esquire, Respondent.
    No. 5D06-4010.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.
    Denver Ivan Wilson, Sanford, pro se.
    W.A. Randolph McClean of Jacobson, McClean, Chmelir & Ferwerda, Winter Springs, for Respondent.
   PER CURIAM.

Petitioner seeks mandamus to compel the return of evidence and documents allegedly in the possession of his former attorney, a special public defender. His former attorney says that he returned the items. Because the resolution of this matter involves factfinding, we hereby transfer this cause to the Circuit Court for Seminole County for resolution. See Olivera-Herrera v. Taylor, 920 So.2d 765 (Fla. 5th DCA 2006).

PETITION TRANSFERRED.

PLEUS, C.J., TORPY and EVANDER, JJ., concur.


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    Cornelius R. BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-71.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.
    Cornelius Bell, Wewahitchka, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Cornelius R. Bell seeks review of the trial court’s summary denial of his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied Mr. Bell’s motion in a written order rendered November 27, 2006. Mr. Bell’s notice of appeal was not filed under the “mailbox rule” until December 29, 2006. Accordingly, this Court ordered Mr. Bell to show cause why the untimely appeal should not be dismissed for lack of jurisdiction.

In his unsworn response, styled as “Motion to Accept as Timely Appellant’s Notice of Appeal,” Mr. Bell claimed that he was a victim of internal prison policies regarding inmate use of the prison law library. Mr. Bell contends that he “diligently” attempted to schedule time in the prison law library, however, his first such attempt was “ignored” by prison staff. He argues that this fact, coupled with “the Holiday Schedules” and Gulf Correctional Institution’s status as a “restricted movement compound,” should provide a sufficient basis for this Court to accept his notice of appeal as timely filed. Alternatively, Mr. Bell asks this Court to treat his response/motion as a belated appeal petition.

We dismiss for lack of jurisdiction. Mr. Bell had thirty days from the rendition of the trial court’s denial order to file his notice of appeal. See Fla. R.Crim. P. 3.850(g). He failed to meet the deadline by two days. In his response, he does not deny his failure in this regard; he only argues that he was hamstrung by internal prison policies regarding access to the prison library. Such claims in an unsworn response are insufficient for purposes of bestowing jurisdiction on this Court to entertain the instant appeal. See, e.g., Smartmays v. State, 937 So.2d 712 (Fla. 5th DCA 2006).

Similarly, the unsworn nature of Mr. Bell’s response renders it insufficient to treat the response as a petition for belated appeal. See Fla. R.App. P. 9.141(c)(3)(F). Mr. Bell’s recourse is to file a proper petition for belated appeal, including a proper oath with this Court in an attempt to seek a belated appeal.

Appeal dismissed for lack of jurisdiction.

DISMISSED.

THOMPSON, ORFINGER and MONACO, JJ., concur.


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    K.P., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-749.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.

      James R. Russo, Public Defender, and Raylene Coe, Assistant Public Defender, Viera, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

In this juvenile proceeding, petitioner K.P. seeks from this court a writ of habeas corpus challenging an order of secure detention. Though it appears from the face of the order that he will already have been released from the fifteen-day secure detention that the trial court ordered, we consider it an issue capable of repetition and tending to evade review, so we will address it.- -

K.P. was originally placed on probation for the charge of possession of less than twenty grams of cannabis. He was later charged with violating probation. The January 20, 2007, risk assessment instrument for K.P. reflected a score of only three points, less than the score required for secure detention.

The trial court conducted a hearing on the alleged violation on February 23, 2007. The trial court found that K.P. had a serious drug problem and had admitted to using marijuana and cocaine on a daily basis, as confirmed by previous positive tests while on probation. The court also found that K.P., who is seventeen years old, had failed to attend school since the eighth grade and is a chronic truant. At the conclusion of the hearing, the trial court issued its disposition order revoking KP.’s probation, adjudicating him delinquent, and committing him to a moderate risk program. The court also ordered that he be held in secure detention for fifteen days before being placed indefinitely in home detention while awaiting placement into a moderate risk program.

In the instant petition, K.P. argues that the trial court erred in placing him in secure detention. Initially, he points out that under section 985.245(1), Florida Statutes (2007): “All determinations and court orders regarding placement of a child into detention care ... shall be based on a risk assessment of the child.” Additionally, section 985.27(l)(b), Florida Statutes (2007), which pertains specifically to po-stcommitment detention, provides, “A child who is awaiting placement in a moderate-risk residential program must be removed from detention within 5 days.... Any child held in secure detention during the 5 days must meet detention admission criteria under this part.” See also C.D.T. v. State, 920 So.2d 787 (Fla. 5th DCA 2006).

K.P. additionally asserts that the trial court lacked the discretion to order an adjudicated juvenile awaiting placement to a moderate risk commitment facility to be held in secure detention for more than the 5 days contemplated by section 985.27(l)(b) without a motion from the Department of Juvenile Justice based on specific information that a placement is imminent. See J.M. v. State, 705 So.2d 98, 99 (Fla. 5th DCA 1998) (“[A] court may only extend detention beyond 5 days pending a juvenile’s placement in a moderate risk facility if the department shows that it is necessary for placement purposes.”).

Although the trial court may have had meritorious reasons for keeping K.P. in secure detention for five days regardless of the recommendation of the risk assessment instrument, as the State properly concedes, the trial court failed to state clear and convincing reasons for a more restrictive placement, as required under section 985.255(3)(b), Florida Statutes (2007). See C.D.T.; see also §§ 985.245(1), .27(l)(b), Fla. Stat. (2007). And, as the State additionally concedes, the Department did not request that secure detention be extended an additional ten days beyond the original five days. See J.M. Consequently, K.P. would have been entitled to habeas corpus relief from the February 23, 2007, secure detention order. Because, however, by its terms, the order has expired, the petition is denied as moot.

PETITION DENIED.

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

      . See A.W. v. State, 711 So.2d 598 (Fla. 5th DCA 1998).

      . We note that the trial court's detention order was entered on February 23, 2007, but the habeas corpus petition was not received by this court until March 6, 2007, some eleven days later. This court’s show cause order was issued on the same date, with the attorney general being ordered to respond by 12:00 noon, Friday, March 9, 2007. Though the attorney general’s response was received some four hours late by this court at 4:10 p.m., it would seem that any delay in the instant case was attributable to K.P., not the attorney general.