author: SALCINES, Judge. ISOM, Associate Judge,

text:
    M.D.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2881.
    District Court of Appeal of Florida, Second District.
    March 21, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

M.D.B. appeals an order revoking juvenile probation, adjudicating him delinquent, and committing him to a moderate risk residential treatment facility with the Department of Juvenile Justice. Because we find the juvenile court abused its discretion in denying counsel’s motion for continuance and erred in failing to follow the proper procedure for appointment of counsel, we reverse and remand for a new probation revocation hearing.

M.D.B. was before the court for a pread-judicatory hearing in two juvenile cases. Without prior notice, the juvenile court added an arraignment to the docket on an unrelated allegation concerning M.D.B.’s violation of juvenile probation. That probation revocation matter is the subject of the present appeal.

Jonathan Saunders, an assistant public defender in the courtroom at the time of the preadjudicatory hearing conference, reminded the court that his office did not represent M.D.B. The previous day the court had granted the public defender’s motion to withdraw due to conflict. The court had appointed Lane Lastinger, a private attorney, to represent M.D.B. in the present case and several of M.D.B.’s other pending juvenile delinquency cases. The motion to withdraw had been granted on the public defender’s allegation that it had an ethical conflict.

At the preadjudicatory hearing the court inquired of Attorney Saunders concerning the ethical conflict of the public defender’s office. The inquiry was extremely abbreviated. The court merely asked, “Is [M.D.B.] okay with your representing him?” Attorney Saunders responded that he had spoken to the juvenile that morning but not about the conflict. There is no record evidence that M.D.B. was aware that Attorney Lastinger had been appointed to represent him. The court then conducted the following inquiry into the issue of M.D.B.’s waiver of conflict-free counsel prior to the arraignment on the probation violation:

COURT: Yesterday [I.F., a codefendant in several cases with M.D.B.] entered a plea. He didn’t have to go to trial or anything. Do you have any problems with Mr. Saunders representing you?
M.D.B.: No, ma’am.
COURT: You don’t have any problems?
M.D.B.: No, ma’am.
COURT: Because he had talked with your codefendant.

The only other statement made by M.D.B. in open court during the entire proceeding was in the afternoon when he waived his right to testify.

Thereafter, Attorney Saunders denied the probation violation on behalf of M.D.B. When he was told the revocation hearing was scheduled for the afternoon docket he made an oral motion for continuance based on the fact that he would not have time to prepare. The court denied the oral motion.

Prior to the afternoon probation revocation hearing, Attorney Saunders filed a written motion for continuance alleging that he had been given inadequate notice and opportunity to be heard, that counsel was unable to effectively confer with the juvenile, and that further time was needed for investigation in order for counsel to be effective. This second motion was also denied.

A court’s ruling on a motion for continuance is within the court’s sound discretion. An appellate court should not reverse the denial of a motion for continuance unless there has been a palpable abuse of judicial discretion that clearly and affirmatively appears in the record. See D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003). In the present case it is quite evident that the juvenile court abused its discretion when it denied the two motions for continuance because the public defender did not have the opportunity to prepare for the probation revocation hearing.

More troubling, however, was the court’s failure to follow the proper procedure for appointment of counsel. The public defender’s motion to withdraw for conflict had been granted and an alternate counsel had been appointed to represent M.D.B. the previous day. The record does not contain an order releasing the private attorney from representing M.D.B.

A cursory review of the court’s inquiry concerning whether the conflict continued or was waived makes it evident that the juvenile court’s inquiry on both accounts was woefully inadequate. The record does not contain an order reappointing the public defender in this matter. Clearly it was error for the juvenile court to require the public defender to represent M.D.B. without discharging private counsel and reappointing the Office of the Public Defender.

Accordingly, we reverse the order of adjudication and commitment and remand with directions to vacate the order and to conduct a new revocation of juvenile probation hearing in the present case. We note that on remand, if M.D.B. again is found to be in violation of his juvenile probation, the disposition order must address his entitlement to credit for time served.

Reversed and remanded.

STRINGER, J., Concurs.

ISOM, CLAUDIA R., Associate Judge, Concurs with opinion.

ISOM, Associate Judge,

Concurring.

I concur with the majority’s decision that the revocation of probation must be reversed and this matter must be remanded for a new hearing. In order to more fully understand the background of this case, I believe a more thorough recitation of the surrounding facts may be of assistance.

FACTS

On January 10, 2005, M.D.B. entered a plea of guilty to a charge of misdemeanor battery in case number CRC04-09189 and adjudication was withheld. On May 12, 2005, the juvenile court conducted a pread-judicatory hearing conference on two unrelated juvenile delinquency cases which were scheduled for disposition on May 18, 2005. It had been anticipated that at the preadjudicatory hearing conference M.D.B. would be entering a plea in those cases. However, when M.D.B. failed to enter a guilty plea, the juvenile court added an arraignment on the allegation of violation of juvenile probation in case number CRC04-09189. All parties appeared to have been under the mistaken impression that case number CRC04-09189 involved a felony battery.

As noted in the majority opinion, Assistant Public Defender Saunders was present in the courtroom at the time of the preadjudicatory hearing conference. He reminded the court that the previous day the court had granted the public defender’s motion to withdraw due to conflict and had appointed a private attorney to represent M.D.B. in case number CRC04-09189 and several other juvenile delinquency cases.

The court’s inquiry into the ethical conflict and waiver of that conflict is set out in the majority opinion. These colloquies evidence the juvenile court’s neglect to ensure that the conflict had been resolved or it had been knowingly waived by M.D.B.

In his unsuccessful oral motion for continuance, Attorney Saunders objected to the hearing being conducted that afternoon because he did not have time to prepare. He indicated that he did not even have a copy of the affidavit of violation of probation and would not have the opportunity to obtain transcripts of previous hearings or to subpoena witnesses on M.D.B.’s behalf.

In his written motion for continuance, Attorney Saunders alleged that he had been given inadequate notice and opportunity to be heard, that counsel was unable to effectively confer with the juvenile, and that further time was needed for investigation in order for counsel to be effective. This second motion was also unsuccessful. A record was made of Attorney Saunders’ assertions in support of the allegations in the motion and his argument that he needed to obtain the transcript of a previous hearing to confirm his belief that M.D.B. had already served fifteen days in secure detention for contempt of court based on the same allegations contained in the affidavit of violation. Although Attorney Las-tinger had not been discharged from the representation of M.D.B., counsel did not appear for the afternoon revocation hearing. The record does not contain an order reappointing the public defender to represent M.D.B. in case number CRC04-09189.

At the probation revocation hearing, two witnesses testified on behalf of the State: M.D.B.’s probation officer and his foster care custodian. No evidence or witnesses were presented on behalf of M.D.B. Despite conflicting and confusing testimony by M.D.B.’s foster care custodian, the court found his one day absence from school on April 22 to have been a willful and substantial violation.

ANALYSIS

A. Denial of Motions for Continuance.

With regard to the allegations that the juvenile court erred when it denied Attorney Saunders’ motions for continuance, it must be acknowledged that neither the Florida Statutes nor the Rules of Juvenile Procedure provide a time frame within which a juvenile probation revocation hearing must be conducted following arraignment. However, as a general rule, a probationer should be brought to hearing on an alleged violation as soon as is practicable. Regardless, such a hearing should occur no sooner than is fair. It is clear that M.D.B. was entitled to but did not receive “a hearing that meets the constitutional standards of fundamental fairness and due process.” § 984.01(l)(e)(l), Fla. Stat. (2005).

On the day of the probation revocation hearing, M.D.B. was scheduled to be released from custody after having served the second of two sentences imposed for indirect criminal contempt for violating court imposed sanctions prior to being placed on probation in case number CRC04-09189. Because of M.D.B.’s escalating behavioral referrals from school, his therapist’s inability to control M.D.B.’s behavior through medication, the lack of an effective foster care placement, and pending new law violations, the juvenile court may have wanted to expedite this proceeding in order to keep M.D.B. in continuous custody until he could be placed in a residential commitment facility. In denying Attorney Saunders’ written motion for a continuance, the court stated:

All right. This is a juvenile proceeding and this is a violation of probation. This is not a trial on a new charge. This is a ... hearing, an evidentiary hearing, on a violation of probation. The very nature of a juvenile who is on probation to correct some behavior that’s going on has to be done expeditiously.

Following the revocation hearing, Attorney Saunders asked the court about Attorney Lastinger’s appointment in order to determine who would be representing M.D.B. at the May 18, 2005, preadjudicatory hearing conference, the adjudicatory hearing, and commitment disposition. The court stated:

All right, let me tell you what we’re not going to have. On the day of [the adjudicatory hearing], we’re not going to have a substitution of counsel and I have to continue it. We’re not going to do that.

On May 18, 2005, M.D.B. entered a guilty plea to several misdemeanors and was committed to the Department of Juvenile Justice on those charges as well as on the revocation of probation in case number CRC04-09189. The name of the attorney who represented M.D.B. at that time is not in the record. After this, M.D.B. was detained an additional fifteen days pending placement in a moderate risk commitment program. If a continuance had been granted on May 12, 2005, this juggernaut may or may not have been spun off course. Nonetheless, both Attorney Saunders and M.D.B. were entitled to the opportunity to prepare an adequate defense. Attorney Saunders had approximately four hours to prepare. At the commencement of the afternoon court session, the court excused Attorney Saunders’ tardiness and acknowledged that counsel had been handling other responsibilities.

Based on the totality of the circumstances, clearly Attorney Saunders was given an inadequate amount of time in which to prepare a defense. See M.F. v. State, 920 So.2d 1252 (Fla. 2d DCA 2006). As in M.F., this was not a complex case, but the court’s actions prevented M.D.B. from receiving a hearing with fundamental fairness and due process.

As noted by the majority, generally the denial of a motion for continuance is within the sound discretion of the juvenile court. The action of the juvenile court will not be disturbed on appeal unless there is a clear showing that there has been a “palpable” abuse of discretion to the disadvantage of the accused or unless the rights of the accused might have been jeopardized by the continuance determination. See, e.g., Trocola v. State, 867 So.2d 1229, 1230-31 (Fla. 5th DCA 2004) (applying the standard of review in an adult proceeding). The “common thread” connecting cases finding a “palpable” abuse of discretion in the denial of a continuance seems to be that defense counsel must be afforded a reasonable opportunity to investigate and prepare any applicable defense. Id. at 1231. Such a “palpable” abuse of discretion is clearly present in this case. In denying the motions for continuance, the juvenile court failed to afford M.D.B. and his attorney the opportunity to investigate the allegations, review M.D.B.’s court file, subpoena witnesses, order a transcript of the previous contempt of court proceedings, and prepare for the probation revocation hearing.

B. Failure to Follow Proper Procedure Regarding Appointment of Counsel.

As the majority has held, the juvenile court also erred in requiring the public defender to provide representation for M.D.B. without discharging Attorney Las-tinger and reappointing the Office of the Public Defender. If the court had determined that the ethical conflict, which was the basis for the court appointing a special public defender, no longer existed, the court should have stated on the record its findings as to the ability to reappoint the Office of the Public Defender and discharge court-appointed counsel.

Furthermore, the juvenile court did not conduct an adequate inquiry into M.D.B.’s waiver of conflict-free counsel. Such a waiver must be established by clear, unequivocal, and unambiguous language. See United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). The record should demonstrate that a juvenile is aware of the conflict of interest, realizes that the conflict could affect the attorney’s defense, and knows of the court’s ability to appoint conflict-free counsel. See Larzelere v. State, 676 So.2d 394, 403 (Fla.1996); Forsett v. State, 790 So.2d 474 (Fla. 2d DCA 2001); United States v. Petz, 764 F.2d 1390, 1393-94 (11th Cir.1985); Garcia, 517 F.2d at 278.

Although the juvenile court should try to elicit narrative replies, the juvenile’s recorded verbal assent in response to a series of questions posed by the court could, in some instances, constitute an adequate waiver of the right to conflict-free counsel. The determination of whether there has been an intelligent waiver of the right to conflict-free counsel will depend upon the particular facts and circumstances found, including the background, experience, and conduct of the accused. Garcia, 517 F.2d at 277. I would encourage the juvenile court to inquire as to the extent of the attorney’s investigation of the facts, knowledge of the pertinent law, the presence or absence of influence or prejudice, and any other factor material to the case. An inquiry of the juvenile in order to determine whether the juvenile is waiving the right to conflict-free counsel freely, voluntarily, and knowingly would then be necessary. The colloquy should address not only the attorney’s ethical conflict but also other considerations including, but not limited to, age, emotional development, prior history of abuse or neglect, experience in previous juvenile prosecutions, educational background, the ability to confer with a parent or legal guardian prior to making the decision to waive conflict-free counsel, and the consequences of proceeding to a hearing with present counsel. I would suggest a judge presiding over a juvenile delinquency court develop a basic colloquy which could include the following inquiries:

Please state your name for the record. How old are you?
What is the last grade which you successfully completed?
Do you go to school now?
Do you know how to read and write?
Are you in any classes for kids with special needs, like emotional handicaps or learning disabilities?
Are you supposed to be taking any kind of medicine now?
If so, did you take this medicine today? What is the medicine for?
Have you had anything to eat today? Before coming to court, did you drink any alcoholic beverages or take any kind of drugs?
Do you feel like you know what you are doing?
Are you feeling ill today? If so, describe your illness.
Are you in full and complete control of yourself and able to make a good decision today even though you [took medicine] [skipped breakfast] [are not feeling well]?
Do you wish to give up your right to have an attorney who does not already know about your case from one of the other kids who were arrested?
Have you spoken to this attorney?
Does the attorney appear to be on your side?
Do you want him/her to be your attorney?
Does the attorney appear to know enough about your case so that you believe you will be able to have a fair hearing?
Are you allowing this attorney to represent you because you want to?
Did anyone threaten or force you to do this?
Before deciding that this attorney can represent you, did you have enough time to talk to your parent or legal guardian so that you are sure this is what you want to do?

I would also recommend that the court conduct a brief inquiry of the juvenile’s parent or legal guardian as to the same issues prior to determining the juvenile has made a knowing and intelligent, free and voluntary waiver of the right to conflict-free counsel. If a parent or legal guardian cannot be located, the court has the ability to appoint a guardian ad litem to represent the child’s interests in making this decision. If a juvenile is in foster care and the parent’s legal rights have not been terminated, the court should determine whether the parent has been summoned as required by section 985.219(5)(b), Florida Statutes, and take steps to ensure that the parent and the juvenile’s foster care worker are notified of all court proceedings. If the court finds the juvenile meets the standard for an informed waiver, the court should state on the record the basis for its decision.

      . When a juvenile receives a determinate sentence not to exceed the statutory maximum for such an offense, he or she is entitled to credit for "time served” in the juvenile detention center for the offense. See J.I.S. v. State, 930 So.2d 587 (Fla.2006).

      . Case numbers CRC05-02712 and CRC05-03497.

      . Case number CRC05-01226 (disrupting a school function, date of offense 2/4/05); case number CRC05-02403 (resisting arrest without violence, date of offense 3/18/05); case number CRC05-02712 (misdemeanor possession of marijuana, date of offense 3/31/05); case number CRC05-02826 (battery, date of offense 4/2/05); case number CRC05-02884 (misdemeanor possession of marijuana, date of offense 4/6/05); case number CRC05-03497 (resisting arrest without violence, date of offense 4/21/05).

      . When it was discovered that the charge in case number CRC04-09189 was a misdemeanor battery on which M.D.B.'s secure detention could not be continued, case number CRC05-3495 (leaving the scene of an accident involving personal injury) was added to the docket for an unscheduled detention hearing. The court found probable cause in that case and continued M.D.B. in secure detention until the May 18, 2005, adjudicatory hearing.

      . M.D.B. entered the foster care system six months prior to the hearing on the revocation of probation at the age of twelve having been removed from his mother’s care for neglect based on a lack of food and shelter. Prior to his removal, M.D.B. had a history of being tardy to school, but his serious truancy problem developed after he was taken into the care of the State of Florida. M.D.B. was diagnosed as having ADHD and prescribed Wellbutrin and Adderall as a result of a psychological evaluation evidently performed the same day as the battery which gave rise to this case. The November 16, 2004, battery was on a staff member of the shelter where M.D.B. and his siblings had been living since being removed from their mother's care. The incident occurred on the same day as M.D.B.’s adjudication of dependency and placement in foster care. The Department of Juvenile Justice (DJJ) predisposition reports note that M.D.B. had anger management and behavioral control problems which responded to the medication, and that M.D.B. suffered from headaches and was resistant to taking medication. The original plea of guilty to this charge was made without the presence of a parent, as evidenced by the plea form, and without the benefit of legal counsel, as evidenced by the disposition order. The original order of disposition in January 2005 placed M.D.B. on "judicial sanctions,” not probation; imposed probation-like sanctions; and retained jurisdiction. The journey from adjudication as a foster child placed under the protection of the Department of Children and Family Services to adjudication of delinquency and commitment to the DJJ took M.D.B. six months.

      . To demonstrate the confusion which occurred concerning the representation of M.D.B., the record contains the following exchange which took place between the court and the assistant court clerk following the afternoon revocation hearing:
      CLERK: Judge, yesterday you appointed another attorney?
      COURT: I know. But then — I mean, I guess we’re not — we're going to withdraw that appointment that was in the air. [M.D.B.] said that this—
      CLERK: Okay. So we’re going to vacate that new appointment?
      COURT: I mean unless Mr. Saunders comes back and says Mr. Gardner has decided otherwise.
      CLERK: I’ll just leave it.
      COURT: Just leave it and Mr. Saunders can let us know.

      . Foster children who are not in detention may miss breakfast if they come to court prior to going to school.


source: Caselaw Access Project

author: KLEIN, J.

license: Public Domain

text:
    Nicky GRUENBAUM, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-3048.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2007.
    Nicky Gruenbaum, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Gruenbaum has filed a petition alleging ineffective assistance of appellate counsel for failing to file a rule 3.800(b)(2) motion to correct a sentencing error where the seoresheet erroneously included points for sexual penetration. Gruenbaum, who is over fifty years old, argues that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the jury did not find penetration, his seventy-two year sentences for multiple convictions of sexual battery should be reduced to sixty-five years.

Because Gruenbaum confessed to sexually penetrating the victim, did not contest the issue of penetration at trial, and acknowledged having a sexual relationship with the victim, a child, at sentencing, we conclude that the lack of a finding of penetration by the jury was harmless error. Our supreme court recently came to the same conclusion in Galindez v. State, 32 Fla. L. Weekly S89, — So.2d—, 2007 WL 471164 (Fla. Feb. 15, 2007), which involves strikingly similar facts, as well as the same error, lack of a jury finding of penetration. In Galindez the court relied on Washington v. Recuenco, — U.S.—, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), which held that harmless error analysis does apply to error under Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000).

The test applied by the Florida Supreme Court in Galindez, based on Recuenco, was whether it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty of penetration. We conclude that the error is harmless under this test and accordingly deny the petition.

STONE and HAZOURI, JJ., concur.


author: ORFINGER, J.

text:
    CITY OF CENTER HILL, Florida, etc., et al., Petitioner, v. Clyde McBRYDE, William Sander, et al., Respondent.
    No. 5D06-3456.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2007.

      Nicholas A. Shannin, Orlando, and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Petitioners.
    David A. Theriaque, S. Brent Spain and Timothy E. Dennis, of Theriaque Vorbeck & Spain, Tallahassee, for Respondents.
   ORFINGER, J.

Petitioners, City of Center Hill (“City”) and Sumter Cement Company, LLC (“SCC”), seek certiorari review of an order of the circuit court, sitting in its appellate capacity, which quashed an ordinance passed by the City annexing a parcel of SCC’s real property into the City. For the reasons explained hereafter, we deny the petition.

SCC owns 1,235 acres of land in unincorporated Sumter County. SCC petitioned the City to annex the property and to rezone it to permit the operation of a cement plant and lime rock quarry. Not surprisingly, Clyde McBryde and William Sander, the owners of nearby properties in unincorporated Sumter County, were not enthusiastic about SCC’s proposal and actively opposed it, citing noise, pollution and traffic concerns. Nonetheless, the City, after proper notice and a public hearing, approved the annexation ordinance and the rezoning request.

McBryde and Sander, unhappy with the City’s decision, sought certiorari review in the circuit court, arguing that the annexed property was not reasonably compact as required by statute, as it created a 100-acre “pocket” of unincorporated territory (“the parcel”) surrounded by hundreds of acres of municipal property. In response, the City and SCC argued that the annexed property was reasonably compact, as required by section 171.044, Florida Statutes (2005). After due consideration, the trial court granted certiorari and quashed the annexation ordinance, finding:

4. ... [I]t is clear from the proposed annexation map that the annexation results in creation of an impermissible pocket of unincorporated property surrounded by hundreds of acres of municipal property. Whether “small” or “big,” the City’s voluntary annexation departs from the essential requirements of law because the annexed property creates a pocket. Furthermore, the [City’s and SCC’s] argument that the annexation does not create a pocket is not supported by competent substantial evidence because [their] own expert did not know what a pocket was for the purposes of annexation.

The City and SCC seek certiorari review of this determination.

Circuit courts review annexation ordinances by certiorari. § 171.081, Fla. Stat. (2005); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006). In this first-tier review, the circuit court determines (1) whether the lower tribunal afforded the parties procedural due process; (2) whether the essential requirements of the law were observed; and (3) whether the lower tribunal’s action was supported by competent, substantial evidence. See Broward County v. G.B.V. Int’l., Ltd., 787 So.2d 838, 843 (Fla.2001); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). The parties may then seek second-tier certiorari review of the circuit court decision in the district court.

Second-tier certiorari review is not a matter of right and is similar in scope to common law certiorari review. See Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092-93 (Fla.2000). The scope of the district court’s review on second-tier certiorari is limited to whether the circuit court (1) afforded the parties procedural due process, and (2) applied the correct law. G.B.V. Int’l Ltd., 787 So.2d at 843. In other words, this two-pronged, second-tier review is simply another way of determining if the lower court “departed from the essential requirements of law.” Heggs, 658 So.2d at 530. A ruling constitutes a departure from the essential requirements of law when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)).

The district court may not review the record to determine whether the underlying agency decision is supported by competent, substantial evidence. City of Dania, 761 So.2d at 1093. Therefore, as a practical matter, the circuit court’s ruling in most first-tier cases is conclusive because second-tier review is so limited. Id. at 1092. Certiorari cannot be used to grant a second appeal or redress mere legal error; rather, it provides a safety net to correct a miscarriage of justice when no other remedy is available. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997).

Property annexed by municipalities must be contiguous, reasonably compact, and not create enclaves. See City of Sunrise v. Broward County, 473 So.2d 1387, 1389 (Fla. 4th DCA 1985). Specifically, section 171.044(1), Florida Statutes (2005), provides that “[t]he owner or owners of real property in an unincorporated area of a county which is contiguous to a municipality and reasonably compact may petition the governing body of said municipality that said property be annexed to the municipality.” “Any annexation proceeding in any county in the state shall be designed in such a manner as to ensure that the area will be reasonably compact.” § 171.031(12), Fla. Stat. (2005). “Compactness” means the “concentration of a piece of property in a single area and precludes any action which would create enclaves, pockets, or finger areas in serpentine patterns.” Id. However, section 171.013 does not define the terms “pockets” or “finger areas in serpentine patterns.” Instead, the only definition of the term “pockets,” in the context of annexation compactness, was provided by this Court in City of Sanford v. Seminole County, 538 So.2d 113 (Fla. 5th DCA 1989). In that case, the circuit court determined that an annexation was impermissible because the proposed annexation “tend[ed] to create pockets of unincorporated property....” Id. at 114. On review, this Court recognized that the annexation statute did not define the term “pockets.” Using the rules of statutory construction, this Court concluded that a pocket is “a small isolated area or group.” Id. at 115.

The City and SCC argue that the circuit court “vetoed” the City’s annexation ordinance based on an erroneous interpretation of the term “pockets.” They contend that the circuit court failed to follow the definition of the term adopted in City of Sanford, the single case defining that term. Specifically, the City and SCC argue that the circuit court applied a strained interpretation of the term “pockets” to the parcel, a 100-aere parcel that is neither “small” nor “isolated.”

In its order, the circuit court, while acknowledging the City of Sanford decision, determined that whether “big” or “small,” the City’s proposed annexation of SCC’s property improperly created a pocket. The City and SCC argue that the circuit court misapplied the law in reaching this conclusion. They contend that because the parcel, totaling almost one hundred acres, is “big,” it is not, by definition, a pocket as defined in City of Sanford, which must be “small and isolated. We disagree.

The issue of whether a parcel of property is “small” and “isolated” is relative to, and necessarily dependent upon, the size and configuration of the parcel and the surrounding municipal property. Size, be it small or large, is a relative term that can only be determined in relation to something else. Although we said in City of Sanford that a pocket is “a small isolated area or group,” we did so recognizing that whether a parcel is small and isolated must be determined in relationship to the overall scope and configuration of the parcel in question and the surrounding municipal property. The statutory requirement that pockets not be created by annexations was intended to insure that no vestiges of unincorporated property be left “in a sea of incorporated property.” Alison Yurko, A Practical Perspective About Annexation in Florida-Making Sense of Florida Statutes Chapters 16i and 171 in 2003 and Beyond, 32 Stetson L.Rev. 517, 533 (2003). Given the configuration of the City, SCC’s property, and the parcel, that is precisely what would occur here.

Should the annexation proceed, an impermissible pocket, albeit one of approximately one hundred acres, would be created. Given the scope of the overall annexation and the configuration of the properties, the parcel is, relatively speaking, small and isolated. Although in absolute terms the 100-acre parcel is not insignificant, relative to the 1,235 acre annexation, a pocket is created. We conclude that the circuit court’s order properly applied the statutory requirement that annexations be compact.

CERTIORARI DENIED.

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

      . The circuit court also quashed an ordinance rezoning the subject property (Ordinance OS-17), and an ordinance granting SCC a conditional use permit authorizing the annexed property to be used as a limerock mine and cement plant (Ordinance 05-18). However, the City and SCC only challenge that portion of the circuit court order quashing the annexation ordinance (Ordinance 05-07).

      . In City of Sunrise v. Broward County, 473 So.2d 1387, 1388 (Fla. 4th DCA 1985), the court explained the purpose of the compactness requirement:
      In order to understand the concepts of compactness and the prohibition against the creation of enclaves in the context of annexation proceedings, it is helpful to consider the general purpose and goals of a municipal corporation as described by the attorney general in his opinion at 077-18, quoting from 56 Am.Jur.2d Municipal Corporations, Etc. § 69:
      The legal as well as the popular idea of a municipal corporation in this country, both by name and use, is that of oneness, community, locality, vicinity; a collective body, not several bodies, a collective body of inhabitants-that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places. So, as to territorial extent, the idea of a city is one of unity, not of plurality; of compactness or contiguity, not separation or segregation.
      1977 Op. Att’y. Gen. Fla. 077-18, (February 18, 1977) atp. 38.
      (Emphasis in original).

      . McBryde and Sander aptly describe the unincorporated parcel as looking like a balloon on a string, should the annexation proceed.

      . "It isn't the size that counts so much as the way things are arranged.” E.M. Forster, Howard’s End 88 (Barnes & Noble Classics ed„ New York 1993) (1910).

      .We find no merit in the remaining issue argued by the City and SCC.


author: PER CURIAM.

text:
    D.H., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4522.
    District Court of Appeal of Florida, First District.
    March 26, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin and John Hedrick, Assistant Public Defenders, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

D.H. appeals an involuntary commitment order entered pursuant to section 985.223(3), Florida Statutes (2005). An involuntary commitment order is not a final appealable order for which this court has jurisdiction under rule 9.030(b)(1), Florida Rules of Appellate Procedure. Considering the liberty interest at stake, though, we elect to treat this appeal as a petition for writ of certiorari. See M.H. v. State, 901 So.2d 197, 198 (Fla. 4th DCA 2005).

Section 985.223(3), Florida Statutes (2005), states:

If the court finds that a child is mentally ill ... and adjudicates the child incompetent to proceed, the court must also determine whether the child meets the criteria for secure placement. A child may be placed in a secure facility or program if the court makes a finding by clear and convincing evidence that:
(a) The child is mentally ill and because of the mental illness ...:
1. The child is manifestly incapable of surviving with the help of willing and responsible family or friends, including available alternative services, and without treatment or training the child is likely to either suffer from neglect or refuse to care for self, and such neglect or refusal poses a real and present threat of substantial harm to the child’s well-being; or
2. There is a substantial likelihood that in the near future the child will inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm; and
(b) All available less restrictive alternatives, including treatment or training in community residential facilities or community settings which would offer an opportunity for improvement of the child’s condition, are inappropriate.

When a trial court fails to make the required findings to involuntarily commit a child under section 985.223(3), it departs from the essential requirements of the law, and the appellate court should grant a petition for a writ of certiorari. See M.H., 901 So.2d at 201.

Here, the trial court found that D.H. has a mental illness, and noted his troubling recent behavior which indicates a substantial likelihood that he will inflict serious bodily harm on others. Further, the trial court stated that involuntary commitment is the least restrictive alternative. While we might find the evidence presented here less than clear and convincing, “our task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact.” In re Adoption of Baby EA.W., 658 So.2d 961, 967 (Fla.1995). Because we conclude that competent and substantial record evidence supports the trial court’s determination that D.H. meets the criteria for involuntary commitment by clear and convincing evidence, we deny the petition for writ of certiorari.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

HAWKES, THOMAS and ROBERTS, JJ., concur.


author: CORTINAS, Judge.

text:
    Oscar MORALES, James Esserman & Rafael Perez MD, LLC and VitalMD Group Holding, LLC, Appellants, v. Rafael J. PEREZ, M.D., Appellee.
    No. 3D06-2588.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Shutts & Bowen and Jonathan Cohen and Anaysa Gallardo, Miami, for appellants.
    Zumpano Patricios & Winker and Leon N. Patricios, Miami, and Sarah E. Gold-mann, for appellee.
    Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
   CORTINAS, Judge.

The defendants, (1) Oscar Morales, James Esserman & Rafael Perez MD, LLC (“MEP LLC”) and (2) VitalMD Group Holding, LLC (“VitalMD”), appeal a non-final order denying their motion to compel arbitration and to stay or abate the proceedings. We reverse.

The plaintiff, Dr. Rafael Perez (“Dr. Perez”), is an obstetrician/gynecologist practicing in Miami, Florida. He was also a member and owner of VitalMD, which serves as a medical group practice holding company. Dr. Perez signed the VitalMD operating agreement (the “Operating Agreement”), which contained a provision that “any dispute under this Agreement” shall be resolved by arbitration.

VitalMD is the owner of numerous ob/ gyn care centers in South Florida, including MEP LLC, Phillips LLC, and Rafael Perez, M.D., LLC (“Perez LLC”). Dr. Perez served as an employee at Phillips LLC from August 2000 to December 2004. He signed an employment agreement with Phillips LLC (the “Phillips LLC Employment Agreement”), which also contained a binding arbitration provision. Subsequently, Dr. Perez was employed by MEP LLC from January 2005 to April 2005 and then worked as an employee at Perez LLC from August 2005 to June 2006. It is undisputed that Dr. Perez did not sign an employment agreement with either MEP LLC or Perez LLC, and worked under an oral employment agreement at both companies.

Pursuant to section 12.6 of the Operating Agreement, VitalMD assessed an administrative penalty of $16,000 against Perez LLC for Dr. Perez’s failure to sign the employment agreement with Perez LLC. VitalMD’s penalty against Perez LLC effectively reduced the amount of available funds for compensating Dr. Perez. Consequently, Dr. Perez resigned from Perez LLC and filed a complaint against the defendants. At the same time Dr. Perez filed the complaint, he also filed a separate demand for arbitration against Phillips LLC. Notably, most of Dr. Perez’s claims in the demand for arbitration are identical to the claims in the complaint against the defendants. Presently, the Phillips LLC arbitration is proceeding forward.

Dr. Perez attached as exhibits to the complaint a copy of the unsigned “MEP LLC Employment Agreement” and an accompanying “Employment Compensation Exhibit,” which sets forth the methodology to compensate employed physicians. Specifically, Dr. Perez alleged four counts in the complaint. Count I seeks a declaratory judgment against VitalMD that Vi-talMD’s failure to require MEP LLC to compensate Dr. Perez pursuant to the oral employment agreement violated 42 U.S.C. § 1395nn (the “Stark Law”) and Florida’s Patient Self-Referral Act (the “Self-Referral Act”), section 456.053, Florida Statutes (2002). Count I also alleges that the $16,000 penalty assessed against Perez LLC by VitalMD violated these statutes. Count II seeks a declaratory judgment against MEP LLC that MEP LLC’s failure to compensate Dr. Perez violated the Stark Law and the Self-Referral Act. Count III asserts claims against MEP LLC for breach of the oral employment contract. Count IV asserts claims against MEP LLC for unpaid wages. The defendants filed a motion to compel arbitration and stay or abate the proceedings, which the trial court denied.

We review an order denying a motion to compel arbitration de novo. Briceno v. Sprint Spectrum, L.P., 911 So.2d 176, 179 (Fla. 3d DCA 2005) (citing Tropical Ford, Inc. v. Major, 882 So.2d 476, 478 (Fla. 5th DCA 2004)). In ruling on a motion to compel arbitration, we are mindful of the policy favoring arbitration and recognize that any doubts concerning the scope of arbitration should be resolved in favor of arbitration. Prudential Secs., Inc. v. Katz, 807 So.2d 173, 174 (Fla. 3d DCA 2002) (citing Ronbeck Const. Co. v. Savanna Club Corp., 592 So.2d 344, 346 (Fla. 4th DCA 1992)).

We must address three issues in ruling on the defendants’ motion to compel arbitration. First, we must determine whether the parties agreed to arbitrate Dr. Perez’s declaratory judgment claims against VitalMD for violations of the Stark Law and the Self-Referral Act. Second, we must determine whether MEP LLC may compel Dr. Perez to arbitrate the declaratory judgment, breach of oral contract, and unpaid wages claims in the complaint. Lastly, we must determine whether the instant action, if not subject to arbitration, should be stayed pending the outcome of the Phillips LLC arbitration proceeding.

Claims Against VitalMD

The Florida Supreme Court has held that, “even in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Seifert v. U.S. Home Corp., 750 So.2d 633, 638 (Fla.1999) (emphasis added) (finding that a wrongful death claim for an allegedly defective air conditioning system that distributed carbon monoxide emissions from the garage into a home was not covered by the arbitration clause in the sales contract). We expressly disagree with Dr. Perez’s contention that the “nexus test” only applies to broad arbitration provisions. It is evident from the language in Seifert that it did not reject the “nexus test” for narrow arbitration clauses but, instead, found that the “nexus test” applies to both narrow and broad arbitration provisions. Additionally, the Seifert court held that a dispute is subject to arbitration when, at a minimum, the resolution of the issue requires a reference to or construction of a portion of the contract. Id. at 639.

Here, Dr. Perez and VitalMD agreed to submit to arbitration “any dispute under [the Operating] Agreement.” Count I for declaratory relief against VitalMD for violations of the Stark law and the Self-Referral Act is a dispute concerning the practices and legality of VitalMD’s operations. Ultimately, resolution of this dispute will determine Dr. Perez’s rights under the Operating Agreement and potentially expose him to liability as a member/shareholder of VitalMD. Furthermore, Dr. Perez’s claim that the $16,000 penalty fee imposed by VitalMD was “illegal” raises an issue which requires an interpretation of section 12.6 of the Operating Agreement. Clearly, there is “some nexus” between Dr. Perez’s declaratory judgment claims against VitalMD and the Operating Agreement, and the resolution of his claims requires a reference to or construction of some portion of the Operating Agreement. Therefore, we find that Count I of the complaint should be resolved by arbitration.

Claims Against MEP LLC

Florida courts have recognized circumstances in which a non-signatory may compel a signatory to arbitration. See, e.g., Waterhouse Constr. Group, Inc. v. 5891 SW 64th Street LLC, 949 So.2d 1095 (Fla. 3d DCA 2007) (holding that non-signatories may compel arbitration based on agency principles); Armas v. Prudential Secs., Inc., 842 So.2d 210 (Fla. 3d DCA 2003) (holding that a non-signatory may compel arbitration based on principles of equitable estoppel); Shetty v. Palm Beach Radiation Oncology Assocs.Sunderam K. Shetty, M.D., 915 So.2d 1233 (Fla. 4th DCA 2005) (holding that non-signatories may compel arbitration based on principles of equitable estoppel); Koechli v. BIP Intern., Inc., 870 So.2d 940 (Fla. 1st DCA 2004) (holding that non-signatories may compel arbitration based on agency principles); Tenet Healthcare Corp. v. Maharaj, 787 So.2d 241 (Fla. 4th DCA 2001) (holding that non-signatories may compel arbitration based on agency principles). In Shetty, the Fourth District reversed the trial court’s order denying arbitration because the claims pending in the plaintiffs complaint arose out of the “same operative facts” and were “inextricably linked” to the pending arbitration claims. Shetty, 915 So.2d at 1235. Like the instant case, the plaintiff in Shetty was compelled to arbitrate pursuant to an arbitration agreement. Id. at 1234. However, the plaintiff also filed a lawsuit against a non-signatory to the arbitration agreement. Id. Although the trial court recognized that there would be significant overlap in discovery and potentially inconsistent rulings, the trial court denied the defendant’s motion to compel arbitration. Id. In reversing the trial court, the Fourth District’s decision was based on its finding that the plaintiffs claims for misappropriation of funds and improper billing practices were “predicated upon the same allegations and necessarily involve the same factual determinations” as the claims subject to arbitration. Id. at 1235.

Here, MEP LLC, a non-signatory to the Operating Agreement, may compel arbitration of Dr. Perez’s declaratory judgment claim. Dr. Perez seeks declaratory relief, alleging that MEP LLC’s failure to compensate him violated the Stark Law and the Self-Referral Act. Undoubtedly, the declaratory judgment claim against MEP LLC will be based on the “same operative facts” and is “inextricably linked” to the declaratory judgment claim against VitalMD which, as stated above, is subject to arbitration. Moreover, submitting this claim to arbitration avoids the possibility of inconsistent rulings by the trial court and the arbitrator. Thus, we find count II should be resolved by arbitration.

We also find that counts III and IV of the complaint are subject to arbitration. Although Dr. Perez never signed the MEP LLC Employment Agreement, he is seeking to enforce paragraph 4.1 of said agreement, which provides that the “Company agrees to pay Employee[s] as set forth in the Employment Compensation Exhibit.” Furthermore, the MEP LLC Employment Agreement and the MEP Employment Compensation Exhibit are identical to the Phillips LLC Employment Agreement and the Phillips LLC Employment Compensation Exhibit. Dr. Perez’s claims for breach of contract and unpaid wages against MEP LLC are also virtually identical to the claims against Phillips LLC. Therefore, resolution of Dr. Perez’s breach of contract and unpaid wages claims in the complaint necessarily involve the same factual determinations as many of the pending Phillips LLC arbitration claims. Because both cases require virtually identical factual determinations, the potential for overlap and inconsistent rulings from two different entities is significant. Based on the foregoing reasons, we find that MEP LLC may compel Dr. Perez to arbitrate counts III and IV of the complaint.

Because all of Dr. Perez’s claims against VitalMD and MEP LLC should be resolved by arbitration, we need not determine whether the instant lawsuit should be stayed pending the outcome of the Phillips LLC arbitration. Accordingly, we reverse and remand with instructions to grant the defendants’ motion to compel arbitration.

Reversed and remanded.

      . Section 12.6 of the Operating Agreement provides for administrative sanctions of up to $500 per day for failure of a member or principal physician to cooperate in the production of documents or completion of applications and agreements.

      . Dr. Perez is attempting to avoid the arbitration provision of the MEP LLC Employment Agreement by arguing that he only had an oral contract with MEP LLC, while simultaneously seeking to enforce certain provisions purportedly in his favor.

      . We are mindful of Dr. Perez’s contention that the cases are not inextricably linked because a separate accounting is necessary to resolve the Phillips LLC and MEP LLC disputes; however, we find that the need for two accountings is not dispositive. Cf. Shetty, 915 So.2d at 1235 (where the Fourth District noted that the pending arbitration proceeding was inextricably linked to the lawsuit because there was a need for one accounting to resolve both disputes).


author: STRINGER, Judge.

text:
    James WIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5129.
    District Court of Appeal of Florida, Second District.
    March 28, 2007.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

We affirm Wiggs’ convictions and sentences without prejudice to Wiggs filing a timely and facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. See Lepper v. State, 826 So.2d 363 (Fla. 2d DCA 2002).

Affirmed.

CANADY, J., and THREADGILL, EDWARD F., Jr., Senior Judge, Concur.


author: VILLANTI, Judge.

text:
    Steven KRANIAS and Tina Kranias, Petitioners, v. Dimitrios TSIOGAS a/k/a Jimmy Tsiogas; Pogoni Land Trust, LLC, Individually and as Trustee; Pogoni Investments, LLC; Pogoni Management, LLC; and Epicurus, LLC, Respondents.
    No. 2D06-4503.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.
    Marcus A. Castillo of Haas & Castillo, P.A., Clearwater, for Petitioners.
    Timothy W. Weber and Mark P. Stopa of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Respondents.
   VILLANTI, Judge.

The petition for writ of certiorari is dismissed with respect to the documents previously produced to the respondents. The petition is denied with respect to the documents withheld from the respondents. This opinion has no effect on the petitioners’ emergency motion for in camera inspection filed in the circuit court nor any order resulting from that motion.

Dismissed in part; denied in part.

CASANUEVA and SALCINES, JJ., Concur.


author: DANAHY, PAUL W., Senior Judge.

text:
    STATE of Florida, Appellant, v. Felix PEREZ, Appellee.
    No. 2D06-638.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
   DANAHY, PAUL W., Senior Judge.

The State challenges the trial court’s grant of a motion to dismiss the information filed against Felix Perez on charges of burglary. Because the trial court based its ruling on an incorrect version of the statute of limitation, we reverse.

For offenses occurring on May 27, 1998, Perez was charged with burglary in violation of section 810.02(3), Florida Statutes (1997). Shortly after the offense, but before he was arrested for it, he was arrested on a New Jersey warrant in Pinellas County and was extradited to New Jersey. Later, following confirmation of fingerprint identification, an information was filed and a capias issued on March 8, 2000. The Clearwater Police Department then conducted a search and determined that Perez was in a New Jersey prison. The Department took no further action at that time. The record shows that Perez remained in New Jersey from August 1998 to September 2005.

On September 29, 2005, Perez was arrested in Pinellas County on the capias. Perez filed a motion to dismiss the information, alleging that the statute of limitation had expired because more than three years had elapsed between the filing of the information and the execution of the capi-as. The trial court granted the motion and the State appeals.

We review de novo the trial court’s order granting Perez’s motion to dismiss. State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when there are no material facts in dispute. Id. In this case, the parties concede that there are no material facts in dispute.

In his motion to dismiss, Perez relied on State v. Mack, 637 So.2d 18 (Fla. 4th DCA 1994). The decision in Mack was based on that court’s interpretation of the 1981 version of section 775.15, Florida Statutes, which provided:

(2)(b) A prosecution [for felonies other than first degree] must be commenced within 3 years after it is committed.
(5) A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

In Mack, the circuit court found that the State failed to conduct a diligent search to determine Mack’s whereabouts, and that the delay caused by the State’s lack of effort was unreasonable. The district court affirmed. In the instant case, the trial court relied on Mack in granting Perez’s motion to dismiss. This was error.

Because the statute was significantly changed in 1997, prior to the date of Perez’s offense, the holding in Mack is not applicable here.

The applicable statute of limitation is that which was in effect at the time of the offense giving rise to the criminal charges. Brown v. State, 674 So.2d 738, 740 n. 1 (Fla. 2d DCA 1995). The date of Perez’s charged offense is May 27, 1998, therefore, the 1997 version of the statute, which became effective on July 1, 1997, applies. Ch. 97-90, § 7 at 521, Laws of Fla. Although the 1997 version of section 775.15(2)(b) still provides that prosecution must be commenced within three years of the commission of the crime, section 775.15(5)(b) significantly changes the application of that limitation:

A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capi-as, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendants absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

§ 775.15(5)(b), Fla. Stat. (1997). (Emphasis on language added in 1997). Section 775.15(6) was also significantly changed:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the'period of limitation otherwise applicable by more than three years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.

§ 775.15(6), Fla. Stat. (1997). (Emphasis on language added in 1997).

In this case, the prosecution was timely commenced because the information was filed on March 8, 2000, less than two years after the date of the offense, May 27, 1998. Although Perez was not arrested until September 29, 2005, he admits that, but for about three months, he was continuously out of the State of Florida for the entire period in question. As a result, under the circumstances of this case, sections 775.15(5)(b) and (6) tolled the statute of limitation for as long as Perez remained absent from Florida and relieved the State from any obligation to attempt to extradite Perez from New Jersey.

We therefore conclude that the trial court’s decision to grant Perez’s motion to dismiss was based on an application of an incorrect version of the statute and must be reversed.

Accordingly, we reverse and remand with directions to reinstate the information.

ALTENBERND and KELLY, JJ., Concur.

      . Perez argues that the 1997 version of section 775.15 does not relieve the State from having to conduct a diligent search. We agree. See Cunnell v. State, 920 So.2d 810, 813 (Fla. 2d DCA 2006). The “diligent search” requirement, however, was satisfied here, since the State, at all relevant times, knew Perez’s whereabouts.


author: CANADY, Judge. STRINGER, Judge,

text:
    Bertha JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4095.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Bertha Jackson appeals her sentence for aggravated battery with a deadly weapon. Jackson argues that the trial court erred in hearing testimony from the victim for purposes of sentencing without defense counsel present in the courtroom. Because Jackson did not preserve the issue for appeal as required by Florida Rule of Appellate Procedure 9.140(e), we affirm her sentence.

The record indicates that the trial court conducted part of the sentencing hearing without defense counsel present by hearing the victim’s testimony as it related to sentencing. After the victim testified, the trial court contacted defense counsel by telephone in open court and informed defense counsel of the victim’s testimony. Defense counsel did not object on the basis that the trial court erred in hearing the victim’s testimony in defense counsel’s absence. In addition, defense counsel did not object at the second sentencing hearing held two months later. Furthermore, Jackson’s appellate counsel did not raise this issue in Jackson’s motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

A defendant is entitled to the assistance of counsel throughout sentencing proceedings. Sandoval v. State, 884 So.2d 214, 215 (Fla. 2d DCA 2004); Smith v. State, 590 So.2d 1078, 1078 (Fla. 2d DCA 1991). However, rule 9.140(e) provides that “[a] sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to [rule] 3.800(b).” In Brannon v. State, 850 So.2d 452, 456 (Fla.2003), the court held that “the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [an appellant] from raising the error on direct appeal.”

In Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003), the appellant challenged his lack of representation at his resentencing. The First District acknowledged that the issue was unpreserved but held that it constituted fundamental error. The court recognized that unpreserved sentencing errors are not to be entertained on appeal after the adoption of rule 3.800(b)(2). The court nevertheless held that “[t]he lack of representation is not a sentencing error, but rather a due process error.” 838 So.2d at 1243.

This court, however, has classified a claim of constitutional error affecting a sentencing proceeding as a claim of sentencing error which must be preserved in order to be raised on appeal. In Harley v. State, 924 So.2d 831, 832 (Fla. 2d DCA 2005), this court held that a claim of vindictive sentencing — a due process claim — that was not raised at sentencing or in a rule 3.800(b) motion could not be considered on appeal. The Fifth District reached the same conclusion regarding a vindictive sentencing claim in Allende v. State, 882 So.2d 472 (Fla. 5th DCA 2004). See also Summerlin v. State, 901 So.2d 997 (Fla. 2d DCA 2005) (holding that a claim that a defendant was improperly sentenced by a successor judge without a showing of necessity is a sentencing error that must be preserved by objection at sentencing or by a rule 3.800(b) motion); Hakkenberg v. State, 889 So.2d 935 (Fla. 2d DCA 2004) (same). See generally Griffin v. State, 946 So.2d 610 (Fla. 2d DCA 2007) (holding that defendant’s claim that evidence presented at sentencing hearing was inadmissible was not subject to preservation as a sentencing error pursuant to rule 3.800(b)).

Based on Harley’s treatment of a due process claim as a claim of sentencing error, we disagree with the reasoning of Gonzalez. We thus conclude that Jackson’s claim that her lack of representation at sentencing violates due process is a claim of sentencing error and therefore should have been preserved for appeal as required by rule 9.140(e). We certify pursuant to article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi) that this decision is in direct conflict with the First District’s decision in Gonzalez.

Affirmed; conflict certified.

LaROSE, J., Concurs.

STRINGER, J., Concurs specially.

STRINGER, Judge,

Specially concurring.

I concur with the majority’s affirmance of Jackson’s sentence in this case because any alleged error was not preserved. I write because I disagree with the majority’s assertion that this type of error could have been preserved by means of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

Rule 3.800(b)(2) permits a party to file a motion to correct a “sentencing error” while an appeal is pending and before the party’s initial brief is due. The court commentary to the rule defines “sentencing errors” for purposes of the rule as including “harmful errors in orders entered as a result of the sentencing process” and “errors within the sentence itself.” Fla. R.Crim. P. 3.800 court cmt.; see also Amendments to Florida Rules of Criminal Procedure S. 111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.14-0, & 9.600, 761 So.2d 1015, 1019 (Fla. 2000). In discussing the use of rule 3.800(b)(2), the supreme court identified various “sentencing errors” that should be preserved by a motion pursuant to rule 3.800(b)(2), including sentences exceeding the statutory maximum, habitualization in violation of the statutory requirements, scoresheet errors affecting the length of sentence, erroneous imposition of minimum mandatory sentences, deviation between the written and oral judgments and sentences, improper departure sentences, and improper imposition of costs. Maddox v. State, 760 So.2d 89, 101-10 (Fla. 2000).

While I do not suggest that the list of sentencing errors identified in Maddox is, or was intended to be, an exhaustive list of every conceivable “sentencing error,” each of the types of errors identified in Maddox meets the definition of a “sentencing error” provided in the court commentary to rule 3.800(b)(2) and discussed in its opinion adopting the rule. See Amendments, 761 So.2d at 1019. Thus, under my reading of the court commentary to rule 3.800(b)(2) and Maddox, I believe that a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself — not any error that might conceivably occur during a sentencing hearing.

In light of this distinction, I do not agree with the majority that the error in this case could be properly preserved under rule 3.800(b)(2). Jackson’s lack of representation at the sentencing hearing is not a harmful error in an order entered as a result of the sentencing process. It is also not an error within the sentence itself. Instead, Jackson’s lack of representation constitutes a due process violation that occurred at the sentencing hearing and which was subject to the contemporaneous objection rule.

Recently, this court noted that rule 3.800(b)(2) “was not intended to circumvent rules requiring contemporaneous objections or enforcing principles of waiver.” Griffin v. State, 946 So.2d 610, 613 (Fla. 2d DCA 2007). Instead, it was intended to address the problems that arise from sentencing errors that “ ‘are not immediately apparent at sentencing.’ ” Amendments, 761 So.2d at 1016 (quoting Amendments to the Fla. Rules of Appellate Procedure, 696 So.2d 1103, 1105 (Fla.1996)). I do not believe that by adopting rule 3.800(b)(2) the supreme court intended to give a criminal defendant the right to stand mute in the face of obvious procedural irregularities at a sentencing hearing secure in the knowledge that if he or she is dissatisfied with the resulting sentence, he or she could resurrect objections to those procedural deficiencies in a subsequent 3.800(b)(2) motion.

I recognize that this court and others have issued opinions that provide less than clear guidance on the question of what types of errors can and cannot be preserved under rule 3.800(b)(2). However, given the language used by the supreme court when rule 3.800(b)(2) was created and adopted, I agree with the First District’s reasoning in Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003), that the lack of proper representation at a sentencing hearing is not a “sentencing error” that can be raised and preserved by a rule 3.800(b)(2) motion.

      . The Gonzalez opinion, which was issued pri- or to Brannon, relied on the general holding in Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001), that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b), which was approved in Brannon, 850 So.2d at 459.


author: BROWNING, C.J.

text:
    Victoria Denise WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0149.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

We affirm Appellant’s conviction and sentence for felony cruelty to animals, as the State produced evidence sufficient to overcome Appellant’s motion for judgment of acquittal. We reverse the order of restitution because the trial court lacked jurisdiction to enter such order, as Appellant had already filed her notice of appeal. See, e.g., Brantley v. State, 723 So.2d 909 (Fla. 1st DCA 1999). We note that, upon return of jurisdiction to the trial court, the trial court may conduct another restitution hearing. See id.

AFFIRMED in part, REVERSED in part, and REMANDED.

WEBSTER and PADOVANO, JJ., concur.


text:
    Keith PRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2813.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Peters v. State, 919 So.2d 624 (Fla. 1st DCA) (affirming revocation of community control, finding “testimonial hearsay” rule set forth in Crawford v. Washington, 541 U.S. 36,124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), inapplicable to revocation proceedings, and certifying question of great public importance to Florida Supreme Court), review granted, 924 So.2d 809 (Fla.2006).

KAHN, POLSTON and THOMAS, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Eric P. SWINSON, Appellee.
    No. 1D06-3443.
    District Court of Appeal of Florida, First District.
    March 30, 2007.
    Maria Elena Abate and Sandy P. Fay of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, and G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    J. Nixon Daniel, III, and Terrie L. Didier of Beggs & Lane, Pensacola, for Appel-lee.
   PER CURIAM.

Appellant, Citizens Property Insurance Corporation, appeals a final summary judgment and argues that the Valued Policy Law, as set forth in section 627.702, Florida Statutes, does not apply to condominium unit owners’ insurance policies. Because appellant waived this issue, we are constrained to AFFIRM.

DAVIS, HAWKES, and THOMAS, JJ., concur.


author:
CANADY, Judge.
      SILBERMAN, Judge,

text:
    STATE of Florida, Petitioner, v. Michael BRANHAM, Respondent.
    No. 2D06-3676.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Petitioner.
    Lawrence D. Shearer of McDonald & Shearer, P.A., Lakeland, for Respondent.
   CANADY, Judge.

The State seeks certiorari review of the trial court’s order determining that certain testimony is subject to the lawyer-client privilege. Because we conclude that the trial court’s ruling was erroneous and that the requirements for certiorari relief have been met, we grant the State’s petition.

I. Background

This certiorari proceeding arises from the prosecution of Michael Branham (the defendant) for the murder of his wife, Janette L. Branham (the victim). In the criminal proceeding, the defendant filed a “Notice of Exercise of Attorney-Client Privilege” with respect to certain communications between W. James Kelly, a practicing lawyer, and the defendant.

Prior to the defendant’s indictment, Kelly was subpoenaed by the State to give a sworn statement. After raising the issue of lawyer-client privilege, Kelly was instructed by a circuit judge to answer the State’s questions. Kelly then gave a sworn statement in which he testified that during the week preceding the victim’s death, the defendant told Kelly that he intended to kill the victim. After the defendant’s indictment, Kelly was listed by the State as a “person having information” with respect to the case.

In response to the defendant’s notice concerning Kelly, the State filed a motion seeking a determination that the communications between the defendant and Kelly were not subject to the protection of the lawyer-client privilege. After considering the circumstances surrounding the communication by the defendant to Kelly, the trial court entered an order determining that “the Defendant’s Exercise of Lawyer-Client Privilege is allowed.” The State now seeks to have this order of the trial, court quashed.

At the hearing on the State’s motion, Kelly testified that several months before the death of the victim, the Branhams began having marital problems and discussed filing for divorce. Because Kelly was a friend to both of the Branhams, Kelly made it clear to them that he would not represent either of them in the divorce proceedings. However, Kelly agreed to act as a “go-between” for the Branhams in their efforts to resolve their differences.

Sometime during the week prior to the victim’s death, Kelly went to the defendant’s house on a social visit. Kelly testified that he and the defendant were discussing the Branhams’ marital problems and that “some of [the discussion] was just shooting the breeze, some of it was just talk.” During the conversation, the defendant inquired if Kelly was his attorney and Kelly responded “Sure.” Immediately thereafter, the defendant stated that he was going to kill his wife. According to Kelly, the defendant’s threat occurred “right in the middle of the conversation.” The defendant subsequently repeated the threat several more times during their conversation. Kelly’s response to the defendant each time he made the threat was “You’re crazy. I don’t even want to hear it” and “Don’t talk like that.” When Kelly was asked whether he gave the defendant advice or counsel, Kelly testified:

I don’t think he was asking me. I don’t know what his intentions were. I just know what I replied to him was certainly not in the context of a criminal lawyer. As far as I know, the issue of what he was telling me, I didn’t think that had anything to do with anything going on. I mean, it just came whistling out of the clear blue.

Kelly also testified that the defendant never requested Kelly’s assistance to plan, commit, or get away with a crime.

When asked if he was “talking to [the defendant] as his attorney with regard[] to the divorce,” Kelly said “No.” When asked if he was “talking to [the defendant] strictly as a friend,” Kelly said “Yes.” Kelly further testified that he warned the victim concerning the threats made by the defendant. There was no testimony before the trial court indicating that in the conversation between the defendant and Kelly, the defendant either sought or received any legal advice concerning any matter.

The. trial court’s ruling that the lawyer-client privilege was applicable was based on the crucial determination that when Kelly “responded to [the defendant] indicating that he was his lawyer, he became such and [the defendant] had a right to rely on that affirmation.” In its certiorari petition, the State argues — as it did before the trial court — that the defendant neither sought nor received legal advice and that the lawyer-client privilege was therefore inapplicable.

II. Certiorari Jurisdiction

We have common law certiorari jurisdiction here because the trial court’s decision at issue would “ ‘substantially impair[] the ability of the [S]tate to prosecute its case’ ” and thereby cause irreparable prejudice to the State. State v. Pettis, 520 So.2d 250, 253 (Fla.1988) (quoting State v. Steinbrecher, 409 So.2d 510, 511 (Fla. 3d DCA 1982)). “[C]ertiorari review is appropriate” with respect to a “pretrial order excluding one of [the State’s] witnesses from testifying at trial ... because the [S]tate has no right to a direct appeal in the event the defendant is acquitted.” State v. Gerry, 855 So.2d 157, 159 (Fla. 5th DCA 2003). Certiorari relief will be granted only in “those situations where ‘there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Pettis, 520 So.2d at 254 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)).

III. The Basis for the Lawyer-Client Privilege

Section 90.502(2), Florida Statutes (2005), provides that “[a] client has a privilege ... to prevent any other person from disclosing ... the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” (Emphasis added.) Under section 90.502(l)(b), client is defined as “any person ... who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer.” (Emphasis added.)

The statute makes clear that the lawyer-client privilege only applies to communications if they “were made in the rendition of legal services to the client.” § 90.502(2). A person cannot be considered a client and therefore cannot obtain the protection of the lawyer-client privilege unless the person either “consult[ed] a lawyer with the purpose of obtaining legal services” or was “rendered legal services by a lawyer.” § 90.502(l)(b).

“The purpose of the [lawyer-client] privilege is to encourage clients to make full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The privilege “protects only those disclosures necessary to obtain informed legal advice.” Id. “[I]f a communication with a lawyer is not made with him in his professional capacity as a lawyer, no privilege attaches.” Skorman v. Hovnanian of Fla., Inc., 382 So.2d 1376, 1378 (Fla. 4th DCA 1980). Thus, the lawyer-client privilege “does not extend to every statement made to a lawyer.” Modern Woodmen of Am. v. Watkins, 132 F.2d 352, 354 (5th Cir.1942). A statement made “to [a] lawyer merely as a personal friend” is not subject to the privilege. Id.

IV. The Defendant Neither Sought Nor Received Legal Services

Here, the evidence before the trial court unequivocally established that in the conversation with Kelly at the defendant’s home, the defendant never asked for any legal advice and Kelly never gave any legal advice. The defendant did not “consult” Kelly “with the purpose of obtaining legal services,” and Kelly did not “render[ ] legal services” to the defendant. § 90.502(l)(b). The defendant’s statements to Kelly that the defendant intended to kill his wife were not “made in [connection with] the rendition of legal services to” the defendant. § 90.502(2). In ruling that the statements made by the defendant to Kelly were subject to the lawyer-client privilege, the trial court failed to apply the clear — and clearly applicable — provisions of sections 90.502(l)(b) and 90.502(2).

There is no legal basis for the trial court’s conclusion that because Kelly told the defendant that Kelly was the defendant’s attorney, the defendant was entitled to rely on the lawyer-client privilege. The lawyer-client privilege is not established by incantation. Nor does the privilege come into existence simply because a party believes that it exists.

Kelly was the defendant’s attorney in a then-pending negligence case, and Kelly had previously represented the defendant in other civil matters. But the existence of the lawyer-client relationship between Kelly and the defendant with respect to the negligence case and the other matters did not establish a lawyer-client relationship with respect to the matters discussed in the course of the conversation at issue here. That conversation was totally unrelated to any lawyer-client relationship between Kelly and the defendant. See United States v. Evans, 113 F.3d 1457, 1463 (7th Cir.1997) (“Regardless of [the attorney’s] prior lawyer-client relationship with [the defendant], [the defendant] simply failed to meet his burden of establishing that his present involvement with [the attorney] was with [him] in his capacity as a legal advisor.”).

V. Conclusion

The State’s petition is granted, the writ is issued, and the order on review is quashed.

Petition granted.

CASANUEVA, J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

SILBERMAN, Judge,

Specially concurring.

I concur in the majority opinion. I also note that section 90.502(4), Florida Statutes (2005), states as follows: “There is no lawyer-client privilege under this section when: (a) The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.” Thus, if Branham had consulted with Kelly to enable or to aid Branham in killing his wife, no privilege would apply.

The only evidence before the trial court in relation to the privilege issue was Kelly’s sworn statement and his hearing testimony. Branham did not testify or present other evidence that he was seeking legal advice from Kelly when he volunteered that he was going to kill his wife. Based on the evidence and the circumstances presented, I agree that the trial court erred in determining that the lawyer-client privilege applied.


author: TAYLOR, J.

text:
    Joseph J. NARDUCCI, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-940.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2007.
    Sean M. Wagner of the Law Offices of Sean M. Wagner, P.A., Melbourne, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
   TAYLOR, J.

Petitioner Joseph Nardueci seeks habe-as corpus review of the trial court’s denial of his motion to reduce bond set at $150,000 on each of two counts of lewd computer solicitation of a child, under Section 847.0135, Fla. Stat. (2006). We grant the petition, quash the order denying petitioner’s motion for reduction of bond, and remand for further bond proceedings.

Petitioner was charged with two counts of lewd computer solicitation. At first appearance, the court set bond at $150,000 per count, for a total bond of $800,000. Petitioner filed a motion to reduce bond, arguing that he has been declared indigent and that he is financially unable to post the bond as set.

During the hearing on the motion to reduce bond, petitioner’s testimony established the following: Petitioner and his family have lived in Interlachen, Florida since the late 1980’s. His only prior conviction was for a DUI in 1984. He has no record of a failure to appear for any court proceedings. He earns about $25,000 per year, and his wife earns about $17,000 per year. Petitioner has a few hundred dollars in savings and equity in his home of about $20,000. Petitioner owns a truck worth about $6,000, and his wife owns a car with an outstanding loan greater than the car’s market value. In sum, petitioner said that his financial circumstances are such that he could post a bond of about $25,000.

The state advised the trial judge that petitioner had confessed to the computer solicitation charges in this case. The judge said that he did not find the bond inappropriate in light of the easy access people' have to the internet. Defense counsel argued that this problem could be solved by imposing a condition of pretrial release that barred petitioner from using a computer for any reason, including the internet. The judge orally denied the motion to reduce bond, stating the following:

The only issue that I see to be disposi-tive of this hearing actually is the nature of the offense as it is supported by the Arrest Affidavit. I don’t think that there’s anyway you can protect members of the public, in particular[] the juvenile members of the public from persons ... who utilize a computer media ... as a means of solicitation, so ... I don’t think there’s anything inappropriate about the bond set here., I don’t think that the community is safe when people have such free[dom], ... and I mean you can walk into almost any place, residence, business, and find computer access, and I’m denying the motion to reduce the bond.

Petitioner acknowledges that matters concerning bail are generally left to the discretion of the trial court, and they are reviewed under an abuse of discretion standard. See Hernandez v. Roth, 890 So.2d 1173, 1174 (Fla. 3d DCA 2004). However, he argues that an abuse of discretion will be found when the trial court denies a motion to reduce bond for a reason that is not based on the criteria set forth in the statutes, rules, and case law governing bond actions and the evidence presented during the bond hearing. See generally Flores v. Cocalis, 453 So.2d 1198 (Fla. 4th DCA 1984); Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980). The setting of an excessive bond is the functional equivalent of setting no bond at all, and habeas corpus will lie in those circumstances. Id.; Dyson v. Campbell, 921 So.2d 692 (Fla. 1st DCA), review denied, 933 So.2d 520 (Fla.2006).

In Puffinberger v. Holt, 545 So.2d 900 (Fla. 4th DCA 1989), we held that the trial court abused its discretion in denying the defendant’s request to reduce her $200,000 bond upon the trial court’s stated reason that it would be “a disservice to the State” to grant a reduction. Id. at 902. We held that this was not proper criteria for considering bond reduction. Further, because the bond was excessive, based on the evidence, we said that it was tantamount to a denial of bail, in violation of Article I, Section 14 of the Florida Constitution. Id.

Here, the trial judge’s remarks indicate that he based his denial of bond reduction primarily on the nature of the computer solicitation charge. The judge found that the danger to juveniles in the community posed by the charge, in general, justified the $300,000 bond, which, in this case, is tantamount to no bond at all. This is similar to the judge’s conclusion in Puffinberger that it would be “a disservice to the State” to grant a bond reduction. The decision here appears to not have been based on legally relevant factors, such as petitioner’s financial resources, family ties, length of residence in the community, employment history, past and present conduct, and record of appearing or failing to appear at prior court proceedings. In addition, the court failed to consider defense counsel’s suggestion to bar petitioner’s access to the internet as a condition of the petitioner’s release.

Accordingly, we grant the petition for writ of habeas corpus, quash the order denying the motion for reduction of bond, and remand this case to the trial court with directions to hold a new hearing on the motion to reduce bond, with full consideration of those factors set forth in Good v. Wille, section 903.046, Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.131. See Puffinberger, 545 So.2d at 903.

STEVENSON, C.J., and GROSS, J., concur.