text:
    ST. MICHAEL’S ACADEMY, INC., Petitioner, v. The STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 3D07-805.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      James H. Greason, for petitioner.
    Leslie Hinds SWSurin and Kimberly Coward, for respondent.
    Before LAGOA, J., SCHWARTZ, and FLETCHER Senior Judges.
   PER CURIAM.

St. Michael’s Academy, a licensed child care facility, petitions this Court for review of an Emergency Order of Suspension. Because the facts alleged in the emergency order of suspension do not establish an immediate serious danger to the public health, safety or welfare, we grant the petition and quash the emergency order.

I. FACTUAL AND PROCEDURAL HISTORY

The petitioner, St. Michael’s Academy, Inc. (“St. Michael’s”), is a licensed child care facility operating in Miami-Dade County. On March 25, 2007, the Department of Children and Families (“DCF”) issued an Emergency Order of Suspension (the “order”) for alleged violations of section 402.301, et seq., Florida Statutes, and Chapter 65C-22, Florida Administrative Code. St. Michael’s petitioned this Court for review of the order, and filed an emergency motion for stay. This Court granted the stay pending disposition of this proceeding.

In the order, DCF relied upon four separate incidents to support the suspension of St. Michael’s license. First, DCF alleged that a three-year old child walked away from the center and onto the street on August 23, 2006. DCF imposed a $200 administrative fine for lack of direct supervision. St. Michael’s disputed the facts surrounding this incident, and an administrative hearing was scheduled for May 7, 2007. Second, on August 31, 2006, DCF fined St. Michael’s a $100 administrative fine for inadequate personnel records.

Third, on November 17, 2006, a mother alleged that her one-year old child had been bitten by another child while at St. Michael’s. A doctor found marks on the child “consistent with human bites,” and the police report noted “minor visible injuries.” DCF imposed an administrative $1000 fine, which St. Michael’s disputed. An administrative hearing was scheduled for May 7, 2007.

Finally, DCF alleged that on February 14, 2007, it discovered that St. Michael’s designated representative and director, Katrina Doughty, was employed at another day-care facility in violation of section 402.305, Florida Statutes and rule 65C-22.003(8), Florida Administrative Code. DCF alleged that “[i]t is evident from the documentation and interview statements in this case that St. Michael’s was intentionally operating without a credentialed director on-site and attempted to deceive the Department concerning this fact.”

Based on these incidents, DCF concluded that St. Michael’s continued operation was an immediate serious danger to the health, safety, and welfare of the children:

The facts and circumstances surrounding the events on August 23, 2006, and November 17, 2006, together with the Department’s February 2007 discovery that the facility has been operating without a credentialed facility director and has been actively concealing that fact, and the facility’s poor compliance history demonstrate an immediate and serious danger to the health, safety, and welfare of the children served by St. Michael’s.

Additionally, DCF concluded that St. Michael’s “has amply demonstrated that it will employ deception to evade compliance with facility minimum standards, thereby creating a serious potential for future harm. The Department does not believe that the facility will comply with any restriction or corrective action short of emergency suspension.”

II. ANALYSIS

In regard to licensing, emergency action may be taken under section 120.60(6) of the Florida Statutes:

6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if:
(a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and
(c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency’s findings of immediate danger, necessity, and procedural fairness are judicially renewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.

§ 120.60(6), Fla. Stat. (2006)(emphasis added). Thus, an emergency order of suspension must be based on a finding of “immediate serious danger.” Any such finding is subject to review pursuant to sections 120.60(6)(c), 120.68, Florida Statutes (2006), and Florida Rule of Appellate Procedure 9.100(c)(3).

An emergency order suspending a license must be based upon particularized facts showing that the licensee’s continued operation would pose an immediate serious danger to public health, safety or welfare. Broyles v. Dep’t of Health, 776 So.2d 340, 341 (Fla. 1st DCA 2001). Additionally, an emergency order suspending a license must present facts that: “i) the complained of conduct was likely to continue; ii) the order was necessary to stop the emergency; and iii) the order was sufficiently tailored to be fair.” Bio-Med Plus, Inc. v. Dep’t of Health, 915 So.2d 669, 672 (Fla. 1st DCA 2005). Immediacy of harm to the public need not be alleged if there are allegations of “sufficiently egregious past harm which are of a nature likely to be repeated.” Id. at 673. However, “[g]eneral conclusory predictions of harm are not sufficient to support the issuance of an emergency suspension order.” Daube v. Dep’t of Health, 897 So.2d 493, 495 (Fla. 1st DCA 2005).

In Bio-Med, the First District Court of Appeal quashed an emergency order revoking a prescription drug distributor’s license because the alleged facts did not establish immediate danger to the public health, safety or welfare as required by section 120.60(6)(b). The court found that the emergency order did not “contain a single, particularized allegation of a continuing public health or safety violation, or any allegations of harm or possible harm to any patient. The harm alleged ... [was] general and conclusory and related to action in excess of two years old.” Bio-Med, 915 So.2d at 673. The court found nothing in the emergency order to support either a “continuing or now present danger to the public health.” Id. at 674.

Given the requirements of section 120.60(6), we find that the order before us fails to demonstrate that St. Michael’s continuing operation poses an immediate serious danger to the public health, safety or welfare. First, the allegations concerning the August 23, 2006, incident do not identify particularized facts demonstrating an immediate danger. The emergency suspension order states that “the precise facts of this incident are not clear,” and no injuries are alleged in this incident. DCF imposed a fine, and St. Michael’s has requested a hearing. Regarding the November 17, 2006 incident, while the order alleges that a child was “severely bitten” at St. Michael’s, the order also states that the child only had “minor visible injuries” that were “consistent with human bites.” The order notes “conflicting statements” from the staff at St. Michael’s regarding the alleged incident. A fine was imposed and a hearing is pending. The factual allegations of this incident are contradictory and conclusory, and do not support a finding of an immediate serious danger. Moreover, the order does not present facts that the conduct complained of in both incidents was likely to continue.

Finally, the “factual” allegations surrounding the lack of a credentialed director are statements that “St. Michael’s was intentionally operating without a credentialed director on-site and attempted to deceive the Department concerning this fact.” While the order finds that St. Mi-chaels’ has “amply demonstrated that it will employ deception to evade compliance with facility minimum standards” which creates a “serious potential for future harm,” it contains no facts to support such allegations of intentional and deceitful conduct. Moreover, these allegations are merely speculative as to general unspecified future harm to the children at St. Michael’s.

This Court is not persuaded by concluso-ry predictions of future harm based on factual allegations which do not demonstrate an immediate danger. The Court also notes that the time gap between a number of the incidents and the order undercuts the immediacy of the alleged danger. Accordingly, the petition for review is granted, and the Emergency Order of Suspension is quashed.

Petition granted.

      . This Court has jurisdiction to review a non-final agency action pursuant to Rule 9.100(c)(3), Florida Rules of Appellate Procedure, and section 120.68, Florida Statutes (2006).


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Tina Marie HEARD, Appellant, v. Brian Andrew HEARD, Appellee.
    No. 5D06-2910.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    Rehearing Denied Oct. 2, 2007.
    Robert J. Wheelock, Eric Lee Benson and Michael B. Jones, of the Wheelock Law Firm, LLC, Orlando, for Appellant.
    Stewart Cohen, of Stewart Cohen, P.A., Orlando, for Appellee.
   ORFINGER, J.

Tina Marie Heard, the former wife, appeals the dismissal of her motion for relief from the final judgment dissolving her marriage to Brian Andrew Heard, the former husband. As explained below, we affirm.

In 2002, after considerable litigation, the former husband and the former wife entered into a marital settlement agreement, which was then incorporated into a final judgment dissolving their marriage. Among other things, the marital settlement agreement and final judgment required the former husband to pay child support to the former wife, although the agreed upon amount was approximately 37% less than what the guidelines would have otherwise required. Although it is unclear from the record why the parties agreed to this adjustment, it appears that it was based on the fact that the former husband had overnight visitation with the child approximately 35-40% of the time. Prior to being submitted to the trial court, the marital settlement agreement was approved by the child’s guardian ad litem, who recommended that it be adopted as it was in the child’s best interest.

Four years later, on behalf of the minor child, the former wife sought relief from the final judgment pursuant to Florida Family Law Rule of Procedure 12.540 and Florida Rule of Civil Procedure 1.540. The former wife alleged that she did not have the authority to contract away the minor child’s right to support in the amount required by the statutory guidelines. Under the facts of this case, we disagree. Given the fact that the former wife had access to all material financial information, the motion for relief from judgment was properly denied. See Ma-car v. Macar, 803 So.2d 707 (Fla.2001); Jacobs v. Jacobs, 868 So.2d 568 (Fla. 3d DCA 2004). Further, the child was represented throughout the proceedings by a guardian ad litem who specifically approved the agreement and urged the court to accept it. Our affirmance of the trial court’s order denying the former wife relief from judgment is without prejudice to any future attempt to seek a modification of the previously agreed upon child support.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


author: PER CURIAM. KAHN, J.,

text:
    Betty JEFFERSON as natural parent of Chakoa and Eugene Jefferson, Appellant, v. CITY OF LAKE CITY, Appellee.
    No. 1D06-1893.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Rehearing Denied Oct. 3, 2007.
    James V. Cook, Tallahassee, for Appellant.
    Victor M. Halbach of Marks, Gray, Con-roy <& Gibbs, Jacksonville, for Appellee.
   PER CURIAM.

We affirm the trial court’s order granting attorney fees to the appellee. Although the proposal in this case cites a nonexistent statute as its basis, the notice of proposal for settlement cites to the correct statute number. In our view, the correct citation in the notice to the statute governing settlement offers cures the defect in the proposal. Unlike the situation in the recent Florida Supreme Court decision in Campbell v. Goldman, 959 So.2d 228 (Fla.2007), which involved a failure to cite any statute at all in a proposal for settlement, the appellee in the present case attempted to cite the relevant statute, but merely made an apparent typographical error. Therefore, we do not believe Campbell compels reversal here.

AFFIRMED.

BARFIELD and PADOVANO, JJ., Concur.

KAHN, J., Dissents with opinion.

KAHN, J.,

dissenting.

Pursuant to the clear dictate of our supreme court, we should reverse the order on appeal. See Campbell v. Goldman, 959 So.2d 223 (Fla.2007). The holding in Campbell is not ambiguous:

[Sjtrict construction is applicable to both the substantive and procedural portions of the rule and statute. When read together the rule and statute provide parties with an unambiguous method for obtaining attorney fees. Section 768.79 provides a sanction against a party who unreasonably rejects a settlement offer. See Willis Shaw [v. Hilyer Sod, Inc.] 849 So.2d [276] at 278 [ (Fla.2003) ]. The plain language of the statute provides that an offer must state it is being made pursuant to this section. This is a mandatory requirement for this penal, fee-shifting provision.

Id.

As the majority notes, the appellee cited the correct statute in its “notice of proposal for settlement.” The Florida Rules of Civil Procedure, however, are clear and mandate that the “proposal” shall identify the applicable Florida law under which the proposal is made. See Fla. R. Civ. P. 1.442(c)(1). As the supreme court noted in Campbell, the offer of judgment statute is of like import and requires that the “offer” state that it is being made “pursuant to this section.” § 768.79(2)(a), Fla. Stat. (2006).

The proper result here may be viewed as strict, but it is certainly not harsh. Prudent counsel, being aware of existing case law in this district, see Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993), may have well made a tactical decision not to respond to the offer of settlement in this case, confident that, because the form of the offer was defective, no sanctions could flow from rejection of the offer. Moreover, the majority’s reliance upon an “apparent typographical error,” does not avail. One could just as easily say that extrinsic evidence exists (such as the “notice of proposal,” a paper not identified in the Rules of Civil Procedure) indicating that the recipient of the offer was well aware of the statute under which it was being made. Such a result cannot survive the supreme court’s Campbell decision.

I dissent.


author: PER CURIAM.

text:
    William BRUNNER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3819.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Rehearing Denied Oct. 2, 2007.
    William Brunner, pro se, for Petitioner.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the circuit court’s denial of his petition for writ of mandamus. Specifically, petitioner challenges the circuit court’s order imposing a lien on his inmate trust account and its determination that he was provided with all process due during his prison disciplinary proceeding.

Since the underlying action constitutes a collateral criminal proceeding, the circuit court did not have statutory authority to impose a lien for court costs and filing fees. See Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003); Crosby v. Fla. Parole Comm’n, 949 So.2d 1181, 1183 (Fla. 1 DCA 2007). Therefore, we GRANT this petition for writ of certiorari inasmuch as it contested the circuit court’s order imposing a lien and QUASH such order. However, we conclude that Petitioner’s due process claims are without merit. Consequently, we DENY that portion of the petition alleging due process violations.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


author: WALLACE, Judge.

text:
    Darryl M. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5625.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      Daniel F. Daly of Daly & Mills, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Darryl M. Smith appeals the judgments and sentences imposed on him after a jury found him guilty of trafficking in cocaine, trafficking in illegal drugs (hydrocodone), and possession of cannabis with the intent to sell. Mr. Smith raises two issues on appeal related to his conviction for trafficking in illegal drugs. We reject without discussion Mr. Smith’s argument that the State committed a Brady violation involving the evidence. However, because we agree with Mr. Smith that the trial court erred in denying his request to instruct the jury on his defense that he had a prescription for the hydrocodone, we reverse Mr. Smith’s judgment and sentence on the charge of trafficking in illegal drugs. We remand Mr. Smith’s case to the trial court for a new trial on that charge only.

On April 13, 2005, police officers entered Mr. Smith’s residence in accordance with a search warrant. At the residence, Mr. Smith assisted the officers in opening a safe in which the officers found a quantity of marijuana, cocaine, a loose Vicodin tablet, an unlabeled prescription bottle containing a quantity of Vicodin tablets, and another prescription bottle — labeled with Mr. Smith’s name — containing additional Vicodin tablets and two Xanax pills. A Vicodin tablet contains a mixture of acetaminophen and hydrocodone. Based on the weight of the Vicodin tablets, the State charged Mr. Smith with trafficking in illegal drugs (hydrocodone) in violation of section 893.135(l)(c)(l)(c), Florida. Statutes (2004).

At trial, Mr. Smith called the employees of two pharmacies to testify on his behalf. These employees testified that their pharmacies had filled a total of three Vicodin prescriptions for Mr. Smith. One employee testified that his pharmacy had filled two prescriptions in September 2004. The other employee testified that his pharmacy had filled one prescription in January 2005. Next, Mr. Smith took the witness stand in his own defense and testified that the Vicodin had been prescribed for him to treat pain stemming from a back injury that he had suffered several years earlier.

During the charge conference, Mr. Smith requested that the trial court instruct the jury on the “prescription defense,” i.e., that it was not illegal for him to possess the Vicodin tablets if he had a valid prescription for them. Mr. Smith argued that because the issuance of a valid prescription is a defense to simple possession of illegal drugs under section 893.18(6), the issuance of a valid prescription is also a defense to trafficking when the trafficking charge is based on possession of a qualifying amount of the illegal drug.

In accordance with rule 3.390(c) of the Florida Rules of Criminal Procedure, Mr. Smith submitted a proposed jury instruction in writing to the trial court. The trial court denied Mr. Smith’s request because the standard jury instructions for “Drug Abuse” offenses do not include an instruction on the prescription defense. See Fla. Std. Jury Inste. (Crim.) 25.1-.18. In a somewhat inconsistent decision, the trial court also ruled that Mr. Smith could argue his prescription defense to the jury and that any objection by the State to that argument would be overruled. Mr. Smith’s counsel declined to accept this ruling as an adequate substitute for the requested jury instruction, stating: “The problem is, [the jury is] not being instructed that that’s the law.”

In O’Hara v. State, 32 Fla. L. Weekly D1707, D1709, 2007 WL 2042821 (Fla. 2d DCA July 18, 2007), we recently determined that a defendant is entitled to have the jury instructed that it is “not illegal to possess hydrocodone if it had been prescribed” when charged with trafficking under section 893.135. In O’Hara, the appellant had presented evidence at trial that he had a valid prescription for the Vicodin tablets that formed the basis for the State’s trafficking charge against him. Id. at D1707. Further, the appellant had requested the trial court to instruct the jury that having a prescription was a defense to the trafficking charge. Id. The trial court denied the appellant’s request. Id. The appellant was convicted of the trafficking charge. Id. On appeal, he argued that the trial court erred by denying his request for a jury instruction on the prescription defense. Id. We reversed the conviction, reasoning that the appellant was entitled to the requested jury instruction, and we remanded the case to the trial court for a new trial. Id. at D1709.

Based on our decision in O’Hara^ we reverse the judgment and sentence imposed on Mr. Smith for trafficking in illegal drugs. We remand this case to the trial court for a new trial on only the charge of trafficking in illegal drugs. At his new trial, Mr. Smith shall be entitled to have the jury instructed on his prescription defense, provided that the evidence at trial would support such a defense. See Thomas v. State, 787 So.2d 27, 29 (Fla. 2d DCA 2001). In all other respects, we affirm the judgments and sentences imposed on Mr. Smith.

Affirmed in part, reversed in part, and remanded for a new trial.

WHATLEY and VILLANTI, JJ., concur.

      . See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the prosecution violates due process when it suppresses requested evidence that is material to guilt and favorable to an accused).

      .Although the State objected to the trial court giving the proposed instruction on the prescription defense, the State has not challenged the content of the proposed instruction either in the trial court or in this appeal. Therefore, we express no opinion on the content of the proposed jury instruction in this case.

      . We suggest that the Supreme Court Committee on Standard Jury Instructions in Criminal Cases may wish to consider proposing for publication and for use a standard jury instruction on the prescription defense.

      . In fairness to the able trial judge, we note that he did not have the benefit of our decision in O’Hara when Mr. Smith’s case went to trial.


text:
    John SHELTON, Appellant, v. Kellie Charlene SHELTON, Appellee.
    Nos. 2D06-1199, 2D06-1200.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2007.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Kellie Charlene Shelton, pro se.
   DAKAN, STEPHEN L., Associate Senior Judge.

In these consolidated appeals John Shelton (the former husband) challenges the final judgment awarding Kellie Shelton (the former wife) $15,811.53 as her net equitable share of the proceeds from the sale of the marital residence and the order finding him in contempt for his failure to pay child support. We reverse because the record does not support the general magistrate’s findings, approved by the trial court, that the former husband is indebted to the former wife for half the net sale proceeds of the marital residence and that the former husband had the present ability to pay child support arrearages to purge the contempt.

The parties executed a marital settlement agreement that the trial court incorporated into the final judgment of dissolution of marriage rendered March 21, 2002. The final judgment awarded the marital residence to the former husband and provided that the former husband would pay $506.75 per month as child support. Subsequently, the parties stipulated to a modification of the final judgment, which the trial court ratified by order of August 17, 2004. Among other things, the stipulation and order contained a plan for selling the marital home with a contingency for refinancing if the home should not be sold by September 15, 2004. The plan provided that the former husband was to pay the former wife her “equitable interest” in the home. It is unclear to what “equitable interest” the former wife was entitled because the former husband received sole ownership of the marital home under the terms of the original final judgment.

On March 25, 2005, the former wife filed a motion to set aside the parties’ stipulation for modification and the August 17, 2004 order ratifying it. The trial court referred the matter to a general magistrate who conducted a hearing and issued a report that found that “at the time the Stipulation for Modification of Final Judgment was executed ... there was no meeting of the minds.” The report recommended that the joint stipulation for modification be set aside.

The former husband filed exceptions to the magistrate’s report. After a hearing, the trial court entered an order denying the former husband’s exceptions to the magistrate’s report and approving the report. The trial court’s order concluded that the parties would now be “in the position they were in prior to the execution of the Stipulation and Order for Modification on or about August 17, 2004.” Thus, any claim the former wife had to an equitable share of the marital residence based on the August 17 stipulation and order was set aside along with the stipulation and order.

Thereafter, the former wife filed a motion for contempt alleging that the former husband was more than $8,000 in arrears in child support payments, that the former husband had sold the marital home without dividing the proceeds with her and asking, in addition to monetary relief, that the former husband be held in contempt and sentenced to a “reasonable period of incarceration.” The matter was referred by the trial court to the general magistrate. Following a hearing at which the former husband did not appear, the general magistrate issued a report finding that the former husband was “in willful indirect civil contempt” for his “refusal to pay court ordered payments” of child support. The magistrate also found that the former husband had sold the marital residence for $151,700, and that after satisfying mortgages, the net proceeds were $51,623.05. The magistrate made a finding that under the original final judgment “the Parties’ marital home remained in joint names and they became tenants in common with respect to same.” Based on that finding, the magistrate determined that the former wife’s share of the proceeds was $25,811.53 and that the former husband “should have available funds of $40,200.00 from the sale of the real estate” which he “could have used to pay the purge amount of $9,045.38” in child support arrearages. The magistrate also found that the former husband had already paid the former wife $10,000 of the proceeds from the house sale, leaving a net due of $15,811.53.

The trial court ratified and approved the general magistrate’s report and entered a final judgment against the former husband ordering him to pay the former wife $15,811.53, the amount the magistrate found to be the former wife’s net equitable share of the proceeds from the sale of the marital residence. The trial court also found the former husband in contempt for failing to pay child support “as previously ordered by this - Court’s Final Judgment dated March 2R 2002,” sentenced him to 179 days incarceration, and held that the former husband “may purge this contempt by paying a purge amount of $9,045.38 ... representing the arrearages in child support as found by the magistrate.”

The former husband first argues that it was error for the trial court to enter a money judgment for an obligation due only under the set aside stipulation and order of August 17, 2004. We agree. The original final judgment of dissolution of marriage awarded the marital residence to the former husband as part of the equitable distribution of assets. Although that provision of the final judgment was later modified to give the wife an interest in the residence, that stipulation was set' aside and the parties were restored to the position they were in before the stipulation. Thus, the original final judgment governs the rights and obligations of the parties here, and the former husband owned the marital residence with no obligation to share any proceeds of sale with the former wife. Accordingly, we reverse the trial court’s Final Judgment of February 10, 2006, ordering the former husband to pay $15,811.53 to the former wife as her net “share” of the sale proceeds of the marital residence.

The former husband next challenges the order finding him in contempt. Before an alleged contemnor can be ordered incarcerated, “the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.” Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985); see Fla. Fam. L.R.P. 12.615(e); Akridge v. Crow, 903 So.2d 346, 351 (Fla. 2d DCA 2005); Pompey v. Cochran, 685 So.2d 1007, 1015 (Fla. 4th DCA 1997). The magistrate made a finding that the former husband “should have” proceeds remaining from the sale of his home; however, the trial court abused its discretion in adopting that finding because it was based on speculation rather than evidence. See Collado v. Pavlow, 951 So.2d 69 (Fla. 5th DCA 2007) (stating that a trial court’s adoption and ratification of a general magistrate’s report and recommendations is reviewed for an abuse of discretion); Cerase v. De-whurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006) (stating that a magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or because the magistrate misconceived the legal effect of the evidence). Accordingly, we vacate the trial court’s March 26, 2006, Adjudication of Contempt, Order of Commitment and Writ of Bodily Attachment.

Reversed and remanded for further proceedings consistent with this opinion.

STRINGER and KELLY, JJ., concur.

      . The former husband claims to have requested a continuance. In light of our decision here we consider the issue moot.


author: POLEN, J.

text:
    GUNSTER, YOAKLEY & STEWART, P.A. and Daniel Hanley, Appellants, v. Charles McADAM, III, and Frank Gannett McAdam, individually, as Personal Representatives of the Estate of Charles Y. McAdam, Jr., and as Trustees of The Charles V. McAdam, Jr. Revocable Trust under Agreement dated June 5, 1998, Appellees.
    Nos. 4D06-1594, 4D06-1624.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Rehearing Denied Oct. 25, 2007.
    L. Louis Mrachek and Alan B. Rose of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for appellants.
    Steven M. Katzman and Alexandra Sierra-De Varona of Katzman, Wasserman & Bennardini, P.A., Boca Raton, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellees.
   POLEN, J.

Appellant Gunster, Yoakley & Stewart, P.A. (“Gunster Yoakley”) appeals a final judgment entered against it in the amount of $1,043,430. We affirm on all issues raised on appeal and cross-appeal.

Frank Gannett McAdam and Charles McAdam, III, individually, as personal representatives of the Estate of Charles V. McAdam, Jr., and as trustees of The Charles V. McAdam, Jr. Revocable Trust, brought an action against Gunster Yoak-ley, one of Gunster Yoakley’s probate attorneys and J.P. Morgan Trust Company, N.A., (“J.P. Morgan”). In their complaint, plaintiffs asserted claims of breach of fiduciary duty, constructive fraud, civil conspiracy, negligence and unjust enrichment. The substance of these accusations was that Gunster Yoakley wrongfully procured J.P. Morgan’s appointment as corporate fiduciary and caused the estate administration to be more expensive. As such, plaintiffs sought, among other things, recompense for all “avoidable probate expenses” and disgorgement of all fees paid to Gun-ster Yoakley by decedent Charles V. McAdam, Jr.

After settling their claims against J.P. Morgan, plaintiffs proceeded against Gun-ster Yoakley and ultimately won a $1.2 million jury verdict. The trial court, however, granted remittitur and entered final judgment of $1,043,430, including interest and costs. This appeal follows.

We have considered the issues raised by Gunster Yoakley on appeal, including its contentions that (1) it was not liable to the estate for administration expenses or damages arising out of the appointment of J.P. Morgan, (2) the trial court erred in denying its motion for partial summary judgment which was based on the issue of standing, and (3) the court erred in submitting a qualified personal-residence trust issue to the jury. As to the first point, we hold that reversal is not merited on any of the grounds argued by Gunster Yoakley because:

• Plaintiffs sought relief not available to them in probate and therefore could, contrary to Gunster Yoakley’s assertion on appeal, collaterally attack the appointment of J.P. Morgan. See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So.2d 1221 (Fla. 3d DCA 1991) (holding testator’s estate can maintain legal malpractice action against attorney who prepared the will of the deceased in order to address issues not remedied in probate court);

• The trial court did not err in submitting to the jury the question of whether Gunster Yoakley had a duty to fund a revocable trust during decedent’s lifetime as there was sufficient evidence that Gunster Yoakley implicitly agreed to do so. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) (“[T]he concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.”); see also Lane v. Cold, 882 So.2d 436, 438 (Fla. 1st DCA 2004) (holding action for breach of fiduciary duty may be maintained where, “A relationship exist[s] with respect to the acts or omissions upon which the malpractice claim is based,” and a party may demonstrate this relationship by showing that his attorney implicitly agreed to undertake these responsibilities); and

• The trial court did not abuse its discretion in denying Gunster Yoakley’s request for jury instruction, nor did the court err in making an award under the “wrongful act doctrine.” See In re Amendment to Rules Regulating Fla. Bar, 605 So.2d 252, 309 (Fla.1992) (providing that rules of professional conduct “are not designed to be a basis for civil liability”); see also Martha A. Gottfried, Inc. v. Amster, 511 So.2d 595, 598 (Fla. 4th DCA 1987) (“Where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.”) (quoting Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981)), quashed on other grounds, 421 So.2d 505 (Fla.1982).

Regarding the second issue, we hold that the trial court did not err in denying Gunster Yoakley’s motion for partial summary judgment as plaintiffs demonstrated they had standing to bring suit against Gunster Yoakley — Plaintiffs showed that their father’s intent, as expressed in his will, was frustrated by the negligence of Gunster Yoakley and that, as a direct result of such negligence, their legacy was diminished. See Hewko v. Genovese, 739 So.2d 1189, 1192 (Fla. 4th DCA 1999). We also hold that the trial court did not err in submitting to the jury the qualified personal-residence trust issue as the jury’s verdict on that matter was supported by sufficient evidence. See Tibbs, 397 So.2d at 1123.

Lastly, we address plaintiffs’ argument on cross-appeal, i.e., that the trial court erred in granting partial summary judgment in favor of Gunster Yoakley on plaintiffs’ family limited partnership (“FLP”) claim. We agree with the trial court and conclude that any FLP claim was too speculative to withstand summary judgment because there was insufficient proof of damages or source of funding. See Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441, 445 (Fla.1974) (stating that although precise proof of damages is not fatal to recovery of compensatory damages, lack of proof supporting monetary loss, or a speculative or conjectural claim, is) (citations omitted).

Based on the foregoing, we affirm the final judgment and we also affirm as to all other issues raised on appeal.

Affirmed.

STONE and GROSS, JJ., concur.


author: PALMER, C.J.

text:
    Andrew SUAREZ and Christina Suarez, Petitioner, v. KMD CONSTRUCTION, INC. and David Lee Hampton, Respondent.
    No. 5D07-389.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    Rehearing Denied Oct. 2, 2007.

      Andrea M. Fair and Kevin W. Fenton, of Wetherington, Hamilton, Harrison & Fair, P.A. Tampa, and Joseph M. Mason, Jr., of McGee & Mason, P.A., Brooksville, for Petitioner.
    A. Patricia Barwick, Spring Hill, and Shannon J. Laviano of Shannon J. Lavi-ano, P.A., Inverness, for Respondent.
   PALMER, C.J.

Petitioners, Andrew and Christina Suarez, have filed a petition seeking a writ of certiorari challenging two interlocutory trial court orders: (1) an order denying their motion to dismiss KMD Construction, Inc.’s count for an equitable lien and motion to dissolve KMD’s notice of lis pen-dens, and (2) an order granting KMD’s motion to strike their motion to require a bond and for an evidentiary hearing related thereto. Concluding that the trial court’s orders denying the motion to dissolve the notice of lis pendens and striking the motion to require bond and for an evidentiary hearing related thereto depart from the essential requirements of law and are causing irreparable harm to the Sua-rezes, we grant the petition as set forth herein.

The Suarezes and KMD entered into a written contract regarding the construction of a new home on the subject property. When disputes arose between the parties, construction was not completed by KMD. Instead, KMD filed a complaint and notice of lis pendens setting forth claims for breach of contract, unjust enrichment, and equitable lien.

The Suarezes filed a motion to dismiss the complaint, contending that KMD’s count for an equitable lien failed to state a cause of action. They also filed a motion to dissolve KMD’s notice of lis pendens, alleging that the lis pendens was invalid because KMD failed to state a good faith, viable claim for an equitable lien and, further, that the lis pendens was not based upon a duly recorded instrument. Finally, the Suarezes filed a motion to require KMD to post a bond and an evidentiary hearing related thereto.

After conducting a hearing, the trial court entered an order which denied the Suarezes’ motion to dismiss the count for an equitable lien and denied the motion to dissolve the notice of lis pendens. The trial court expressly determined that KMD’s pleadings were “founded on a duly recorded instrument.”

KMD then filed a motion to strike the Suarezes’ motion to require bond and evi-dentiary hearing as moot. The motion was granted by the trial court. The Sua-rezes seek certiorari review of these orders.

Certiorari review is available for the trial court’s order denying the motion to dissolve a notice of lis pendens. See Lennar Florida Holdings, Inc. v. First Family Bank, 660 So.2d 1122 (Fla. 5th DCA 1995). Certiorari review is also available for the order on the motion to strike the motion to require bond and the evidentiary hearing related thereto. However, certiorari review is not available to review the trial court’s order denying the motion to dismiss the equitable lien count because an adequate remedy of law exists for review of that decision at the conclusion of the case. See Martim-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.l987)(hold-ing that the denial of a motion to dismiss is generally not reviewable by certiorari); Cuneo v. Conseco Servs., LLC, 899 So.2d 1139 (Fla. 3d DCA 2005)(declining to entertain a petition for certiorari with regard to that portion of a trial court’s order denying a motion to dismiss an equitable lien claim).

In challenging the trial court’s orders, the Suarezes first argue that the trial court erred in denying their motion to dismiss because KMD did not sufficiently allege a good faith, viable claim for an equitable lien. Since certiorari relief is not available to address any error in the trial court’s decision to deny the Suarezes’ motion to dismiss the equitable lien count, the petition for certiorari based on that allegation is denied.

The Suarezes further argue that they are entitled to receive certiorari relief on the basis that KMD’s pleadings were not founded on a duly recorded instrument or on a statutory lien and, as a result, the trial court was required to control or discharge KMD’s notice of lis pendens in the same manner in which the court may grant and dissolve injunctions. We agree.

Florida’s lis pendens statute provides, in pertinent part, as follows:

48.23 Lis pendens.—

(2) No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires. (3) When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

§ 48.23, Fla. Stat. (2006)(emphasis added). The case law construing the lis pendens statute makes it clear that the statutory language “founded on a duly recorded instrument” imposes the strict requirement that the lawsuit must be based on the terms contained in the recorded document itself. See American Legion Community Club v. Diamond, 561 So.2d 268, 272 (Fla.l990)(holding that the phrase “founded on a duly recorded instrument” in the lis pendens statute applies “only to those cases in which the suit is based on the terms and provisions contained in the recorded document”). See also DeGuzman v. Balsini 930 So.2d 752, 754 (Fla. 5th DCA 2006)(noting that unless an initial pleading shows that an action is founded on a duly recorded instrument concerning the real property described in the lis pen-dens, the court has the power to control the notice of lis pendens by discharging it or by requiring the party who filed the lis pendens to post a bond).

In Avalon Associates of Delaware Ltd. v. Avalon Park Associates, Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000), our court explained that, unless the initial pleading shows that the action is founded on a duly recorded instrument, the effect of the filing is limited to one year, and the court has the power to control the notice by discharging it or requiring the party seeking to file a lis pendens to post a bond. The reason for this strict requirement is that the imposition of a lis pendens functions as “a harsh and oppressive remedy” that “operates as a cloud on the title and prevents an owner from selling or dealing with it.” Id.

In Avalon, the plaintiff pled that its claims were “founded on the alleged breach of an unrecorded development agreement.” Though there was a “consensual lien” involved, that was “not determinative” for the Avalon court because section 48.23 of the Florida Statutes requires that the “action be founded on the recorded instrument.” Avalon, 760 So.2d at 1134-1135. The court noted that the dispute did not arise from the terms contained in a recorded consensual lien. Rather, the dispute was based “on the circumstances surrounding the performance” of the unrecorded development agreement. Id. Thus, the Avalon court determined that the plaintiff was not entitled to a lis pendens as a matter of right.

Similarly, in American Legion Community Club v. Diamond, 561 So.2d 268 (Fla.1990), the plaintiff sought to void a recorded deed on the basis of alleged fraud because the conveyance was in violation of the defendant club’s constitution and bylaws. The American Legion court ruled that the lawsuit was not an action founded on the terms contained within a recorded instrument, thereby entitling a party to a lis pendens as of right, “but on the circumstances surrounding the execution of that deed.” Id. at 272.

KMD takes the position that its claims are in fact based upon recorded instruments. For support, KMD points to the trial court’s ruling in this regard. For more specific support, KMD points out that its complaint referenced the recorded construction loan agreement with Sun-coast Federal Credit Union executed by the Suarezes, which in turn incorporated by reference the construction contract between KMD and the Suarezes. However, KMD’s complaint is not based upon that construction loan agreement. Additionally, KMD points out that its complaint referenced the recorded notice of commencement; however, KMD’s claim that the notice of commencement constitutes a duly recorded instrument on which KMD’s suit is founded must fail for the same reason. In short, KMD is not suing the Suarezes based on the terms and provisions of the construction loan agreement or the notice of commencement. KMD is suing the Suarezes based on the facts and circumstances revolving around the construction of their residence pursuant to the parties’ contract. As such, KMD’s claims are, in substance, merely contractual in nature and, thus, the trial court erroneously determined that KMD’s pleadings were “founded on a duly recorded instrument.” Said error constitutes a departure from the essential requirements of law.

Because KMD’s complaint is not founded on a duly recorded instrument, the trial court was required to control or discharge KMD’s notice of lis pendens in the same manner in which the court may grant and dissolve injunctions, and to hold an evidentiary hearing to determine the amount of bond required. Accordingly, the Suarezes will be irreparably harmed if the trial court’s orders denying the motion to dissolve the lis pendens and granting KMD’s motion to strike the motion to require bond and evidentiary hearing related thereto are not vacated. See DeGuzman v. Balsini, 930 So.2d 752, 754 (Fla. 5th DCA 2006)(stating that unless an initial pleading shows that an action is founded on a duly recorded instrument concerning the real property described in the lis pen-dens, the court has the power to control the notice of lis pendens by discharging it or by requiring the party who filed the lis pendens to post a bond).

The trial court is vested with considerable discretion with regard to considering whether a bond is necessary and, if so, what damages should be considered in setting the bond amount. The purpose of the bond provision is to protect the property owner from suffering damages in case the notice of lis pendens is unjustified. See Medical Facilities Development, Inc. v. Little Arch Creek Properties, Inc., 675 So.2d 915 (Fla.1996). See also Chiusolo v. Kennedy, 614 So.2d 491, 493 (Fla.l993)(ex-plaining that the bond requirement, whenever appropriate, is a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties).

If the trial court, in its discretion, decides to set a bond, in determining the amount, the court may consider both monetary and nonmonetary damages. See Medical Facilities. Additionally, our Supreme Court, in S and T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla.2006), held that a trial court may include in a lis pendens bond attorney’s fees that may foreseeably be incurred in obtaining a discharge of a notice of lis pendens. Issues concerning the propriety of a bond and the bond amount should be determined at an evidentiary hearing. See Santa Catalina Townhomes, Inc. v. Mirza, 925 So.2d 1147, 1148 (Fla. 4th DCA 2006)(holding that the trial court is authorized to require a lis pendens bond, after affording the parties an evidentiary hearing on the issue of whether the holder of the property is likely to incur damage, and the amount thereof, if the lis pendens notice is unjustified).

Accordingly, because the initial pleading in the instant case was not founded on a duly recorded instrument, the instant petition for writ of certiorari is granted and the trial court’s orders are quashed, except for that portion which denies the Suarezes’ motion to dismiss KMD’s equitable lien claim. On remand, the trial court is directed to consider, at an evidentiary hearing, whether the lis pendens should remain in place and, if so, whether a bond would be appropriate and, if so, the amount of the bond required.

Petition GRANTED in part; orders VACATED in part; case REMANDED.

ORFINGER and MONACO, JJ., concur.

      . Although not an issue in the instant case, the Suarezes claim that KMD failed to perfect its lien rights. KMD disputes this allegation, but did not include a claim in their complaint based upon any statutory lien rights.

      . By this ruling, we do not reach the merits of the Suarezes’ argument on the motion to dismiss. The trial court is, of course, free to readdress the merits of those arguments at an appropriate time in the proceedings below in light of the contents of this opinion.


author: COPE, J.

text:
    Willie F. WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-12.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.

      Bennett H. Brummer, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J. and COPE, J., and SCHWARTZ, Senior Judge.
   COPE, J.

Willie Frank Walker appeals his convictions for attempted second degree murder and other offenses. We affirm in part and reverse in part.

Defendant-appellant Walker contends that the trial court erred by allowing the prosecution to introduce a 911 tape of a call made by a neighbor asking the police to send an officer to investigate what sounded like a domestic disturbance in the apartment of defendant-appellant Walker. The trial court correctly overruled the defense objection which was based on the Confrontation Clause of the United States Constitution. See Davis v. Washington, — U.S. —, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

The defendant also objected that, owing to an evident delay in the neighbor’s placing of the 911 call, the tape did not qualify as a spontaneous statement or excited utterance under the Evidence Code. See § 90.803(1),(2), Fla. Stat. (2004). Assuming for purpose of discussion that there was any error, the statement made by the caller was harmless beyond a reasonable doubt, in view of the other evidence in the case. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

The defense argues that it was a double jeopardy violation to convict the defendant in count two of kidnapping and in count three of attempted felony murder. The first step of the double jeopardy analysis is to inquire “whether each offense has an element that the other does not.” Gordon v. State, 780 So.2d 17, 20 (Fla. 2001) (citations omitted); § 775.021(4)(a), Fla. Stat. (2003). For this analysis we look solely to the statutory elements of each crime. Gordon, 780 So.2d at 20.

We conclude that each offense has a statutory element the other does not. For kidnapping under subparagraph 787.01(l)(a)3., the defendant must forcibly, secretly, or by threat confine, abduct, or imprison the victim against his or her will, without lawful authority, with intent to inflict bodily harm upon or terrorize the victim. While confinement is required, there is no requirement for an overt act which inflicts bodily harm or terrorizes the victim. All that is required is the intent to inflict bodily harm or terrorize.

For attempted felony murder, the statute requires that the defendant either perpetrate or attempt to perpetrate an enumerated felony. The defendant must, in addition, commit, aid, or abet an intentional act that is not an essential element of the enumerated felony and that could, but does not, cause death. Attempted felony murder thus requires an overt act which could, but does not, inflict death. As the Florida Supreme Court said of the predecessor to this statute, “the Legislature clearly evinced its intent to create a new and substantive offense which is to be scored and sentenced separately from the enumerated felony....” Gordon, 780 So.2d at 22 n. 5. We conclude that the two offenses have separate statutory elements.

The second step of the required double jeopardy analysis is to determine if any of the statutory exceptions are applicable. The exceptions are:

1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. (2003).

As to exception 1, the elements of proof are not identical. As to exception 3, neither offense is a category 1 lesser of the other. See State v. Florida, 894 So.2d 941, 947 (Fla.2005).

As to exception 2, the case law inquires whether the two crimes involve the same “core offense” or “degree variant.” See State v. Florida, 894 So.2d at 948 (citing Sirmons v. State, 634 So.2d 153, 154 (Fla.1994)). The crime of kidnapping punishes the defendant’s confinement of a person against his or her will. See Boyd v. State, 910 So.2d 167, 184 (Fla.2005). Attempted felony murder punishes the potential of the defendant’s act to cause death. See State v. Florida, 894 So.2d at 949. These are different core offenses and are not degree variants of the same crime. We therefore conclude that there was no double jeopardy violation in convicting and sentencing the defendant on count two, kidnapping, and count three, attempted felony murder.

Finally, the defendant argues that it was a double jeopardy violation for him to be convicted in count one of attempted second degree murder and in count three of attempted felony murder. The defendant relies on Mitchell v. State, 880 So.2d 944, 946-7 (Fla. 5th DCA 2002), which is on point. We agree with the Fifth District. We remand with directions to vacate the conviction and sentence either on count one or count three. The defendant need not be present.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . On the 911 tape, the neighbor said that he could hear screaming and this had been occurring off and on all day. When police officers arrived, they found the victim bloody and badly injured all over her body, with visible scarring remaining at the time of trial.

      . The crime date for these counts was July 11, 2003.

      . Subsection 787.01(1), Florida Statutes (2003), provides:
      (l)(a) The term "kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
      1. Hold for ransom or reward or as a shield or hostage.
      2. Commit or facilitate commission of any felony.
      3. Inflict bodily harm upon or to terrorize the victim or another person.
      4. Interfere with the performance of any governmental or political function.
      (b) Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.

      .Subsection 782.051(1), Florida Statutes (2003), provides:
      (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in level 9 of the Criminal Punishment Code. Victim injury points shall be scored under this subsection.


author: SUAREZ, J.

text:
    Salvador F. MUSTELIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-967.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Rehearing Denied Sept. 21, 2007.
    John H. Lipinski, Pembroke Pines, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Salvador F. Mustelier (“Mustelier”) appeals a final order denying a Petition for Writ of Habeas Corpus. We find the trial court properly treated the petition as a Rule 3.850 motion for post conviction relief and affirm the trial court’s denial.

Mustelier was charged with first degree felony murder and conspiracy to traffic in cocaine, receiving convictions on both charges. His trial ran from November 5, 1986, until November 10, 1986. After waiving his right to a twelve-person jury in return for the State’s waiver of the death penalty, Mustelier received sentences of life imprisonment, with a mandatory minimum of twenty-five years incarceration, and fifteen year incarceration with a $250,000 fine. On December 16, 1986, Mustelier appealed to the Third District Court of Appeal, where the convictions were reversed and the cause was remanded to determine whether a twelve-person jury is required in a first-degree murder case in which the prosecution waives the death penalty. On May 29, 1990, the Florida Supreme Court reinstated the convictions on both charges. See State v. Mustelier, 561 So.2d 533 (Fla.1990). Subsequent motions for post conviction relief failed. Mustelier then filed this Petition for Writ of Habeas Corpus on September 30, 2005, nearly fifteen years after the convictions became final.

In his Petition for Writ of Habeas Corpus, Mustelier sought relief on the grounds that the trial judge was not physically present during the voir dire phase of his 1986 trial. The trial court dismissed this petition for three reasons: 1) In 1986, a judge’s absence during voir dire was neither fundamental error nor a jurisdictional question that could be raised at any time. State v. Singletary, 549 So.2d 996, 997 (Fla.1989); 2) Mustelier’s trial commenced before, and therefore was not governed by, the decision in Singletary, prohibiting the absence of a judge from the voir dire phase of a trial; and 3) Mustelier’s claims should have been raised either on direct appeal or in a prior motion for post conviction relief. Since they were not, the petition was treated as a motion for post conviction relief, and the trial court dismissed it as untimely, pursuant to Florida Rule of Criminal Procedure 3.850.

Singletary set forth a prohibition on judge absences during voir dire. The court’s opinion clearly states that only future cases and not cases decided previous to the decision would be affected. The court found there existed no precedential prohibition to the waiver of a judge’s presence at the time of the case, and it stated that the practice “should no longer continue” in trials where the jury selection is conducted after the Singletary decision. Singletary, 549 So.2d at 999. The voir dire in Mustelier’s case took place a year before the Singletary decision; therefore, Singletary does not apply. The trial court was correct in denying this petition.

Mustelier appeals from the denial of his Petition for Writ of Habeas Corpus. The trial court treated the petition as a Rule 3.850 motion. Mustelier did not raise the issue of the judge’s absence at any point on direct appeal or in post conviction motions. He cannot now raise it for the first time in a Petition for Writ of Habeas Corpus. Therefore, it was properly treated as an additional post conviction motion below. There is a two-year statute of limitations for bringing such a motion, and Mustelier’s Petition for Writ of Habeas Corpus was brought fifteen years after his conviction became final; therefore it is unquestionably untimely. See Fla. R.Crim. P. 3.850. For this reason, we also affirm the trial court’s order denying Mustelier’s Petition for Writ of Habeas Corpus as untimely.

Affirmed.


text:
    Lorenza SESSIONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2480.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Rehearing Denied Oct. 25, 2007.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Richard Yaluntas and Katherine Y. Mclntire, Assistant Attorneys General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Lorenza Sessions appeals a final judgment and conviction for attempted first degree murder. Following a day of drinking and partying, Sessions assaulted his girlfriend after becoming suspicious that she was cheating on him. Sessions and his girlfriend had a prior altercation the same day at a party they both attended and Sessions left the party. The second assault, which was much more serious, occurred when the girlfriend came home. Sessions did not put up a fight when arrested and told the officers he “did what I had to do.” Sessions was sentenced to life in prison. Sessions specifically appeals the trial court’s denial of his motion to discharge court-appointed counsel and the denial of his motion for continuance after he chose to represent himself at trial. While we find no evidence that Sessions received ineffective assistance of counsel and affirm the trial court’s denial of his motion to appoint new counsel when his second attorney was discharged, we find merit in Sessions’ contention that the trial court erred in denying his motion for continuance.

“A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal.” Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991). “The common thread running through those cases in which a palpable abuse of discretion has been found is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense.” Weible v. State, 761 So.2d 469, 472 (Fla. 4th DCA 2000) (quoting Smith v. State, 525 So.2d 477, 479 (Fla. 1st DCA 1988)). There are seven factors to be considered by the trial court when ruling upon a motion for continuance:

(1) the time actually available for preparation,
(2) the likelihood of prejudice from the denial,
(3) the defendant’s role in shortening preparation time,
(4) the complexity of the case,
(5) the availability of discovery,
(6) the adequacy of counsel actually provided, and
(7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime.

D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003).

During the period leading up to his trial, Sessions made several motions to discharge his court-appointed counsel. The trial court held a Nelson hearing three days before the trial was scheduled to begin. Sessions asserted that counsel failed to research and prepare a defense based on the theory that Sessions had been in a diabetic rage, and failed to depose a security guard who witnessed the prior altercation. Sessions alleged he did not know he was diabetic until after he had been arrested and alleged he would not have been drinking all day on the day of the crime had he known that. Sessions asserted he had talked to doctors who told him that high sugar levels can “make you have rages and also can cause temporary memory loss.”

Counsel responded to these allegations by asserting that he did not take the security guard’s deposition because as a matter of trial strategy, it would hurt Sessions’ case as the State could then use it to establish Sessions’ motive. With regard to an incapacity defense caused by diabetes, counsel asserted he had spoken to a doctor about it and the doctor indicated this was an absurd idea.

The trial court determined there was no “specific serious deficiency of [counsel’s] efforts on your behalf measurably below that of [a] professionally competent attorney.” Sessions insisted he wanted to represent himself and the trial court questioned him to determine his competency. Throughout the questioning, Sessions admitted he did not know what he was doing, but insisted he did not want his court-appointed counsel to represent him and would have to learn trial procedure as he went along. The trial court told Sessions if it granted his motion, no other attorney would be appointed to represent him. Sessions asked for a continuance to give him time to prepare and to request legal assistance from an agency in Miami. The trial court granted the motion to discharge counsel but informed Sessions the case would not be continued and the trial would begin on Monday.

On the day of trial, Sessions made the following statement to the trial court:

I don’t see how you can find me competent to defend myself even though my lawyer withheld evidence, didn’t try to get evidence, I’m a diabetic, didn’t get my medical record being a diabetic to do with a lot of my charges.... I have the right for a proper trial and legal counsel.

The trial court reminded Sessions that this was all discussed at the earlier hearing and urged Sessions to use his court-appointed counsel. Sessions refused, again asked for a continuance, and asked that counsel give him the records of his case. Counsel, who was present despite being discharged, responded that he had already given Sessions all the discovery in the case and would supply Sessions with copies of the depositions that he had already given to Sessions. At this point the State asked the trial court to reconsider its decision not to appoint new trial counsel but the trial court declined. Sessions reiterated his request for new counsel and continuances throughout the trial.

“[A] defendant’s invocation of the right to choose his own attorney may not be made in bad faith or ‘for the sake of arbitrary delay or to otherwise subvert judicial proceedings.’ ” Foster v. State, 704 So.2d 169, 173 (Fla. 4th DCA 1997). When denying Sessions’ motion for continuance, the trial court did not make any findings that Sessions was seeking to delay the trial or making the request in bad faith. While the trial court pointed out that there had been six continuances granted in the course of the case, there was no indication in the record how many of those continuances were due to requests on Sessions’ part. The outcome of the Nelson inquiry, three days prior to trial, meant that Sessions had essentially three days to prepare his defense and obtain his medical records.

While “there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance,” we find this was not an adequate length of time to allow for a pro se litigant’s preparation of a defense. Cox v. State, 354 So.2d 957, 958 (Fla. 3d DCA 1978). The State argues that the trial court’s prior denials of his motions to discharge should have put him on notice that the trial court would deny the last motion. While Sessions had been protesting counsel’s representations at other points leading up to the Nelson inquiry, this does not lead to the conclusion that he should have been aware that the trial court was likely to allow him to discharge counsel and represent himself without adequate time to prepare his defense.

While Sessions’ proposed defense that he was in a diabetic rage may be at the outside realm of believability, it was his only defense in a case that was factually against him and might have resulted in the conviction of a lesser included offense. By not allowing him adequate time to either prepare his own defense or obtain private counsel, we find the trial court violated his due process rights. The State itself asked the trial court to appoint new counsel for Sessions, recognizing that he was ill-prepared to represent himself. While the tri-' al court was within its rights in refusing to appoint new counsel, its denial of a continuance to allow Sessions time to prepare and present his affirmative defense to the jury was an abuse of discretion.

We reverse Sessions’ conviction and remand to the trial court for a new trial.

STONE and GROSS, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Joseph ROMEO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1688.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Joseph Romeo, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm m part and reverse m part.

Defendant-appellant Joseph Romeo was convicted of manslaughter and sentenced as a Violent Career Criminal (VCC). See § 775.084(1)(c), Fla. Stat. (1997). The defendant filed a Rule 3.800(a) motion in which he challenged his sentence as a VCC. The trial court denied the motion stating that the motion is duplicative of prior 3.800 motions and that “[djefendant has on at least 2 prior occasions raised these same issues which were denied and affirmed.” The defendant has appealed.

As a procedural matter, when there is a denial on the basis that the same issue has previously been disposed of on the merits, the correct procedure is to attach the previous motion and denial so it is made part of the postconviction record on appeal. See Lopez v. State, 946 So.2d 46 (Fla. 3d DCA 2006). The trial court did not do so in this case.

The defendant’s main claim on this appeal is that he does not actually qualify as a VCC. He asserts that the predicate offenses relied on by the trial court in adjudicating him a VCC are not qualifying offenses under the VCC statute. Such a claim is cognizable in a Rule 3.800(a) motion. See Bover v. State, 797 So.2d 1246 (Fla.2001).

In the exercise of discretion this court has taken judicial notice of its files regarding the defendant’s prior postconviction appeals. So far as this court can ascertain, the defendant has not previously raised this claim. Successive Rule 3.800(a) motions are allowed, so long as the claim has not previously been adjudicated on the merits. See State v. McBride, 848 So.2d 287, 290-91 (Fla.2003). We therefore reverse the order now before us as to this claim and remand for consideration of the merits.

The defendant has raised a second attack on his VCC adjudication. He maintains that the notice of enhancement filed in his case was legally insufficient. This issue was raised in a previous postconviction motion, although it is not entirely clear whether it was adjudicated on the merits. In any event, a claim of legal insufficiency of a notice of enhancement cannot be raised by a Rule 3.800(a) motion. Reese v. State, 899 So.2d 428, 429-30 (Fla. 3d DCA 2005); Cooper v. State, 817 So.2d 934 (Fla. 3d DCA 2002). We affirm the trial court’s order insofar as it denied relief on the notice issue.

For the stated reasons, we affirm the denial order in part, reverse in part, and remand for further proceedings consistent herewith.

       It appears that the date of the manslaughter offense was January 22, 1998.


text:
    Keith A. SHRUM, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1606.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Rehearing Denied Oct. 3, 2007.

      Keith A. Shrum, Lake Butler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the summary denial of his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(0- We affirm the summary denial in all respects except Appellant’s contention that the fine imposed was in violation of the plea agreement. The plea agreement is not in the record on appeal. When we ordered that it be filed, the lower court clerk was unable to locate it. Therefore, Appellant’s contention that the fine violated the plea agreement has not been refuted by the record. On remand, the lower court is directed to conduct an evi-dentiary hearing on this point or attach portions of the record that conclusively refute the claim.

AFFIRMED in part; REVERSED in part and REMANDED.

TORPY, LAWSON and EVANDER, JJ., concur.

      . Although the plea agreement is not in the record on appeal, Appellant furnished the court with what he purports to be a copy of the plea agreement. The document is not signed by a judge but does bear the purported signature of the assistant state attorney. Whether the document is authentic will have to be determined by the trial court on remand.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Peggy S. FREY, Appellee.
    No. 5D06-4278.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Rehearing Denied Oct. 3, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Gerald D. Siebens, Assistant Attorney General, Tampa, for Appellant.
    Peggy S. Frey, Homosassa, Pro Se.
   ORFINGER, J.

The Department of Highway Safety and Motor Vehicles (“Department”) appeals the trial court’s denial of its request for a finding of probable cause as a prerequisite to seeking the forfeiture of Peggy Frey’s car under the Florida Contraband Forfeiture Act. We affirm.

Frey was arrested for driving under the influence of alcohol (“DUI”) in violation of section 316.193, Florida Statutes (2006). Alleging that Frey had three or four prior DUI convictions in New York, the Department initiated forfeiture proceedings against Frey’s car pursuant to the Florida Contraband Forfeiture Act. The Act allows the government to seek the forfeiture of any personal property, including any motor vehicle, used in the commission of a felony. §§ 932.701(2)(a)5., 932.703(1)(a), Fla. Stat. (2006). Section 316.193(2)(b)1. makes a third DUI conviction, occurring within 10 years of a prior conviction, a felony, subjecting the violator’s car to forfeiture under the Act. See Dep’t of Highway Safety & Motor Vehicles v. Rife, 950 So.2d 1288, 1289 (Fla. 5th DCA 2007).

Frey did not request an adversarial preliminary hearing as permitted by the Act. Consequently, the Department petitioned the trial court to issue an order finding probable cause to proceed with the forfeiture proceeding pursuant to section 932.704(5)(b), Florida Statutes (2006). In support of its petition, the Department provided a verified affidavit from the trooper who arrested Frey. The affidavit stated that Frey has three or four DUI convictions in New York, and that she was driving under the influence of alcohol on the night of her arrest. However, neither the trooper’s affidavit nor the State’s petition alleged when Frey’s prior DUI convictions occurred.

The trial court denied the Department’s request for a finding of probable cause with no explanation except for a reference to two highlighted portions of the affidavit. The highlighted portions indicate that the trooper initially intended to allow one of Frey’s relatives to pick up the car, but later changed his mind, left the car on the side of the road to be towed, and initiated forfeiture proceedings.

In determining whether probable cause exists in a forfeiture proceeding, the court must consider whether the information provided by the State is “adequate and sufficiently reliable to warrant the belief by a reasonable person that a violation had occurred.” Medious v. Dep’t of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988). Consequently, we must determine if there was sufficient evidence set forth in the trooper’s affidavit to lead a reasonable person to conclude that Frey was driving under the influence on the night of her arrest, and had at least two prior DUI convictions, at least one of which had occurred within the preceding ten years.

We find nothing in the highlighted portions of the supporting affidavit that would warrant a finding of no probable cause for forfeiture of the car. Personal property subject to seizure may be seized either at the time of the violation or subsequent to the violation. § 932.703(2)(a), Fla. Stat. (2006). There is no requirement either that the property be seized immediately or that the intent to seize the property be formed immediately. That the trooper may have initially been inclined to release the car is of no legal consequence. However, forfeiture statutes are strictly construed. In re Forfeiture of One (1) 1991 Honda Prelude, 730 So.2d 334, 336 (Fla. 5th DCA 1999). Here, the absence of any indication that any of Frey’s New York DUI convictions occurred within ten years preceding her current offense fails to demonstrate that a felony occurred. The State had the burden of demonstrating that a felony occurred and failed to do so. The lack of information as to when Frey’s prior convictions occurred is fatal to the State’s claim.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.


text:
    Curtis Laron ROUSE, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D06-414, 5D06-468.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2007.
    Rudolph C. Campbell, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Curtis L. Rouse appeals a sentencing order entered following a resentencing proceeding conducted pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). On appeal, he contends that the trial court erred by including victim injury points on his sentencing guidelines scoresheet contrary to the holdings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We disagree and affirm.

Following a jury trial, Mr. Rouse was convicted of second-degree murder, resulting from an incident that occurred in December 1996. In a special finding, the jury found that Mr. Rouse used a firearm in the commission of the crime. At his initial sentencing, a 1995 guidelines score-sheet was utilized, which included points for victim injury. Pursuant to Heggs, Mr. Rouse was resentenced using a 1994 sentencing guidelines scoresheet, which again included victim injury points. Unlike the earlier 1995 scoresheet, points were also added for a prior offense. Mr. Rouse then filed a timely notice of appeal. While this appeal was pending, he filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion alleged that the trial court erred by including points for a prior offense. Relying on Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), Mr. Rouse also argued that the holding of Apprendi should have applied to his resentencing, thus, precluding the inclusion of any victim injury points, as no jury finding was made on that issue. The trial court found that the points for his prior offense were appropriate and denied his Apprendi claim, relying on this Court’s opinion in Langford v. State, 929 So.2d 598 (Fla. 5th DCA 2006).

Mr. Rouse contends that because the jury made no finding of victim injury, the trial court’s inclusion of victim injury points on his sentencing scoresheet violated his Sixth Amendment right to have all facts increasing his sentence beyond the statutory maximum found by a jury, as explained in Apprendi, and clarified by Blakely. Apprendi instructs that any facts supporting the imposition of a sentence beyond the statutory maximum must be found beyond a reasonable doubt by a jury or admitted by the defendant. 530 U.S. at 490, 120 S.Ct. 2348. Blakely clarified that the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04, 124 S.Ct. 2531.

Mr. Rouse’s challenge can be successful only if Apprendi and Blakely applied to his 2006 resentencing resulting from his 1999 conviction, and cites the First District’s decision in Isaac to support his contention. However, he acknowledges this Court’s decision in Langford is contrary to his position. In Langford, we held that Apprendi and Blakely do not apply to cases, such as this one, when the conviction became final before Apprendi was decided, even though resentencing took place post -Apprendi due to a scoresheet error. Langford, 929 So.2d at 600. In so holding, we aligned ourselves with the Second, Third and Fourth District Courts of Appeal, and certified conflict with Isaac. See, e.g., Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005); Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005), affirmed but criticized, 955 So.2d 517 (Fla.2007); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004), review denied, 914 So.2d 952 (Fla.2005).

Even if Apprendi does apply, we must perform a harmless error analysis. See Galindez v. State, 955 So.2d 517 (Fla.2007). Under a harmless error analysis, we must determine if the record “demonstrates beyond a reasonable doubt that a rational jury” would have found victim injury. Id. at 523. On this record, we easily conclude that any error in not having a jury make the finding needed to assess victim injury points on the scoresheet for second degree murder was harmless. The jury’s verdict demonstrates beyond a reasonable doubt that it concluded that Mr. Rouse injured the victim, resulting in the victim’s death. Consequently, the inclusion of victim injury points on the scoresheet, regardless of the retroactivity of Apprendi and Blakely, was harmless. As a result, we need not certify conflict with Isaac.

Finding no merit in Mr. Rouse’s remaining claim, we affirm the trial court’s judgment.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.


text:
    Simon Randy PEARSALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1044.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant Simon Randy Pear-sall’s motion for rehearing, and withdraw the opinion issued on June 13, 2007, and issue the following opinion in its place.

Assuming, without deciding, that the prosecutor’s cross-examination question was fairly susceptible of being interpreted as a comment on the appellant’s silence at the time of arrest, see State v. Hoggins, 718 So.2d 761, 768 (Fla.1998), we conclude that the error was harmless beyond a reasonable doubt.

Pearsall argues that the trial court erred in sentencing him. We address on the merits the various sentencing issues Pear-sall raises for two reasons. First, Pear-sall’s petition for rehearing is properly before us, and second, Pearsall’s trial counsel adequately preserved the sentencing issues for review when he raised the relevant sentencing arguments before the trial court during the sentencing hearing.

We first accept the State’s concession that Pearsall is entitled to a new sentence on count 7, leaving the scene of an accident with injury. The current sentence for this third-degree felony indeed exceeds the legal maximum. The trial court, therefore, should re-sentence Pear-sall on this count. Pearsall need not be present.

On count 3, theft, Pearsall is not entitled to a new sentence. The State, though, correctly points out that the judgment is inconsistent with the trial court’s oral pronouncement. The judgment indicates that count 3 is a second-degree misdemeanor and it is instead a second-degree felony. The trial court should thus correct the scrivener’s error in the judgment consistent with its oral pronouncement.

Furthermore, the trial court’s imposition of the sentence of thirty years on count 3 as a violent habitual offender with a mandatory minimum of fifteen years as a prison release reoffender is the appropriate sentence for a second-degree felony. Nor do we agree with Pearsall that his sentence on count 3 should be reduced because the trial court failed to make a finding as to the value of the property taken. Pearsall argues more specifically that a jury must find that the value of the property taken was in excess of $20,000 before a theft conviction could be enhanced to a second-degree felony. Any error in the trial court’s failure to make specific findings under these circumstances is harmless error. See Galindez v. State, 955 So.2d 517, 522-23 (Fla.2007). This is so because the jury instruction allowed the jury to convict Pearsall only if the value of the property Pearsall took fell within a given range—“was $20,000 or more but less than $100,000.”

The trial court also should correct a scrivener’s error in the judgment as to count 4, burglary. The judgment incorrectly classifies the crime of burglary as a third-degree felony. This is inconsistent with the trial court’s oral pronouncement that found Pearsall guilty of burglary of an occupied structure, a second-degree felony. Any error in the trial court’s failure to include the standard jury instruction on the aggravating circumstance of “human being in structure or conveyance,” or finding on the verdict form, in accordance with the information that charged Pearsall with burglary of occupied premises, is harmless error. See Id. The fact that the premises where the robbery took place was occupied was undisputed.

We therefore affirm in part, reverse in part, and remand with instructions.