text:
    Dennis CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2990.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Buchanan v. State, 743 So.2d 59 (Fla. 2d DCA 1999).

PALMER, ORFINGER and MONACO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Matthew LOUGHLIN, Appellant, v. Kim LOUGHLIN, Appellee.
    No. 5D05-3824.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.

      Henry J. Martocci, Rockledge, for Appellant.
    Andrea L. Cain and Richard D. 'West, West, Green & Associates, PL, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Vero v. Vero, 659 So.2d 1348 (Fla. 5th DCA 1995).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Kenneth Dewayne WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4052.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See State v. Causey, 503 So.2d 321 (Fla.1987).

AFFIRMED.

SHARP, W., MONACO and LAWSON, JJ., concur.


text:
    T.C. BRADY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1094.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    T.C. Brady, Ralford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Capaldo v. State, 679 So.2d 717 (Fla.1996).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    David COOK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1101.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Rehearing Denied June 21, 2006.
    David Cook, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

David Cook appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion. Cook was seeking additional jail credit towards his Broward County sentences for time served in the Pinellas County Jail. He was arrested for charges that occurred in Pinellas County, and he completed a jail sentence for those charges before he was transferred to Bro-ward County. Cook did not allege in his motion that he was arrested on a Broward County warrant at the same time that he was arrested for the offenses in Pinellas County, and he did not allege that a Bro-ward County warrant was executed while he was in the Pinellas County Jail. Rather, an inmate request form from the Pinellas County jail that was attached to appellant’s motion reflects that Broward County had issued only a hold. As a result, Cook has not demonstrated that he is entitled to any additional credit. See Gethers v. State, 838 So.2d 504 (Fla.2003); May v. State, 912 So.2d 326 (Fla. 3d DCA 2005); LeBlanc v. State, 839 So.2d 896 (Fla. 3d DCA 2003). We affirm.

WARNER, TAYLOR and HAZOURI, JJ., concur.


author: ALTENBERND, Judge.

text:
    USAA CASUALTY INSURANCE COMPANY, Appellant, v. Steven McDERMOTT and Pauline McDermott, Appellees.
    No. 2D05-694.
    District Court of Appeal of Florida, Second District.
    May 19, 2006.

      Jeffrey R. Fuller of Brasfield, Fuller, Freeman & O’Hern, P.A., St. Petersburg, for Appellant.
    Wm. Jere Tolton, III, and Matthew Mu-dano of Ogden <& Sullivan, P.A., Tampa; and David J. Farash of David Farash Law Offices, Tampa, for Appellees.
   ALTENBERND, Judge.

USAA Casualty Insurance Company (USAA) appeals a final judgment awarding uninsured motorist benefits to its insureds, Steven and Pauline McDermott. The unusual facts of this case presented the trial court with a challenging case to try by jury without undue prejudice to one side or the other. After a full review of the record, we conclude that the judgment should be affirmed. Although USAA presents a strong argument that it should be entitled, to a setoff for future medical and wage benefits that are very likely to be available for Mr., McDermott under workers’ compensation coverage, there is no express statutory entitlement to such a setoff and USAA has not attempted to establish such a right within its own insurance contract. We conclude that the general public policies announced in section 627.727, Florida Statutes (2002), do not authorize this court to give USAA a remedy that does not exist either in its contract or the statute regulating its contract. If a new law is required to permit such a set-off, it should be established by the legislature.

Mr. McDermott is a deputy sheriff. On November 2, 2002, he was on duty in a patrol car. He received a report concerning a home invasion and auto theft. He became involved in an automobile chase of the suspect, Christopher Cheatham. The chase lasted more than fifteen minutes and was videotaped by a sheriffs department helicopter. Ultimately, the chase ended when Mr. Cheatham’s car collided with Mr. McDermott’s patrol car. Mr. McDer-mott, who had been in prior accidents and had sustained prior back injuries, suffered injuries including injuries to his back.

Because Mr. McDermott was on duty, he was entitled to workers’ compensation coverage for this incident. He and his wife were also entitled to sue Mr. Cheat-ham, who was then a prisoner without insurance coverage, and to pursue an uninsured motorist claim against Mr. McDer-mott’s personal automobile insurer, USAA.

The claim against Mr. Cheatham was essentially a matter of undisputed liability. Moreover, Mr. Cheatham was a violent criminal involved in a police chase. When stopped, it was determined that Mr. Cheatham had a crack pipe and wanted to use his small remaining amount of cocaine before going to jail. The McDermotts did not sue Mr. Cheatham for punitive damages, but the case presented facts that might encourage a jury to award liberal damages against him and in favor of the McDermotts.

The McDermotts’ lawsuit named both Mr. Cheatham and USAA and included claims for both Mr. McDermott and his wife. By virtue of the McDermotts’ writ of habeas corpus ad testificandum, Mr. Cheatham appeared at trial in an orange prison jumpsuit. Although Mr. Cheatham initially contested the claim, he admitted liability during voir dire and did not further participate in the trial.

Prior to trial, USAA amended its answer to admit that Mr. Cheatham was negligent and to withdraw a defense of comparative negligence. It did, however, argue that Mr. McDermott’s injuries were not as severe as he claimed and that his medical conditions were actually the result of his prior accidents.

At the conclusion of the trial, the jury returned a total award of $681,303 for Mr. McDermott. Over $530,000 of this award was for future medical expenses and future lost wages. The jury awarded only $40,000 in future pain and suffering. The jury also awarded Mrs. McDermott $41,454. Following a reduction for setoffs, including workers’ compensation already recovered by Mr. McDermott, the trial court entered a total judgment of $644,100 jointly and severally against Mr. Cheat-ham and USAA in favor of the McDer-motts. The majority of this award involves future payments that are likely to be covered by workers’ compensation. USAA appealed the judgment.

USAA raises three issues on appeal, two of which warrant discussion. First, USAA argues that the trial court should have bifurcated its trial from that of Mr. Cheatham and that it should have limited the testimony and evidence describing Mr. Cheatham’s criminal conduct. Prior to trial, the issues for jury determination between the McDermotts and Mr. Cheatham were identical to those between the McDermotts and USAA. It is difficult to see how the trial court abused its discretion in denying a bifurcation that would have required trying the same case twice merely because USAA did not want to share the defense of this case with a criminal. As a practical matter, Mr. Cheat-ham’s participation in this trial was very limited because of his decisions during voir dire. Thus, we conclude that the trial court did not err in denying a bifurcated trial.

The evidence of Mr. Cheatham’s criminal conduct is a more complicated issue. It seems unavoidable that the jury would need to understand that this case involved a police chase of a suspected criminal. Because USAA was contesting the issue of causation, some of the activity of Mr. McDermott on the videotape was relevant to his physical condition. It is doubtful that the jury needed to know about Mr. Cheatham’s crack pipe or his desire to use his final supply of cocaine prior to going to jail. On the other hand, liability was an admitted issue at this trial. The lawyers for both sides focused on the issue of damages. A review of the closing arguments does not suggest that the McDermotts sought or received punitive damages disguised as compensatory damages. Thus, to the extent that any irrelevant evidence was admitted over objection during this trial, we are unconvinced that it resulted in harmful error. See Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000) (citing Katos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992)) (stating the test for harmful error in a civil case is whether, “but for such error,” a different result may have been reached); see also § 59.041, Fla. Stat. (2002).

USAA’s second issue is probably a matter for which there could be a better rule of law. It has long been established that uninsured motorist coverage “shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection benefits, disability benefits law, or similar law.” § 627.727(1). For those payments that a plaintiff has already received as workers’ compensation benefits, it is relatively easy to devise an adequate method to prevent a jury’s award from resulting in a judgment that duplicates payments made by the workers’ compensation insurer.

Providing an adequate method of setoff for future benefits, however, is a far more difficult task. In the related area of personal injury protection benefits, the supreme court has held that the setoff provided in section 627.736(3), Florida Statutes (1991), does not require a reduction from a verdict in an automobile negligence action for future PIP benefits that are payable to reimburse future lost income or future medical expenses. See Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000). The court reached a similar result under section 768.76(1), Florida Statutes (1993), for future payments under voluntary medical payments coverage. Allstate Ins. Co. v. Rudnick, 761 So.2d 289 (Fla.2000). In Rudnick, the court expressly declined to reach the issue of whether there should be any setoff from amounts awarded for an uninsured motorist claim under the statute involved in this case, § 627.727(1), for future payments of PIP or medical payments coverage. Rudnick, 761 So.2d at 293 n. 5. It is noteworthy that section 627.736(3) addresses future benefits that are “payable,” whereas section 627.727(1) addresses future benefits that are “available.” Moreover, both sections 627.736(3) and 768.76(1) are statutes altering rights of parties in a typical negligence action. They are not statutes addressing a first-party contractual claim by an insured against his or her own insurance carrier. Thus, the decisions in Rollins and Rudnick are merely persuasive.

The amounts in controversy concerning future PIP and medical payments coverage in a typical personal injury lawsuit are often relatively small, and thus the need to establish a complex solution for those benefits is questionable. On the other hand, as this case demonstrates, the duplication between workers’ compensation and uninsured motorist coverage for future medical expense and wage loss can be very substantial. Moreover, most people would expect that the injuries sustained by a law enforcement officer during the chase of a suspect would be covered primarily by workers’ compensation and not covered by uninsured motorist coverage purchased as part of the personal insurance policy on the officer’s family car. Thus, a clear rule establishing the relative responsibility of the workers’ compensation carrier and the uninsured motorist carrier for future medical and wage loss claims might well be desirable.

USAA has not cited to any Florida case resolving the issue of offsets for future workers’ compensation benefits and has not identified any other state that has established a special rule for offsetting future benefits. Oúr own independent research on the topic has not yielded any cases from other states that demonstrate any statutory or contractual solution warranting discussion in this opinion. Although the issue has existed in the structure of the uninsured motorist and workers’ compensation statutes for a generation, there has been no rush to resolve the matter.

Two Florida cases warrant at least some discussion. In Lobry v. State Farm Mutual Automobile Insurance Co., 398 So.2d 877 (Fla. 5th DCA 1981), the Fifth District reviewed a case in which the uninsured motorist carrier, State Farm, received an offset for future medical payments covered by workers’ compensation. A careful review of that case, however, establishes that the future medical expenses had already been settled by the workers’ compensation carrier by a lump sum payment under a statutory benefits structure significantly different than the statutes in existence today. Thus, the setoff in Lobry was comparable to the setoffs required under Rollins and Rudnick.

In Blackmon, 754 So.2d 840, the First District required an offset from an uninsured motorist claim for the present value of death benefits that would be paid in the future by the workers’ compensation carrier. Those benefits were to be paid under section 440.16(l)(b), Florida Statutes (1995), apparently to the widow. The amount of those future benefits had already been calculated, and the widow had a present enforceable right to this liquidated claim. Without regard to whether this court would adopt the approach in Blackmon, it is distinguishable because the future benefits payable under workers’ compensation in this case have not been resolved in any manner that gives the McDermotts a present claim to liquidated future damages.

It should be observed that while USAA argues that it is legally entitled to this setoff, it had made no effort to include such a setoff within the language of its insurance contract. Uninsured motorist coverage is a heavily regulated area of insurance law, and some contractual provisions have been disallowed by the courts as contrary to public policy. See Young v. Progressive Se. Ins. Co., 753 So.2d 80 (Fla.2000); Varro v. Federated Mut. Ins. Co., 854 So.2d 726 (Fla. 2d DCA 2003); Lee v. State Farm Mut. Auto. Ins. Co., 339 So.2d 670 (Fla. 2d DCA 1976). If USAA is correct that this setoff is compatible with the statutory law and would not improperly deny coverage to its insureds, it should be able to include this provision within its standard Florida contract. Without such a provision, USAA is effectively asking this court to add language to its contract and enforce this new language against its insureds. We see no basis to do this.

As a practical matter, it would appear that the current status of the law resolves the matter by preventing either insurance company from denying benefits for future damages. The injured plaintiff is not placed at risk of receiving nothing from the uninsured motorist insurance company today because of a setoff for future workers’ compensation benefits payable by an insurance company that may no longer exist when the future benefits are payable. The uninsured motorist carrier normally receives full subrogation rights against the tortfeasor from its insured, and the workers’ compensation carrier receives its lien against payments made by the tortfeasor. See §§ 440.39(3)(a), 627.727(6), Fla. Stat. (2002). The injured plaintiff does not need to worry that medical treatment which the jury today determined to be related to the accident will be disputed years from now by the workers’ compensation carrier when the treatment is actually needed or incurred. This collection of rules may not be perfect, but it minimizes the risk to the injured party and places risks on companies whose business is underwriting risks in exchange for premiums. We certainly have no authority to create a different rule today for use in this case.

Affirmed.

DAVIS and CANADY, JJ., Concur.

      . It should be emphasized that this case does not involve an existing settlement by the workers’ compensation carrier under which Mr. McDermott has received or is entitled to receive benefits for these future claims.

        . This section provides that ''[a]n injured party who is entitled to bring suit under the provisions of ss. 627.730-627.7405, or his legal representative, shall have no right to recover any damages for which, personal injury protection benefits are paid or payable.”


text:
    Dennis H. RECTOR, Appellant, v. Linda L. TERRY, f/k/a Linda L. Rector, Appellee.
    No. 5D05-1070.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    Richard A. Colegrove, Jr., Sanford, for Appellant.
    Robert J. Wheelock, Eric Lee Bensen and Michael B. Jones of Robert J. Wheel-ock, LLC, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Acker v. Acker, 904 So.2d 384 (Fla.2005).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Michael Steven HADDEN, Jr, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2744.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

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


text:
    Richard Victor FOREE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3503.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    David G. Mengers, Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Moore v. State, 701 So.2d 545 (Fla.1997).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. S.F., Paternal Aunt of K.M., A Child, Appellee.
    No. 5D05-3559.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.

      Michael R. Phillips of Department of Children & Families, St. Augustine, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See In the Interest of H.H., 865 So.2d 634 (Fla. 2d DCA 2004); L.L.C. v. Department of Children and Families, 790 So.2d 1239 (Fla. 5th DCA 2001).

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Warren CRABB, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4056.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), review denied, 894 So.2d 970 (Fla.2005).

MONACO, TORPY and LAWSON, JJ., concur.


text:
    John A. SCHNEIDER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-299.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    John A. Schneider, Jr., Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See § 958.14, Fla. Stat.; Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997).

PLEUS, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Guillermo BECERRA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1410.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    Guillermo Becerra, Moore Haven, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Calloway v. State, 914 So.2d 12 (Fla. 2d DCA 2005).

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


author: SUAREZ, J.

text:
    Dr. Ivaan SMALL, Appellant, v. Diane CHICOLA, as Personal Representative of the Estate of Robert Mark Chicola, deceased, Appellee.
    No. 3D05-1594.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Stephen, Lynn, Klein, Lacava, Hoffman & Puya and Roberta G. Mandel; Hamilton & Miller and Jerry Hamilton, Miami, for appellant.
    Ginsberg & Schwartz and Arnold R. Ginsberg, Miami; Samuel M. Spatzer, Coral Gables, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Dr. Ivaan Small appeals a non-final order denying his motion to dismiss for lack of personal jurisdiction or to transfer venue on grounds of forum non conveniens. We reverse the trial court’s order denying the motion to dismiss. '

Diane Chicóla (“Chicóla”), as personal representative of the estate of Robert Mark Chicóla, sued Dr. Small and others for the wrongful death of her husband, Robert Mark Chicóla, as a result of alleged medical malpractice on board the vessel, MTV Majesty of the Seas, owned by Royal Caribbean Cruises, Ltd. Dr. Small, a resident of South Africa, is a physician who was under contract with the cruise line to supply medical services to the passengers and crew of the M/V Majesty of the Seas. On August 28, 2002, the decedent, a passenger on the MW Majesty of the Seas, became ill riding a wave-runner off the coast of Coco Cay, an island in the Bahamas. At approximately 1:00 p.m., he was brought to the cruise ship, in international waters, where the doctor on duty, Gerhard Van Blerk, treated him with the assistance of Dr. Small, who was not on duty at that time. Dr. Small came on duty at 8:00 a.m. the following morning, August 29, 2002, after Dr. Van Blerk had already made the decision to evacuate the patient to a hospital in Key West because the condition of the patient had deteriorated during the night. After the ship docked in Key West, the patient was evacuated to the Lower Keys Medical Center, then airlifted to Baptist Hospital in Miami for further critical treatment from which he never recovered.

Dr. Small filed an affidavit in support of his motion to dismiss for lack of personal jurisdiction stating, in pertinent part, that:

21. At the time that the decedent was rendered medical treatment aboard the vessel, the MAJESTY OF THE SEAS, the vessel was on the high seas or in the waters of Coco Cay, an island in the Bahamas and, thus, outside the territorial waters of the State of Florida and the United States.
22. I was not involved in the decision to transfer the decedent to Key West for further medical treatment.
23. I was not involved in making the arrangements to evacuate the decedent to Key West.
24. I did not treat or examine the decedent after the ship left the waters of the Bahamas.
25. I did not treat or examine the decedent after the decedent was evacuated from the vessel.

In his deposition, Dr. Small testified as follows:

Q And what happens when that doctor goes off duty and the other doctor goes on duty? Does he then become the patient of the new doctor?
A Only if the patient is going to stay in the hospital.
Q What? You mean the ship’s hospital? A The ship’s hospital.
* * *
Q You went on duty on the morning of the 29th?
A Yes.
Q Mr. Chicóla was in the ship’s hospital when you went on duty.
A Yes.
Q Because the ship didn’t arrive at port until around 9:30 or so, according to the captain’s log.
A Yes.
Q When there is a patient in the ship’s hospital and you go on duty, do you look at the patient’s chart?
A No, the doctor on duty the previous night will come to the hospital, the ship’s hospital, assess all the patients, discharge or .evacuate the patients that he feels need to be evacuated.

The standard of review of a trial court’s order granting or denying a motion to dismiss for lack of personal jurisdiction is de novo. See Banco Cont’l, S.A. v. Transcom Bank (Barbados), Ltd., 922 So.2d 395 (Fla. 3d DCA 2006); Labbee v. Harrington, 913 So.2d 679 (Fla. 3d DCA 2005). As set forth in the seminal case of Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), a plaintiff may seek to obtain jurisdiction over a non-resident defendant by pleading the basis for service without alleging supporting facts. See Fla. R. Civ. P. 1.070(h). To contest the allegations of the complaint, the defendant must file affidavits in support of his position concerning jurisdiction. “The burden is [on] the defendant to prove by affidavit [deposition or other proof] the basis upon which jurisdiction must be obtained.” Venetian, 554 So.2d at 502. If the defendant’s proof filed in support of the motion to dismiss contains facts in opposition to the jurisdictional grounds raised in the complaint, the burden then shifts back to the plaintiff to clearly show by competent proof that the allegations of the complaint justify personal jurisdiction. Elmex Corp. v. Atl. Fed. Sav. & Loan Ass’n, 325 So.2d 58, 62 (Fla. 4th DCA 1976). Here, Chicóla alleged facts attempting to show that Dr. Small was subject to the jurisdiction of the courts of Florida, under section 48.193, Florida Statutes (2005), in that he committed a tortious' act in Florida or was doing business within the state. In moving to dismiss for lack of personal jurisdiction, Dr. Small filed a supporting affidavit stating that he neither treated the decedent in Florida territorial waters nor participated in the decision-making process concerning the patient, including whether and where to evacuate the decedent. Additionally, he relied on his deposition testimony that it was the responsibility of the on-duty, treating physician, Dr. Van Blerk, to care for and monitor the patient’s chart at all times, both prior to and after the determination to evacuate him had been made— including the time period when Dr. Small came on duty the morning of August 29, 2002, and when the ship was in Florida territorial waters. He denied ever having been engaged in or carrying on a business venture in the State of Florida.

In opposition to Dr. Small’s motion, Chi-cóla failed to offer any material facts, by way of affidavit, deposition or otherwise, to negate or oppose the jurisdictional proof presented by Dr. Small in support of his motion to dismiss which countered the jurisdictional allegations in the complaint. Therefore, we find that the appellee failed to satisfy her burden of proof to rebut the evidence presented by Dr. Small in support of his motion to dismiss for the purpose of providing a basis upon which personal jurisdiction could be obtained. See Venetian, 554 So.2d at 502; Elmex, 325 So.2d at 62.

As such, the trial court should have granted Dr. Small’s motion to dismiss for lack of personal jurisdiction. The order below denying the motion to dismiss is reversed.

Reversed.

      . In light of our disposition of the motion to dismiss, where the appellant has failed to establish by sufficient proof the commission of a tort in Florida waters, we need not address the appellant's points on appeal regarding whether the doctor's activities constituted doing business in the state under section 48.193, since the connexity requirement, see Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002), between the doctor's activities and the cause of action has not been met. Likewise, we need not reach the issue of whether venue was subject to transfer under the doctrine of forum non conveniens.


author: GROSS, J.

text:
    William Scott BARTLETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2232.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Rehearing Denied June 19, 2006.
    Phillip Menditto and Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Appellant, William Bartlett, was convicted of felony cruelty to animals, in violation of section 828.12(2), Florida Statutes (2004). On the evening after Hurricane Frances, appellant encountered an opossum in his garage. He shot the animal with his BB gun and chased it away. Later, when the animal was away from his home, appellant shot it numerous times with a BB gun. A deputy sheriff who arrived at the scene observed “countless amounts of pellets or BB’s” in the opossum. An animal control officer testified that when he saw the opossum it was severely injured and appeared to be suffering extremely, so that it was necessary to euthanize the animal.

Section 828.12(2) provides that:
[a] person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done is guilty of a felony of the third degree....

The evidence supports appellant’s conviction under this section. Section 828.12(2) criminalizes any “act” which results in the cruel death. The statute does not require an intent to cause the cruel death of an animal, but only an intent to commit the act that results in the cruel death.

We also write to observe that as section 828.12 is written, there is a potential tension between conduct criminalized by the statute and the lawful pursuit of hunting. Section 828.12 applies to even the unintended consequence of a lawful act. Thus, a hunter’s shot that only wounds an animal might lead the animal to suffer a “cruel death” some time and distance from the initial shot. Under these circumstances, the hunter has violated section 828.12(2) by intentionally firing the shot that set the sad events in motion.

Hunting has been part of life in Florida since before the adoption of the common law of England. See § 2.01, Fla. Stat. (2005). Under the common law, the title to wild animals or game was

in the sovereign, for the use and benefit of the people; the killing or taking and use of the game being subject to governmental control and regulation for the general good. The power to control and regulate the killing and use of game was vested in the colonial governments of America and passed with the title to game in its natural condition to the several states, as they became sovereigns, for the use and benefit of all the people of the states, respectively, subject to any provision of the federal Constitution that may be applicable to such control and regulation.

Harper v. Galloway, 58 Fla. 255, 51 So. 226, 228 (1910).

An opossum is a “fur-bearing animal” within the meaning of section 372.001(10), Florida Statutes (2005). A licensed hunter may “take” a fur-bearing animal under the appropriate circumstances. See § 372.57(1), Florida Statutes (2005).

As section 828.12(2) is written, there is a blurred line between the lawful hunting of an animal and the commission of a criminal act. This fuzziness could be corrected by amending the criminal statute to require that the actor intend to cause the results that the statute seeks to avoid — a cruel death or unnecessary pain or suffering.

WARNER and HAZOURI, JJ., concur.


author: MAY, J.

text:
    Douglas WALKER, Appellant, v. James R. McDONOUGH, et al., Appellee.
    No. 4D05-1757.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Douglas Walker, Punta Gorda, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for appellee.
   MAY, J.

The plaintiff appeals the dismissal of his second amended complaint against the Departments of Corrections and Insurance for failure to prosecute. He argues the court erred in dismissing the complaint because the record reflects record activity within the year preceding the motion to dismiss. We agree and reverse.

The plaintiff filed his second amended complaint against three individually named defendants and the Florida Departments of Corrections and Insurance. The individual defendants filed a motion to dismiss for failure to state a cause of action, entitlement to qualified immunity, entitlement to sovereign immunity, and failure to comply with conditions precedent under section 768.28, Florida Statutes (2003). The agency defendants filed motions to dismiss for failure to state a cause of action and entitlement to sovereign immunity.

The plaintiff filed a response and supplemental response, but no hearings were set on these motions. On April 14, 2004, defense counsel filed a notice of address change. On July 14, 2004, defense counsel filed a notice of absence from the court’s jurisdiction. On July 30, 2004, the plaintiff filed a notice of address change.

On September 14, 2004, the agency defendants filed a motion to dismiss for failure to prosecute, pursuant to rule 1.420(e), Florida Rules of Civil Procedure. Ten days later, the plaintiff filed a response to the motion. The court set a telephonic hearing on the motion for October 28, 2004, but the plaintiff was unable to attend.

The court again set a telephonic hearing at which the plaintiff appeared. The court entered an order granting the motion to dismiss. The plaintiff filed a motion for rehearing, which the trial court denied on March 16, 2005.

On appeal, the plaintiff argues the court erred in granting the motion to dismiss because there were other outstanding motions. While this argument has no merit, a relatively recent decision of the Florida Supreme Court controls the outcome in this appeal. See Wilson v. Salomon, 923 So.2d 363 (Fla.2005). In Wilson, our supreme court established a bright-line rule for motions to dismiss for failure to prosecute.

[I]f a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review of the face of the record reveals activity by “filings of pleadings, order of court, or otherwise,” an action should not be dismissed.

Id. at 368.

Applying this bright-line rule, the two notices of change of address and defense counsel’s notice of absence from the jurisdiction are record activity in the year preceding the motion to dismiss for failure to prosecute. Consequently, the court erred in granting the motion. Because the trial court did not consider the other bases for the motion to dismiss, we do not address them here, but remand the case to the trial court for consideration.

Reversed and Remanded.

STEVENSON, CJ., and GUNTHER, J., concur.

      . We note the trial court did not have the benefit of Wilson v. Salomon, 923 So.2d 363 (Fla.2005), at the time of rendering its decision.


text:
    Larry MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3023.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Larry Mobley, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We sua sponte withdraw our previous opinion issued on October 9, 2002. The order on review is affirmed. See State v. Dickey, 928 So.2d 1193 (Fla. 2006).

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


text:
    STATE of Florida, Appellant, v. W.E., A Child, Appellee.
    No. 5D05-2117.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.

      Charles J. Crist,-Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse the trial court’s order dismissing the petitions for revocation of juvenile probation and remand this cause for further proceedings. State v. N.F., 924 So.2d 912 (Fla. 5th DCA 2006).

REVERSED and REMANDED.

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


text:
    David PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1144.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2006.
    Robert Wesley, Public Defender, Orlando, and Curt G. Levine, Assistant Public Defender, Kissimmee, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Davidson v. State, 701 So.2d 123 (Fla. 5th DCA 1997).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    James T. EDSALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3641.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2006.
    James S. Purdy, Public Defender and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    James T. Edsall, Chipley, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and TORPY, JJ., concur.


text:
    Tarance BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3290.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2006.
    James S. Purdy, Public Defender, and Caleb A. Bendix, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and SAWAYA, JJ., concur.


text:
    Mario VASSER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3280.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2006.
    James S. Purdy, Public Defender, and Caleb Bendix, Assistant Public Defender, Daytona Beach, for Appellant.
    Mario Vasser, Orlando, pro se.
    Charles J. Crist, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W„ PALMER and LAWSON, JJ., concur.


author: LaROSE, Judge.

text:
    Darren Leon BROUGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2067.
    District Court of Appeal of Florida, Second District.
    May 31, 2006.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles C. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Darren Leon Broughton challenges the sentence imposed following the revocation of his probation. We affirm.

Mr. Broughton pleaded guilty to multiple counts of burglary and grand theft in three separate cases (case nos.: 04-9800, 04-14972, and 04-15021). The trial court imposed concurrent 364-day jail terms in each case, suspended upon completion of an in-jail drug treatment program, followed by twenty-four months’ drug offender probation. Mr. Broughton admitted to violating his probation. The trial court revoked his probation and sentenced him to concurrent twenty-seven-month prison terms. Mr. Broughton filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days.. Thus, the motion is deemed denied. Fla. R.Crim. P. 3.800(b)(2)(B); (b)(1)(B).

Mr. Broughton argues that the sentences originally imposed were true split sentences. A “true split sentence” consists of a total period of confinement with a portion suspended and the defendant placed on probation for the suspended portion. Poore v. State, 531 So.2d 161, 164 (Fla.1988). Upon violation of probation, the trial court may impose only the remainder of the suspended portion of the sentence. Id. The State agrees that Mr. Broughton’s original sentences were analogous to true split sentences and concurs that the trial court erred in sentencing Mr. Broughton to twenty-seven months in prison.

Both Mr. Broughton and the State are incorrect in applying the “true split sentence” rubric to the original sentences. The trial court sentenced Mr. Broughton to 364 days in county jail, “suspended once in-jail drug treatment is completed,” followed by twenty-four months of drug offender probation. The sentencing order demonstrates that the trial court limited the incarceration period to a term necessary to complete the drug treatment program.

The trial court’s original sentences allowed Mr. Broughton to complete his jail time faster by cooperating with the in-jail drug treatment program. Upon completion of the drug treatment program, Mr. Broughton’s period of confinement ended; there remained no suspended portion of the sentences. Accordingly, each of his initial sentences was a “probationary split sentence.” See Poore, 531 So.2d at 164. Following the revocation of Mr. Brough-ton’s probation, the trial court could have imposed any sentence it might have originally imposed upon him. See § 948.06(1); Poore, 531 So.2d at 164.

Affirmed.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The trial court did enter an order setting aside the sentence in one of the cases (case no. 04-9800) after the sixty-day window closed. That order is a nullity because the trial court entered it without jurisdiction. See Davis v. State, 887 So.2d 1286 (Fla.2004).

      . A probationary split sentence consists of "a period of confinement, none of which is suspended, followed by a period of probation.” Poore, 531 So.2d at 164.


text:
    Jerry Lee SWEET, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2533.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Carey Haughwout, Public Defender, and Frederick Arthur Mullins, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Jerry Lee Sweet appeals the judgments and sentences imposed after he admitted violating the terms of his community control without reserving the right to appeal any dispositive issue. Sweet’s community control had been previously imposed in five separate lower tribunal cases. He admitted violating community control as to two of the five counts alleged in the second amended affidavit of violation of community control, and the State chose not to pursue the other counts. His assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, the record does not contain an order of revocation of community control that specifies the conditions violated.

We affirm the revocation of community control and the sentences, see Robinson v. State, 373 So.2d 898 (Fla.1979), but remand with the direction that the trial court enter an order of revocation of community control in each case which reflects Sweet’s admission to violating community control as to only counts one and two of the second amended affidavit of violation of community control.

Affirmed; Remanded with Instructions.

GUNTHER, POLEN and MAY, JJ., concur.


text:
    O.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3075.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s adjudication of delinquency for aggravated battery and simple battery.

We reverse the disposition and remand for a new disposition hearing. Section 985.229(1), Florida Statutes (2004), requires that the court order and consider a predisposition report if residential commitment is “anticipated or recommended by an officer of the court or by the department.” See T.H. v. State, 859 So.2d 549 (Fla. 4th DCA 2003). We also note that the disposition order does not delineate the disposition for each offense and fails to account for credit for time served in a juvenile detention center. See J.W. v. State, 879 So.2d 680, 682 (Fla. 4th DCA 2004).

Affirmed in part, reversed in part, and remanded.

WARNER, GROSS and HAZOURI, JJ., concur.


author: SHARP, W., J.

text:
    T.N., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1969.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

T.N., a child, appeals from an order which adjudicated him delinquent for having committed the offense of attempted robbery with a weapon, and which placed him at a restrictiveness level six, contrary to the recommendation of the Department of Juvenile Justice. We affirm the adjudication of delinquency, but reverse the sentence and remand for resentencing.

The only evidence presented at the adjudicatory hearing to prove that T.N. possessed a weapon, while attempting to rob the victim of a necklace or chain, was the testimony of the victim. The victim said that while he was leaving school, he was accosted by T.N. and two other boys. T.N. told him to remove his chain. When he refused, T.N. threatened him and lifted his shirt to reveal a white and black gun in the small of his back. One of the boys hit the victim’s neck and jumped on his back. The victim was able to run away, and contacted the police.

During the direct testimony of the victim, the following exchange occurred:

Q. Okay. Now, you say you saw a weapon when he pulled up his shirt.
A. Yes.
Q. What kind of weapon did you see?
A. It was white — it was like a stone color, and black.
Q. Was it a gun?
A. Yes.

The victim’s version of the altercation was disputed by T.N. and a co-defendant. They denied that T.N. had a gun. No weapon was recovered from T.N. or presented in evidence.

At the adjudicatory hearing, defense counsel moved for a judgment of acquittal as to all counts involving a firearm. The Florida Rules of Juvenile Procedure do not provide for a motion for judgment of acquittal. However, rule 8.110(k) permits a juvenile to move for a judgment of dismissal at the close of the state’s case in chief, if the evidence is not sufficient to establish a prima facie case of guilt. A.P.R. v. State, 894 So.2d 282 (Fla. 5th DCA 2005); J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003).

The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case. Id. Such a motion tests the legal sufficiency of the evidence presented by the state. G.G. v. State, 903 So.2d 1031 (Fla. 4th DCA 2005); A.P.R. The denial of a motion for judgment of dismissal is reviewed by this court de novo. Id.

T.N. argues there was insufficient evidence that he committed attempted robbery with a weapon. Although the statute does not define weapon, the definition of weapon in the Florida Standard Jury Instructions is a correct statement of the law. Dale v. State, 703 So.2d 1045 (Fla.1997). They define “weapon” as “any object that could be used to cause death or inflict serious bodily injury.” Fla. Std. Jury Inst. (Crim.) 15.1.

In this case, no weapon was recovered or proffered in evidence. But that is not dispositive. See Suit v. State, 901 So.2d 986 (Fla. 4th DCA), rev. denied, 915 So.2d 1197 (Fla.2005); Akins v. State, 838 So.2d 637 (Fla. 5th DCA 2003). A victim’s testimony is sufficient to establish that a defendant was armed with a firearm during a robbery. See O’Brien v. State, 546 So.2d 32 (Fla. 3d DCA 1989) (victim’s testimony that the defendant lifted his shirt, revealing the handle of a gun protruding from his waistband, held sufficient to establish the defendant was armed with a firearm); Akins v. State, 838 So.2d 637 (Fla. 5th DCA 2003) (victim’s testimony that the defendant placed a firearm on the counter of a convenience store while demanding the clerk/victim give him money and that she believed it was a sawed-off shotgun sufficient to support defendant’s conviction for armed robbery). We conclude the trial judge was correct in determining there was sufficient evidence to support a finding that T.N. possessed a weapon.

At the disposition hearing, the Department recommended probation. The trial court rejected this recommendation on the ground that it was “insufficient to provide adequate protection for the community.” The consideration of public safety is a legitimate concern in determining placement. See J.L.K. v. State, 894 So.2d 984 (Fla. 1st DCA 2004). However, the record does not disclose that the judge considered T.N.’s needs in disregarding the Department’s recommendation. Section 985.23(2) provides:

985.23. Disposition hearings in delinquency cases:
When a child has been found to have committed a delinquent act, the following procedures shall be applicable to the disposition of the case:
⅜ ⅜ *
(2) The first determination to be made by the court is a determination of the suitability or nonsuitability for adjudication and commitment of the child to the department. This determination shall include consideration of the recommendations of the department, which may include a predisposition report. The predisposition report shall include, whether as part of the child’s multidisciplinary assessment, classification, and placement process components or separately, evaluation of the following criteria:
(a) The seriousness of the offense to the community. If the court determines that the child was a member of a criminal street gang at the time of the commission of the offense, which determination shall be made pursuant to chapter 874, the seriousness of the offense to the community shall be given great weight.
(b) Whether the protection of the community requires adjudication and commitment to the department.
(c) "Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.
(d) WTiether the offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
(e) The sophistication and maturity of the child.
(f) The record and previous criminal history of the child, including without limitations:
1. Previous contacts with the department, the former Department of Health and Rehabilitative Services, the Department of Children and Family Services, the Department of Corrections, other law enforcement agencies, and courts;
2. Prior periods of probation;
3. Prior adjudications of delinquency; and
4. Prior commitments to institutions.
(g) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child if committed to a community services program or facility.
(h) The child’s educational status, including, but not limited to, the child’s strengths, abilities, and unmet and special educational needs." The report shall identify appropriate educational and vocational goals for the child. Examples of appropriate goals include:
1. Attainment of a high school diploma or its equivalent.
2. Successful completion of literacy course(s).
3. Successful completion of vocational course(s).
4. Successful attendance and completion of the child’s current grade if enrolled in school.
5. Enrollment in an apprenticeship or a similar program'.
At the time of disposition, the court may-make recommendations to the department as to specific treatment approaches to be employed.

A trial court may disregard the recommendations of the Department pursuant to section 985.23(3)(e). However, in doing so, the court must state the reasons, and also make reference to the characteristics of the restrictiveness level and the needs of the child. S.S.M. v. State, 814 So.2d 1234 (Fla. 5th DCA 2002); A.G. v. State, 737 So.2d 1244 (Fla. 5th DCA 1999).

The judge in this case considered the nature of the crime committed by T.N., but he did not consider the characteristic of the restrictiveness level or T.N.’s needs. According to defense counsel, T.N. has no prior convictions (although he was involved in a cocaine case which had been nol prossed at the time of the hearing) and had been placed on a behavior order after trial, and has done “okay” with no additional problems.

Accordingly, we reverse the commitment order and remand to either place T.N. according to the Department’s recommendation, or to resentenee based on the record, with stated reasons and reference to the statutory considerations in section 985.23(3)(c). See S.S.M. (trial court’s action in committing juvenile to level 8, high-risk residential program, which was in disregard of the recommendation of the Department constituted error, where court made no reference to level 8 restrictiveness level or how such level served the needs of juvenile); A.G. (reversing disposition order which imposed level 8 disposition, over the Department’s level 6 recommendation, where reasons constituted only disagreement with the Department’s recommendations and failed to reference the commitment level with respect to the juvenile’s needs). In its discretion, the court may conduct another disposition hearing.

Adjudication AFFIRMED, REVERSED and REMANDED for RESEN-TENCING.

THOMPSON and MONACO, JJ., concur.

      . Rule 8.110. Adjudicatory Hearings
      (k) Motion for Judgment of Dismissal. If at the close of the evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child shall, enter an order dismissing the petition for insufficiency of the evidence.

      . § 812.13(2)(b), Fla. Stat.

      . 98S.23. Disposition hearings in delinquency cases
      When a child has been found to have committed a delinquent act, the following procedures shall be applicable to the disposition of the case:
      (3)(c) The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court's findings resulting in a modified level of restrictiveness pursuant to this paragraph.


text:
    Richard Alan PATE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3098.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the lower court in all respects except for a sentencing discrepancy. Appellant was sentenced in five cases during one proceeding. The parties referred to four of the cases, including the instant case (lower court case number 03-34239) as the “Volusia” eases. The fifth case (lower court case number 03-606) was labeled by the parties as the “Flagler” case. The transcript reveals that the lower court intended to impose concurrent sentences in all the “Volusia” cases. As to the “Fla-gler” case, the court intended that count one, a 30-year sentence, be served concurrent with the Volusia sentences, but that count two, a 15-year sentence, be served consecutive to the .15-year sentence imposed for count two of Volusia case number 03-34239. The intended result was that Appellant serve a total of 30 years in prison in satisfaction of all of his cases.

Although the oral pronouncements by the trial court are clear and are consistent with the agreement of the parties, the written sentencing order in case number 03-34239 is at variance with the oral pronouncements. First, the written sentence states that count two is to be served consecutive to count two in the Flagler case, the opposite of what the trial court orally imposed. Second, the written order’s requirement that the sentence for count two of Volusia case number 03-34329 be served after completion of the sentence for count two of the Flagler case, contravenes the trial court’s oral pronouncement that all of the Volusia sentences were to be served concurrent to one another. As such, the oral pronouncements and written sentence conflict, a point with which the State does not take issue. Instead, the State argues that Appellant is not prejudiced by the discrepancy because he will serve a 30-year sentence regardless of which of the consecutive sentences is served first. This is true unless Appellant’s sentences in the Flagler case are modified or nullified post conviction.

Because the written order is at variance with the oral pronouncement, we reverse it and remand this cause with instructions that the sentence in case number OS-34239, count two, be imposed concurrent with count one and the other Volusia case numbers 03-35343, 03-35042 and 04-30744, nunc pro tunc to the date the sentence was imposed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PLEUS, C.J., SHARP, W., and TORPY, JJ., concur.


author: THOMPSON, J. GRIFFIN, J.,

text:
    Rick G. DOCEKAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3881.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.

      Benjamin S. Waxman, of Robbins, Tun-key, Et AL, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

The State charged Rick Docekal with committing sexual battery on a victim while she was physically helpless to resist. The jury found Docekal guilty of the lesser included offense of sexual battery. Do-cekal filed motions for judgment of acquittal or new trial, which the court denied. He timely appeals, arguing four issues. He contends the trial court erred by: (1) limiting his cross-examination of the victim; (2) denying his motion for mistrial after the State made an improper comment in closing; (3) denying his motion for judgment of acquittal; and (4) imposing victim injury points for sexual penetration. We determine that the first issue is dispos-itive and hold that the trial court abused its discretion by limiting Docekal’s cross-examination; therefore, we reverse for a new trial.

Docekal met the victim at a Sterling Jeweler’s annual convention involving more than 1500 managers at the Coronado Springs Resort in Orlando. The convention lasted four days and consisted of daily seminars and social events. It ended on a Thursday. Sterling paid for transportation, meals, beer, wine, a company party at MGM Studios, and double rooms. The record is unclear whether the double rooms were to save costs -or to develop a spirit of camaraderie among the participants.

Docekal was 40, married, wore his wedding band, and had attended several conventions. The victim was 25 and single. She was attending her first convention and shared a room with fellow manager Wendy Kreitzer. During the convention, the victim spent time with Kreitzer and two other Ohio managers, Nicole Feltner and Feltner’s roommate. On Sunday night, Docekal approached the four women at the resort bar and flirted with them for approximately 15 minutes. However, he focused his attention on Feltner. The victim immediately disliked Docekal. She tuned him out because she considered him a slimy, arrogant ladies’ man, and was “creeped out” by him. During the convention, Docekal periodically encountered the women. The victim testified she considered him “that annoying guy that keeps coming up and will not leave you alone.”

The party on Wednesday began around 8:00 p.m. and ended around midnight. The amount of alcohol Docekal and the victim consumed that night was disputed; however, all witnesses testified that alcohol was served and consumed. The convention ended the following day, and everyone had to be out of their rooms by 7:15 a.m. Thursday morning. After the party ended, Feltner and Docekal talked alone for an hour by the hotel pool. Docekal wanted to spoon with Feltner and sleep in her room because his roommate snored. Felt-ner changed the subject because Docekal was married, and they decided to go to the victim’s room to see if she and her roommate were still awake.

Docekal and Feltner arrived at the victim’s room between 1:30 a.m. and 3:00 a.m. The victim’s roommate, Ms. Kreitzer, turned on the light and answered the door. The victim had been asleep and remained in bed under the covers. Feltner and Docekal chatted for about fifteen minutes. Docekal complained about his snoring roommate and talked about spooning with Feltner. Eventually, Feltner and Docekal left, and the victim went back to sleep. Docekal went to Feltner’s room and still wanted to spoon, but Feltner declined and pushed him out the door. About 15 minutes later, Docekal returned to the victim’s room.

The victim awoke, and Kreitzer let him in. Docekal plopped onto the victim’s bed and announced he was sleeping there. She told him to stay on top of the covers on his side of the bed. She had nothing on under the covers so she scrambled around, not getting out of bed, to put on and tie a pair of drawstring pants over her underwear and a tank top while she was under the covers because, “[bjeing the slimy individual that [she] perceived him to be, [she] [thought] that if he recognized ... that [she] did not have clothing on, he would do, in fact, what he did.” She got under three layers of covers and immediately fell asleep; he was clothed and on top of the covers.

At this point, their accounts of the subsequent events diverge. The victim testified that she awoke about an hour later and Docekal’s hand was on her hip while he penetrated her from behind. She thought she was dreaming that she was with her boyfriend back home. One or two seconds later, after moments of shock and disbelief, she realized where she was. She kicked and pushed Docekal and said, no, you have to move over. Her pants and underwear were around her knees, but she did not recall how they got there. She pulled up her pants, laid still for one minute, flipped on the light, and told Docekal to leave. She heard his pants come up and the door shut. After another minute, she woke Kreitzer, told her what happened, and cried in bed. She remained in bed until she called her district manager and the police around 7 a.m., approximately three hours after the incident. She testified she did not consent to or invite Docekal’s conduct.

Docekal testified that, about an hour after falling asleep on top of the covers, he got up to use the bathroom. He got under the covers when he returned because the room was cold, but he still had his clothes on. Moreover, he testified the victim caressed his ankle with her foot, and they began to kiss and engage in foreplay. She unbuttoned his shorts and touched his penis, and he pulled her pants and underwear down to her ankles. He digitally penetrated her vagina, but he was flaccid. He was rubbing his groin against her from behind when she said, no, you need to get back on your side of the bed. He complied. After a few minutes, she told him to leave, and he did.

At trial, the State asked the victim during direct examination why she let Docekal stay in her room. She responded:

He was back a second time, I was tired, I wanted to go to sleep. It was apparent he wasn’t leaving. Being that he’s a married man, you wouldn’t have expected any — to be in harm’s way. And the fact that he was employed with the company, he should have been a respected individual, acting in a responsible manner. I just wanted to go to sleep.

On cross-examination, Docekal attempted to question the victim about her sexual relations with another married man on the day before the alleged sexual battery, but the State objected. Docekal contended he was entitled to impeach her credibility because she said that she would not expect a married man to make advances. The State replied that Docekal was attempting impeachment on a collateral, irrelevant matter elicited during cross-examination. The court sustained the objection. In a proffer, Docekal stated he would have asked whether she had sexual relations with a married man on the previous day.

Docekal argues that the court erred by limiting his cross-examination regarding the victim’s sexual relations with another man on the night before the alleged rape. The State responds that Do-cekal, not the State, opened the door, and that the matter was irrelevant. In light of the victim’s testimony on direct examination that a married man would not place her in harm’s way, we agree with Docekal.

We review the trial court’s ruling concerning the scope of cross-examination for abuse of discretion. De la Portilla v. State, 877 So.2d 871, 874 (Fla. 3d DCA 2004). The defendant has the absolute right to conduct a full and fair cross-examination. Id. (citing Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982)). This right “is especially necessary when the witness being cross-examined is the key witness on whose credibility the State’s case relies.” Tomengo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004). A trial court reversibly errs by prohibiting cross-examination “when the facts sought to be elicited are germane to that witness’ testimony and plausibly relevant to the theory of defense.” Bertram v. State, 637 So.2d 258, 260 (Fla. 2d DCA 1994) (citation omitted); De la Portilla, 877 So.2d at 874. Such an error occurred here.

The proper purposes of cross-examination are: (1) to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct examination and, (2) to impeach the credibility of the witness, which may involve, among other things, showing his possible interest in the outcome of the case. Therefore it is held that questions on .cross-examination must either relate to credibility or be germane to the matters brought out on direct examination.

Steinhorst, 412 So.2d at 337 (citations omitted) (quoted in Diaz v. State, 747 So.2d 1021, 1023 (Fla. 3d DCA 1999); see also Romero v. State, 901 So.2d 260, 266-67 (Fla. 4th DCA 2005)).

Doeekal was entitled to impeach the victim’s credibility. “All [testifying] witnesses ... place their credibility in issue. ... [A] party on cross-examination may inquire into matters that affect the truthfulness of the witness’ testimony. Although cross-examination is generally limited to the scope of the direct examination, the credibility of the witness is always a proper subject....” Chandler v. State, 702 So.2d 186, 195 (Fla.1997) (quoting Charles W. Ehrhardt, Florida Evidence § 608.1 at 385 (1997 ed.)); see also Minus v. State, 901 So.2d 344, 348 (Fla. 4th DCA 2005) (noting the breadth of the defendant’s right to attack the credibility of a testifying witness in a criminal case). Furthermore, the supreme court has “long held that cross examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief.” Chandler, 702 So.2d at 196 (citations and internal quotation marks omitted).

On direct examination, the victim justified her decision to allow Doeekal to sleep in her bed with an explanation that was tenuous in light of her conduct on the previous night. The misleading impression left by the State’s direct examination was that she did not believe that a married man would initiate a sexual encounter with her. See Romero, 901 So.2d at 267. Docekal’s proposed cross-examination would have modified the State’s direct examination by removing this misleading impression. See id.

Even if the testimony would have been otherwise impermissible, the State opened the door to the testimony. The State’s argument that Doeekal opened the door is unavailing; when the victim stated she did not expect to be “in harm’s way,” a juror would conclude she referred to sexual advances. Thus, Docekal correctly notes “the concept of opening the door[,] [which] allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted.” Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000) (citations and internal quotation marks omitted). This concept is “based on considerations of fairness and the truth-seeking function of a trial.” Id. In light of her direct testimony and sexual relations with a married man on the night before the alleged rape, the court hampered the trial’s truth-seeking function by prohibiting Docekal’s cross-examination and, accordingly, abused its discretion.

The victim’s credibility was critically important in this “classic swearing match,” and the trial court’s failure to permit Docekal’s cross-examination cannot be considered harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Davis v. State, 527 So.2d 962, 963 (Fla. 5th DCA 1988).

The court’s limitation of Docekal’s cross-examination requires reversal, so we need not address his other arguments. Nevertheless, we address Docekal’s third argument to clarify that, under State v. Lalor, 842 So.2d 217, 219-20 (Fla. 5th DCA 2003), the State presented testimony that was legally sufficient to preclude judgment of acquittal.

Because the trial court erred by limiting Docekal’s cross-examination of the victim, where the victim claimed that she allowed Docekal to sleep in her bed because she would not be placed in harm’s way by a married man, we reverse and remand for a new trial.

REVERSE and REMAND for a new trial.

MONACO, J., concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent.

The question is whether the defense should have been able to inquire about the victim’s consensual sexual encounter (apparently consisting of oral sex) with a married man the night before she had the misfortune to endure the indisputably boorish and apparently criminal behavior of the defendant. The prejudicial effect of allowing such evidence is manifest; the question is whether the probative value justified allowing the evidence. The majority says that the judge had no discretion in the matter — that he was obliged to allow the inquiry on cross-examination because the victim had testified that she did not expect a married man to make (unwanted) sexual advances. I guess I’m dense, but I cannot see what the one has to do with the other. If the defendant had evidence that, the night before, this woman had been a victim of a sexual assault by a married man, I can at least see some impeachment value and maybe (though not really) not on a wholly collateral matter. But to say that by engaging in oral sex the evening before with a married man, she opened herself up to impeachment on the question whether she did not expect a sexual assault from a married man, is to ignore the difference between affection, or, even lust — and violence. The trial court was well within its discretion to disallow the question. This judgment should be affirmed.

      . § 794.01 l(4)(a), Fla. Stat. (2003).

      . § 794.011(5).

      . Lying in an embrace with each person on his or her side, and one person’s chest to the other’s back.

      . Kreitzer did not testify during the trial.

      . Florida’s Rape Shield statute, section 794.022, Florida Statutes (2005), prohibits introduction into evidence of specific instances of prior consensual sexual activity between the victim and any person other than the offender except in two instances: (1) if the evidence may prove that the defendant was not the source of the semen, pregnancy, injury or disease; or (2) if the evidence tends to establish a pattern of conduct on the part of the victim that is so similar to the conduct in this case that it is relevant to consent. Neither of these exceptions was established below and neither has been relied on.
      The cases do recognize a third (constitutional) exception, where, under the unique facts of a given case, what is usually irrelevant (i.e. prior sexual conduct of the victim) becomes relevant to establish the defendant’s defense. This usually involves a defendant’s claim that the other sexual relationship shows a motive on the part of the putative victim to fabricate the charge or to establish bias. See Kaplan v. State, 451 So.2d 1386, 1387 (Fla. 4th DCA 1984). Here, nothing about the victim’s consensual sexual conduct on the prior evening is relevant to the defendant's consent defense. This is not a case where protection of the defendant's Sixth Amendment constitutional rights is implicated; this is an ordinary, garden variety impeachment issue. Under the law of impeachment, the trial court was vested with wise discretion to allow or not to allow the cross-examination. In my view, the trial court certainly had the discretion to deny this cross-examination.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Joseph SHAW, Appellee/Cross-Appellant.
    No. 5D05-1947.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appel-lee/Cross-Appellant.
   ORFINGER, J.

After a jury determined that Joseph Shaw was a sexually violent predator requiring involuntary civil commitment pursuant to sections 394.910-.930, Florida Statutes (2001) (the “Jimmy Ryce Act”), the trial court granted Shaw’s motion for a directed verdict, which it had earlier taken under advisement. Because we conclude that the State presented adequate evidence to support the jury’s verdict, we reverse and remand with directions that the verdict be reinstated.

The State filed a petition for Shaw’s involuntary civil commitment under the Jimmy Ryce Act and a jury trial ensued, during which both sides presented substantial, and often conflicting, testimony. The State’s experts diagnosed Shaw as suffering from paranoid-type schizophrenia, paraphilia not otherwise specified (“paraphilia NOS”) and a conduct disorder. The State’s experts concluded that Shaw posed a danger to the community if not committed for long-term care and treatment. While Shaw’s experts agreed that he suffered from paranoid-type schizophrenia, they disagreed with the diagnosis of paraphilia NOS. One of Shaw’s experts testified that paraphilia NOS is a “bogus diagnosis, not recognized by the American Psychiatric Association.” That same expert also testified that there is “no scientific test available that allows us to predict the future risk of a juvenile sex offender [such as Shaw] reoffending as an adult with an acceptable level of accuracy.” Shaw’s second expert offered similar testimony.

At the close of the evidence, Shaw moved for a directed verdict, arguing that his prior sexual offenses were the result of his schizophrenia and not a mental abnormality or personality disorder. The trial court took the motion under advisement, but granted it post-trial after the jury unanimously found that Shaw was a sexually violent predator.

A motion for a directed verdict should be granted only when there is “no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999). “In reviewing such 'an order, the appellate court must view the evidence in a light most favorable to the non-moving party, resolve all conflicts in the evidence in favor of the non-movant, and construe every reasonable conclusion which may be drawn from the evidence in favor of the non-movant.” McQueen v. Jersani, 909 So.2d 491, 492-93 (Fla. 5th DCA 2005).

To be civilly committed as a sexually violent predator under the Jimmy Ryce Act, the State must prove, by clear and convincing evidence, that the alleged predator “(1) has been convicted of an enumerated sexually violent offense; and (2) suffers from a mental abnormality[] or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” State v. White, 891 So.2d 502, 502-03 (Fla.2004). The first element was not disputed, as Shaw was previously convicted of sexual battery against his nine-year-old brother in violation of section 794.011, Florida Statutes. See § 394.912(9)(d), Fla. Stat. (2001). Further, both sides agreed that Shaw suffers from some sort of mental abnormality. However, the parties disagreed as to whether Shaw’s mental illness makes him eligible for involuntary civil commitment.

In defending the trial court’s order, Shaw relies on section 65E-25.003(3) of the Florida Administrative Code, which provides that “an individual cannot be considered to meet the criteria for involuntary civil commitment as a sexually violent predator if the individual’s propensity to commit sexually violent offenses is wholly attributable to a mental illness as defined in Section 394.455, Florida Statutes (200[1]).” Section 394.455, Florida Statutes (2001), defines “mental illness” as “an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living, regardless of etiology....” In light of this provision, Shaw argues that he could not be involuntarily committed as a sexually violent predator because the State failed to prove that his sexual acts were not wholly attributable to his schizophrenia.

The State argues that section 65E-25.003(3) only addresses the requirements for filing a petition for commitment, and has no application to a trial court’s ruling on commitment under the Jimmy Ryce Act. The State also observes that the rule did not become effective until well after its petition to commit Shaw was filed. We need not address the State’s technical arguments regarding the impact of section 65E-25.003(3) because there was ample evidence presented at trial to support the State’s position and the jury’s conclusion that Shaw’s sexual misconduct was not wholly caused by his schizophrenia.

The testimony in this case demonstrated clear differences of opinion among the experts concerning whether Shaw is a sexually violent predator. The State’s experts all diagnosed Shaw with paraphilia NOS, while Shaw’s experts attributed his improper sexual behavior solely to his schizophrenia. In determining whether a person is a sexually violent predator, disputed expert testimony generally creates a question for the jury such that a directed verdict is improper. Galloway v. State, 900 So.2d 652, 653 (Fla. 5th DCA 2005). On appeal, this Court must resolve all conflicts in the evidence and construe every reasonable conclusion which may be drawn from the evidence in favor of the non-movant. McQueen, 909 So.2d at 492-93. Viewing the evidence in a light most favorable to the State, we conclude that there was legally sufficient evidence upon which a jury could predicate a verdict in the State’s favor.

Finding no merit in the other issues presented by the parties, we reverse the trial court’s order granting Shaw’s motion for directed verdict and remand with directions that judgment be entered consistent with the jury’s verdict.

REVERSED AND REMANDED.

GRIFFIN and THOMPSON, JJ., concur.

      . Although the trial court styled its order as one granting a judgment notwithstanding the verdict, it was, in actuality, an order on Shaw’s motion for a directed verdict. We consider and determine it in accordance with the relief requested in the motion. De Mendoza v. Bd. of County Comm’rs, 221 So.2d 797 (Fla. 3d DCA 1969).

      . The Diagnostic and Statistical Manual of Mental Disorders — Fourth Edition ("DSM-IV”) published by the American Psychiatric Association is the primary diagnostic referenced by mental health professionals in the United States. In its section on paraphilias, the DSM-IV states:
      The essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other nonconsent-ing persons that occur over , a period of at least 6 months.... For some individuals, paraphilic fantasies or stimuli are obligatory for erotic arousal and are always included in sexual activity. In other cases, the paraphilic preferences occur only episodically (e.g., perhaps during periods of stress), whereas at other times the person is able to function sexually without paraphilic fantasies or stimuli. For Pedophilia, Voyeurism, Exhibitionism, and Frotteurism, the diagnosis is made if the person has acted on these urges or the urges or sexual fantasies cause marked distress or interpersonal difficulty. For Sexual Sadism, the diagnosis is made if the person has acted on these urges with a nonconsenting person or the urges, sexual fantasies, or behaviors cause marked distress or interpersonal difficulty. For the remaining Paraphilias, the diagnosis is made if the behavior, sexual urges, or fantasies cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
      The Paraphilias described here are conditions that have been specifically identified by previous classifications. They include Exhibitionism (exposure of genitals), Fetishism (use of nonliving objects), Frotteurism (touching and rubbing against a noncon-senting person), Pedophilia (focus on prepubescent children), Sexual Masochism (receiving humiliation or suffering), Sexual Sadism (inflicting humiliation or suffering), Transvestic Fetishism (cross-dressing), and Voyeurism (observing sexual activity). A residual category, Paraphilia Not Otherwise Specified, includes other Paraphilias that are less frequently encountered. Not uncommonly, individuals have more than one Para-philia.

      Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR (Am. Psychiatric Publ'g, 4th ed.2000) (emphasis added).

      . The trial court's order simply grants Shaw's motion without elaboration.

      . For purposes of the Jimmy Ryce Act, a "mental abnormality” is defined as "a mental condition affecting a person's emotional or volitional capacity which predisposes the person to commit sexually violent offenses.” § 394.912(5), Fla. Stat. (2001). This is often proven at trial through expert testimony. Commitment of Smith v. State, 827 So.2d 1026, 1028 (Fla. 2d DCA 2002).


author: MONACO, J.

text:
    John Henry HALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2429.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.

      John H. Hall, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Inexplicably the appellant, John Henry Hall, made an open plea of guilty to the trial court with respect to various property crimes, even though punishment was sought of him as a prison releasee reoffen-der. He was sentenced to the mandatory 15 years in prison by virtue of that status, and because one the crimes he admitted to was a second-degree felony. What makes this inexplicable is that the State offered Mr. Hall in exchange for his plea a ten-year prison sentence, followed by five years of probation. In the face of a 15 year mandatory sentence, and given an offer of substantially less prison time by the State, Mr. Hall pled open to the court.

Mr. Hall did not take a direct appeal from his judgment and sentence. He sought relief by filing a motion pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In that motion Mr. Hall sought to withdraw his guilty plea because he contended that his counsel had assured him that he would not be sentenced to more than seven years in prison. He said, as well, that had he not had his attorney’s “promises,” he would have accepted the plea offer.

When Mr. Hall sought Rule 3.850 relief, the State admirably conceded that there was a miscommunication between Mr. Hall and his attorney regarding the effect of the open plea, and suggested that Mr. Hall be afforded counsel by the court for the post-conviction hearing. The trial court, however, declined to appoint counsel for him.

At the hearing Mr. Hall, appearing pro se, testified that his attorney told him that he would receive no more than seven years in prison if he pled open to the court. He said, as well, that the subject of his being a prison releasee reoffender was not mentioned until he was in the courtroom at the time he entered his plea. His attorney then testified that ordinarily she would not promise a specific sentence to a defendant, other than to say that the judge could always sentence a defendant to the maximum allowed by law. The prosecutor testified that on the morning of the plea hearing she mentioned to Mr. Hall’s defense counsel that the defendant was a prison releasee reoffender. According to the prosecutor, the response from defense counsel to this news was that “I’m going to go ahead and plea to the bench.”

At this point the State apparently realized that either there was a serious mis-eommunication between Mr. Hall and his counsel, or that counsel simply did not recognize the significance of the fact that Mr. Hall was legally bound to receive the fifteen year prison sentence required by statute. See § 775.082(9)(a)(3), Florida Statutes (2004). In order to salvage this situation the State graciously and commendably renewed the offer of ten years in prison, followed by five years probation. Mr. Hall readily agreed. But the trial court did not. Instead, the court declined to accept the State’s offer, and denied the motion for post-conviction relief saying without elaboration that this was “a question of a defendant outsmarting himself by trying to be too clever.” We think post-conviction relief is warranted.

The Florida Supreme Court has said on a number of occasions that there are three essential requirements that must be met in taking a guilty plea: (1) the plea must be voluntary; (2) the defendant must understand the nature of the charge and the consequences .of the plea; and (3) there must be a factual basis for the plea. See, e.g., State v. Perry, 786 So.2d 554, 557 (Fla.2001); Williams v. State, 316 So.2d 267, 271 (Fla.1975). In the present case, neither the second nor the third element are satisfied. Before a guilty plea can be accepted, there must be an “affirmative showing that it was entered intelligently and voluntarily.” See Scheller v. State, 327 So.2d 876, 877 (Fla. 2d DCA 1976). The defendant must be “sufficiently informed” so that he or she understands the consequences of the plea. See Altamirano v. State, 817 So.2d 1029, 1032 (Fla. 3d DCA 2002); see also Kadar v. State, 370 So.2d 1231 (Fla. 4th DCA 1979).

Here, it is virtually uncontradicted that Mr. Hall did not understand the effect of his plea to the court. At the plea hearing Mr. Hall’s counsel discussed the appellant’s long history of drug abuse, and asked the court for a community based sanction with a drug treatment component. She specifically asked that he not be sentenced to prison. Clearly, she was unaware of the effect that Mr. Hall’s prison releasee reoffender status would have on his sentence. Mr. Hall then also asked for a non-prison sanction. During the plea colloquy there was no mention by the trial court of the fifteen year mandatory sentence for his crimes. After his guilty plea was accepted and he was sentenced to fifteen years in prison, Mr. Hall’s reaction was to ask, “How much time did you give me, your Honor?”

Trial counsel should have been aware of the effect of Mr. Hall’s prison releasee reoffender status on his sentence, and she should have most assuredly either taken this case to trial or urged her client to accept the generous plea offer. Arguing for probation in the face of a mandatory prison sentence under the circumstances of this case amounts to ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, the trial court abused its discretion in failing to grant relief.

Accordingly, we reverse and remand with instructions either to allow Mr. Hall to withdraw his plea, or to allow Mr. Hall to accept the plea bargain offered by the State, if the State wishes to continue to extend it.

REVERSED AND REMANDED.

SHARP, W. and THOMPSON, JJ„ concur.


text:
    Christopher BRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-212.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Christopher Briggs, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Briggs appeals from the summary denial of his “Motion to Correct Error’s [sic] and for ‘Overlooked’ Jail Time Credit” filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Under the circumstances posed by the record in this case, we reverse.

The facts in this case are somewhat confusing because Briggs violated his probation three times and was awarded three different periods of days credit for times served. On December 7, 1992, he pled no contest to burglary with a battery and sexual battery and was sentenced to prison terms, followed by ten and three years on probation, on both counts. He was released, but later admitted violating his probation.

On September 3, 1999, he was sentenced for the violation to 78 days in jail with credit for 78 days time served. The court reinstated his probation on both counts.

On July 17, 2001, Briggs admitted he violated probation a second time. He was sentenced on both counts to concurrent terms of one year in the Orange County Jail with credit of 209 days for time served. Again, the court reinstated his probation.

On October 3, 2002, Briggs admitted violating probation a third' time. As part of the plea agreement, Briggs was to be sentenced to “12 YRS. DOC W/CTS.” The plea and sentencing transcript reflects the following dialogue between the trial court, Briggs, and Briggs’ counsel (Brett):

The Court: Christopher Briggs.
Brett: Mr. Briggs is charged with violation of probation, charged with picking up new charges of resisting an officer with violence and a failure to sign traffic citation. He was taken to court and given 30 days Orange County Jail.
We’re willing to stipulate to a factual basis. And the venue is correct before this court.
The Clerk: This is CR90-9619.

(Appellant is sworn in)

The Court: I need the waiver of appeal.
Brett: I apologize, Judge. Case number, one more time is?
The Court: 9619.
Brett: If he waives his prior time—
The Court: He has 178 days.
Brett: He’ll waive that, your honor.

(Standard plea colloquy ensues including Appellant’s affirmative indication that no force, threats, intimidation, or blackmail were used to get him to enter the plea agreement and that he signed the plea agreement freely and voluntarily.)

The Court: I’ll accept the plea because I And he is alert and intelligent and understands the nature of the charges, appreciates the consequences of what he’s doing, that the plea is freely, voluntarily and intelligently made based on the advice of his lawyer, with whom he says he is satisfied, and there is a factual basis for the plea.
Any reason we can’t have sentencing now?
Brett: Ño.
The Court: Anything you want to say before we do?
Brett: Nothing, your honor.
The Court: Adjudged to be guilty, probation revoked and terminated, remanded to the custody of the Department of Corrections State of Florida to be confined by them for a period of 12 years. My understanding is he’s agreed to waive his 178 days.
Brett: He will waive the 178 days credit, that’s correct.
The Court: Anybody use any force, threats, intimidation or blackmail to get you to—
Appellant: No, sir.
The Court: You’ve made that freely and voluntarily?
Appellant: Yes, sir.

(emphasis added).

The sentence imposed thereafter reflects that Briggs was officially sentenced to 12 years in the Department of Corrections with no jail credit.

Thereafter, Briggs lodged collateral attacks to obtain rights to jail and prison credit. He filed a motion on May 2, 2005, for an award for all previous jail time served. It was denied June 1, 2005. In denying the motion, the court ruled:

On October 23, 2002, the Defendant admitted to violating his probation for a third time. His plea agreement provided that he would be sentenced to “12 YRS. DOC W/ CTS”. However, during the plea colloquy, the Defendant waived his “prior time”, which the Court calculated as 178 days. This time was apparently calculated by using the time served from the Defendant’s first violation of probation (78) days and the time he was incarcerated on his third violation (July 16, 2002-October 23, 2002= 100 days). The time the Defendant served for his second violation was overlooked. The Defendant was sentenced to 12 years in the Department of Corrections with no jail credit, (citations omitted) (emphasis added).
The trial court later held as follows:
The Defendant now contends that he should be given credit for all previous jail time because it is statutorily mandated.
The Defendant’s allegation is without merit. A Defendant can validly enter into an agreement to waive his right to credit for time served. Epler v. Judges of the Thirteenth Judicial Circuit, 308 So.2d 134 (Fla. 2d DCA 1975). The record reflects that such a waiver occurred in this case. (See Exhibit “B” at page 2). Therefore, it is ORDERED that the Defendant’s Motion for All Jail Time is DENIED. The Defendant is advised that he may file an appeal in writing within 30 days form (sic) the date of rendition of this Order.

Although Briggs’ position on whether he waived jail time credit was not clear, in his unauthorized reply brief filed in this appeal, he takes the position that he does not dispute that he waived jail time credit during his plea hearing after his third violation. However, he contends that he only waived the 178 days mentioned during the plea colloquy. He asserts that he is entitled to an additional one year, 209 days for time served relating to his second revocation proceeding.

The 209 days served was acknowledged by the trial court in its various prior orders, one of which was attached to the current order under review, to show that a waiver occurred. In that order, the court admitted the time served for the second violation was overlooked in calculating the time waived (178 days) during the third revocation proceeding.

However, the record demonstrates that after Briggs’ second revocation hearing he was sentenced to one year in jail with 209 days credit for time served. Thus, at most, Briggs is only entitled to 209 days of credit. Further, the 209 days awarded at the second VOP proceeding may have included the 78 days from his first VOP proceeding.

In denying Briggs’ instant motion on December 21, 2005, the court added: “Although the Court miscalculated the previous credit to be 178 days, it is clear from the record that the Defendant was waiving all previous jail credit.”

The totality of the circumstances in this case persuade us that it is not clear that Briggs waived the 209 days from the second VOP proceeding, when his counsel specifically agreed to the 178 days. Further, the court admitted it overlooked the 209 days. The original plea agreement stated he would receive credit for all time served. Thus, the dialogue at the hearing quoted above is the sole basis to support any waiver.

The award of jail time credit is mandatory under section 921.161, Florida Statutes, unless the record clearly shows that the defendant waived his or her entitlement to such credit. See Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003); Haines v. State, 851 So.2d 831 (Fla. 1st DCA 2003). Further, a waiver of jail credit will not be presumed and the state has the burden to clearly establish a waiver occurred. See Ryan; Haines; Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000); Wells v. State, 751 So.2d 703 (Fla. 1st DCA 2000); Silverstein v. State, 654 So.2d 1040 (Fla. 4th DCA 1995). That was not done in this case.

Accordingly, we reverse the order denying credit for jail time served and remand to the trial court to award the 209 days that were “overlooked.” However, the trial court may reduce that award by 78 days if the records in this case show that the 78 days awarded in the first probation violation proceeding were included in the 209 days awarded in the second violation proceeding.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.