text:
    Mark O’HARA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5078.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      W. Thomas Wadley and Ira Berman of Yanchuck, Berman, Wadley & Zervos, P.A., St. Petersburg, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

Mark O’Hara was convicted of trafficking in hydrocodone based on his possession of 58 Vicodin tablets containing that substance. See § 893.135(l)(c)(l)(c), Fla. Stat. (2004). At his trial, he presented evidence that physicians had prescribed the medication for pain he suffered from a chronic inflammatory joint disease and from injuries he had sustained in an automobile accident. O’Hara urges us to reverse his conviction, claiming that the evidence established that he possessed the tablets legally. But appellate counsel concedes that this evidentiary issue was not raised at trial in a motion for judgment of acquittal. As such, it is not preserved for our review. See Stephens v. State, 787 So.2d 747, 753-54 (Fla.2001). Trial counsel did, however, preserve the second issue on appeal by asking the court to instruct the jury that it was not illegal to possess hydrocodone if it had been prescribed. The State objected to the instruction and the court denied the request. We hold that O’Hara was entitled to the instruction, and, accordingly, we reverse his conviction and remand for a new trial.

O’Hara contends that section 499.03(1), Florida Statutes (2004), and section 893.13(6) each provide a “prescription defense” to a charge of trafficking by possession under the drug trafficking statute, section 893.135. Section 499.03 is part of the chapter addressing Drug, Cosmetic, and Household Products. It states, in pertinent part:

(1) A person may not possess, or possess with intent to sell, dispense, or deliver, any habit-forming, toxic, harmful, ... or legend drug as defined in s. 499.003(25), unless the possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug.

§ 499.03(1) (emphasis supplied). Section 893.13(6), the criminal statute that prohibits and penalizes simple drug possession, contains a similar provision:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice ....

§ 893.13(6)(a) (emphasis supplied).

The drug trafficking statute, section 893.135, contains no express language setting forth a prescription defense. However, its proscriptions against the sale, delivery, or possession of trafficking amounts of certain drugs are prefaced by the following qualification: “Except as authorized in this chapter or in chapter ⅛99 and notwithstanding the provisions of s. 893.13: ...” § 893.135(1) (emphasis supplied). O’Hara argues that the emphasized language makes the above-quoted prescription defenses available to the defendant in a trafficking prosecution under section 893.135.

The State maintains that section 499.03(1) is simply inapplicable and does not provide a defense to a charge of trafficking by possession. It acknowledges that section 893.13(6)(a) provides a prescription defense to possession of controlled substances, but it contends that the defense does not apply to a defendant who is charged with possessing a trafficking amount. Cf. Neiner v. State, 875 So.2d 699, 700 (Fla. 4th DCA 2004) (discussing prescription defense in a case involving possession of a controlled substance that is not included in the trafficking statute). As we will discuss, the State is mistaken on both points.

We begin with section 499.03. To ascertain whether section 499.03(1) might authorize a defense to trafficking by possession of hydrocodone requires an odyssey through several statutes. By its terms, the defense under this subsection applies to possession of a “legend drug” as defined by section 499.003(25). That statute, in turn, defines “legend drug” as “any drug, including, but not limited to, finished dosage forms, or active ingredients subject to, defined by, or described by s. 503(b) of the Federal Food, Drug, and Cosmetic Act or s. 465.003(8), s. 499.007(12), or s. 499.0122(l)(b) or (c).”

Of those listed statutes, section 465.003(8), Florida Statutes (2004), provides the simplest definition: “legend drugs” are drugs that are “required by federal or state law to be dispensed only on a prescription.” Section 893.04(1) states that a pharmacist may dispense a “controlled substance” only “upon a written or oral prescription.” A controlled substance is defined in section 893.02(4) as “any substance named or described in Schedules I-V of s. 893.03.” Hydrocodone is one of those substances. § 893.03(2)(a)(l)(j), (3)(c)(3)-(4). Therefore, hydrocodone is a “legend drug” for purposes of section 499.03(1). As such, the statute does not prohibit its possession if “possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug.” Because the first subsection of the trafficking statute, section 893.135(1), excepts acts authorized under chapter 499 from the ambit of the described crimes, the authorized possession of hydrocodone under section 499.03(1) could provide a defense to O’Hara’s trafficking charge.

The State asserts that section 499.03(1) does not apply here because the statutes mentioned in the definitional subsection to which it refers, section 499.003(25), address topics other than criminal drug possession or drug trafficking. For example, the State dismisses the possibility that the statute we discussed in the preceding paragraph, section 465.003(8), could have any bearing here because chapter 465 deals with the regulation of pharmacists. But this view is undermined by the fact that section 499.03(1) wholly exempts pharmacists from its operation. After setting forth its prohibition against a “person” possessing legend drugs and its exception for the possession of drugs obtained by valid prescription, the statute states:

However, this section does not apply to the delivery of such drugs to persons included in any of the classes named in this subsection, or to the agents or employees of such persons, for use in the usual course of their businesses or practices or in the performance of their official duties, as the case may be; nor does this section apply to the possession of such drugs by those persons or their agents or employees for such use:
(a) A licensed pharmacist or any person under the licensed pharmacist’s supervision while acting within the scope of the licensed pharmacist’s practice;

§ 499.03(1). Clearly, then, the persons subject to the proscription set forth in section 499.03(1), as well as its exception for valid prescriptions, must be persons other than pharmacists. And this must be true even though one of the statutes to which the section refers for the definition of legend drugs deals with pharmacists. In other words, the fact that section 499.03 refers to a definitional statute contained in a chapter regulating pharmacists cannot be deemed to limit the application of section 499.03(1) to situations involving the regulation of pharmacists, because pharmacists have a blanket exemption from the operation of section 499.03(1) in any event.

It would appear, then, that section 499.03(1) authorizes a person to possess a legend drug, including hydrocodone, if he obtained the drug by a valid prescription. Further, that authorization has been expressly incorporated in the trafficking statute by the introductory sentence of section 893.135(1).

But our inquiry does not end there. As we have mentioned, there is also a prescription defense contained in the drug possession statute, section 893.13(6). It provides a defense to the eharge of simple possession of “controlled substances,” a category that includes hydrocodone but that is less inclusive than the “legend drugs” category that is the subject of section 499.03. Under one principle of statutory construction, it might be argued that the more specific statute, section 893.13, controls over the more general one, section 499.03. See State v. Cregan, 908 So.2d 387, 391 (Fla.2005); McKendry v. State, 641 So.2d 45, 46 (Fla.1994) (“[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.”). Consequently, we must also address the applicability of the section 893.13 prescription defense to a trafficking charge under section 893.135.

For this discussion, we return to the introductory sentence of the trafficking statute, section 893.135(1). Recall that O’Hara points to the first phrase of that sentence in support of his claim that there is a section 893.13(6)(a) prescription defense to a charge of trafficking by possession. But the State maintains that the second phrase of the sentence wholly precludes any reliance on section 893.13 in trafficking cases: “Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13: ...” § 893.135(1) (emphasis supplied).

This, according to the State, is “plain language” that means none of the provisions of section 893.13 can ever apply to the crimes delineated in section 893.135. The State invokes the oft-cited principle that when the language of a statute conveys a clear and definite meaning, courts will not resort to rules of statutory interpretation and construction. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). But this seemingly simple principle is subject to a number of qualifications. Under one of these, courts are admonished not to read statutory language in isolation. It must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part. See Thompson v. State, 695 So.2d 691, 692 (Fla.1997). Consistent with this principle, the doctrine of in pari materia requires us to construe statutes relating to the same subject matter together in order to harmonize them and to give effect to the Legislature’s intent. Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla.2005); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). Whenever possible, we must give full force to all statutory provisions. Doe v. Dep’t of Health, 948 So.2d 803, 808 (Fla. 2d DCA2006).

Applying these principles here, it is obvious that sections 893.13 and 893.135 are part of a statutory scheme addressing the possession of controlled substances, with the latter statute imposing more severe penalties for possessing larger, “trafficking,” amounts of the drugs. And, indeed, the legislative history of the phrase at issue here — “and notwithstanding the provisions of s. 893.13” — informs us that its very purpose was to harmonize the two statutes. The language was added to section 893.135 in 1980. Ch. 80-70, § 1, at 233-35, Laws of Fla. As initially filed, neither the Senate bill giving rise to that law, SB 296, nor its House counterpart, HB 263, contained the disputed language. Rather, the bills’ initial purpose simply was to amend the trafficking statute to include the drugs methaqualone and phen-cyclidine within its scope. But a Senate staff analysis pointed out the following problem:

This bill, as drafted, may create a duplication of penalties unless s. 893.13 is amended to except those quantities of Methaqualone and Phencyclidine to be covered by the trafficking section. Such an exception was made for large quantities of marijuana when the existing trafficking statute was created. However, certain other drugs covered by the trafficking statute, such as cocaine, were not excepted from s. 893.13, and thus, violations involving large quantities of these drugs may be prosecuted under either section. This duplication and any possible conflict could be eliminated by making the trafficking statute the exclusive provision for those drugs and quantities covered therein.

Fla. S. Comm, on Judiciary-Crim., CS for SB 296 (1980) Staff Analysis at 2 (May 1, 1980 (updated)) (available at Fla. Dep’t of State, State Archives, Tallahassee, Fla.) (emphases supplied). The final bill, Committee Substitute for House Bill 263, addressed the problem discussed in the Senate staff analysis, but it took a different approach. Instead of adding new exceptions to section 893.13, as proposed in the analysis, the bill deleted the existing exceptions in that statute and amended the introductory sentence of section 893.135 to include the language on which the State now relies. Ch. 80-70, §§ 1, 2, at 232-35; CS for SB 296 Staff Analysis.

This history discloses that the new language was placed in the statute to address a narrow concern: that offenders who possessed trafficking amounts of certain drugs might be prosecuted instead for simple possession under section 893.13, and thus they would be permitted to escape the more severe penalties mandated under the trafficking statute. Nothing in the enactment itself or in the history of the bills that resulted in the new law suggests that the Legislature intended or even contemplated the expansive reading advocated by the State, such that the exceptions or defenses in section 893.13 having nothing to do with penalties also would be excluded from the trafficking statute.

Indeed, the effect of the State’s interpretation of the trafficking statute would extend well beyond the prescription defense at issue here. Both section 499.03(1) and section 893.13(9) shield certain persons or entities who possess and deliver drugs, such as pharmacists, medical practitioners, hospitals, law enforcement officers, and the like, from the criminal prohibitions and penalties contained in the statutes. But in some instances the section 893.13 exemptions are broader than the ones contained in section 499.03. For example, section 499.03(l)(e) exempts “[a]n officer or employee of a federal, state, or local government,” whereas section 893.13(9)(e) excludes “[o]fficers or employees of state, federal, or local governments acting in their official capacity only, or informers acting under their jurisdiction. ” (Emphasis supplied.) If, as the State maintains, no part of section 893.13 applies to the trafficking law, informants acting under the orders of law enforcement could be prosecuted for trafficking. Law enforcement agencies, which commonly employ informers to enforce the drug possession law, would be unable to recruit them for investigations of drug trafficking.

It is impossible to fathom why the Legislature would endeavor to combat the more serious offense of drug trafficking by prescribing harsher penalties for that crime, and yet deprive law enforcement of an important weapon in that battle. Obviously, it would not; to do so would be unreasonable and ridiculous. This is yet another reason why we are obliged to reject the State’s literal interpretation of the statute. See Maddox v. State, 923 So.2d 442, 447 (Fla.2006) (stating the courts will not sanction a statutory reading that would lead to unreasonable or ridiculous results); Holly, 450 So.2d at 219; Doe, 948 So.2d at 808.

The State’s construction is no less unreasonable in the context of the case before us, involving the drug trafficking prosecution of a man who possessed hy-drocodone that he obtained by prescription. At the time of his arrest, O’Hara had 58 Vicodin tablets in his possession, but under the State’s theory he would have violated the trafficking law even if he had possessed far fewer. Section 893.135(l)(c)(l)(a) establishes a three-year minimum mandatory prison term for possession of “4 grams or more, but less than 14 grams” of hydrocodone. Under the statute, when a controlled substance is mixed with another substance in a pill, the weight of the controlled substance is deemed to be the total weight of the mixture, “including the controlled substance and any other substance in the mixture.” § 893.135(6). One prescription Vicodin tablet contains 5 milligrams of hydroco-done and 500 milligrams of acetaminophen, the drug sold under the brand name Tylenol. See Physicians’ Drug Reference, 526 (59th ed., Thompson 2005). For purposes of the trafficking statute, then, each tablet would be deemed to contain 505 milligrams of the controlled substance. Therefore, to exceed the minimum drug trafficking threshold of four grams would require only eight of these tablets.

The dosage recommended by Vicodin’s manufacturer is one or two tablets every four to six hours, not to exceed eight per day. Id. at 527. If we were to accept the State’s assertion that there is no prescription exception to the offense of drug trafficking by possession, then we would have to conclude that any person who leaves a pharmacy with only one day’s worth of properly prescribed Yicodin in hand is guilty of drug trafficking and subject to at least a three-year minimum mandatory prison term and a fine of at least $50,000. One of the doctors who appeared at O’Hara’s trial testified that in the course of his practice he had written prescriptions for up to 60 Vicodin tablets. Under the trafficking statute, that many Vicodin tablets would be deemed to contain over 30 grams of hydrocodone. According to the State’s reasoning in this case, any patient who had the doctor’s prescription filled was subject to a twenty-five year minimum mandatory prison term and a mandatory fine of $500,000. See § 893.135(l)(c)(l)(c) (specifying penalty for possessing 28 grams or more, but less than 30 kilograms).

Standing alone, that proposition is absurd. But it is even more so when considering that the unwitting patient’s criminal “culpability” would be less if only his doctor chose to prescribe his pain medication in another, more powerful, form. A Vico-profen tablet contains 7.5 milligrams of hydrocodone, and its recommended dosage is one tablet every four to six hours to a maximum of five in 24 hours. Physicians’ Drug Reference at 529, 531. It differs from Vicodin in two other notable ways. First: instead of acetaminophen, in Vico-profen the hydrocodone is mixed with ibuprofen, the medication sold over the counter under the brand name Advil. Id. at 529. Second, and most important: whereas a Vicodin tablet weighs 505 milligrams, the total weight of a Vicoprofen tablet is only 207.5 milligrams. Id.

As noted above, under the State’s position a patient who left the drug store with 60 validly prescribed Vicoden tablets would face a minimum mandatory prison term of 25 years and a fine of $500,000. But if the 60 tablets in his possession were Vicoprofen, his minimum mandatory punishments would be fully ten years fewer and $400,000 less. See § 893.135(l)(c)(l)(b) (specifying penalty for possessing 14 grams or more, but less than 28 grams). This would be true notwithstanding that in the latter scenario the patient possessed the same number of tablets containing fifty percent more hydroco-done as in the former. For that matter, it is possible to illicitly possess as many as 19 Vicoprofen tablets without implicating the trafficking statute. But if the State is correct, a patient with only eight prescribed Vicoden tablets — fewer than half as many tablets containing less than a third as much hydrocodone — would be a drug trafficker subject to a mandatory minimum prison term of three years and a mandatory fine of $50,000. We are obliged by law to reject an interpretation of the statute that would lead to such ridiculous results. See Maddox, 923 So.2d at 447; Holly, 450 So.2d at 219; Doe, 948 So.2d at 808.

Our stance in this matter is buttressed by our knowledge that in another context, also involving hydrocodone, the Legislature allowed its determination to prevent the misuse of narcotics to be tempered by its concern for the plight of Florida patients who must take these drugs to control their pain. In 2000, the Legislature removed hydrocodone from Schedule III, leaving it only as a Schedule II drug. Ch.2000-320, § 2, at 3843, Laws of Fla. The effect of this legislation was to prohibit refills of prescription drugs like Vicodin. Compare § 893.04(l)(f) (prohibiting physicians from including refills on a prescription for a Schedule II controlled substance) with § 893.04(l)(g) (stating that a prescription for a Schedule III controlled substance may be filled or refilled five times during a six-month period).

Following the enactment of chapter 2000-320, numerous individuals and associations, including legislators, physicians, the Florida Board of Medicine and the Director of the State Office of Drug Control, wrote letters expressing their concern that removing hydrocodone from Schedule III posed a danger to the public because patients with chronic illnesses would be unable to obtain prescriptions that included refills. See Fla. S. Comm, on Justiee-Crim, CS for SB 232 at 6 (2001) Staff Analysis (Mar. 7, 2001) (available at http:// www.flsenate. gov/data/session/ 2001/Sen-ate/bills/ analysis/pdf/ 2001S0232.CJ.pdf); Department of Legal Affairs Emergency Rule No. 2ER00-1, 26 Fla. Admin. W. 36 (Sept. 8, 2000) (noting that the deletion of hydrocodone from Schedule III “will create an undue and unintended disruption upon the legitimate medical use of numerous medical products”). At the urging of the Florida Board of Medicine and the Florida Board of Pharmacy, the Attorney General exercised his authority under section 893.0355(2) to retain hydrocodone as a Schedule III drug. See Emergency Rule No. 2ER00-1.

In its next session, the Legislature reinstated hydrocodone as a Schedule III drug, but it made the trafficking statute applicable to either Schedule II or Schedule III hydrocodone. Ch.2001-55, §§ 1, 2, at 357-60, Laws of Fla. A Senate staff analysis of that legislation observed that in 1999 Vicodin was the fifth-most prescribed medication in the United States. It also reported that the sponsors of the 2000 legislation that removed hydrocodone from Schedule III had stated that “it was not their intent to burden patients legitimately using prescription medications containing hydrocodone.” CS for SB 232 Staff Analysis at 1, 7.

That episode, albeit not directly on point, is telling: as it must, the Legislature endeavors to achieve an appropriate balance between its duty to protect the public from the illicit trade in narcotics and its duty to ensure the ability of the afflicted to obtain drugs that are critical to their well-being. It is impossible to reconcile that endeavor with the State’s position about the meaning of section 893.135(1). If, as the State contends, this subsection precludes prescription defenses in trafficking prosecutions, patients may not legally possess Yicodin unless their doctors write prescriptions for less than a day’s recommended dosage. Any patient who needs more of the drug would be forced to refill the prescription every day. Under section 893.04(l)(g), which permits prescriptions for controlled substances to be filled or refilled a total of five times during a six-month period, the patient’s ability to obtain refills would terminate in less than a week. Judging by its quick response to the public health ramifications of removing hydrocodone from Schedule III, it is unimaginable that the Legislature would endanger the public by imposing such an onerous burden as that advocated by the State in this case.

To summarize, section 499.03 and section 893.13 allow a person to legally possess either a legend drug or a controlled substance when the drug was obtained pursuant to a valid prescription. These statutes apply even when a person possesses a trafficking amount of hydroco-done. O’Hara presented evidence that the hydrocodone tablets he possessed had been prescribed by physicians and obtained from a pharmacy. Having presented evidence of his defense at trial, he was entitled to have the defense presented to the jury in an instruction. See Thomas v. State, 787 So.2d 27, 29 (Fla. 2d DCA 2001). Therefore, the trial court erred when it denied O’Hara’s request for a jury instruction that it was not illegal to possess hy-drocodone if it had been prescribed. Accordingly, we reverse O’Hara’s conviction and remand for a new trial.

As previously mentioned, in his first trial O’Hara did not raise this issue as a basis for his motion for judgment of acquittal. He is not precluded from doing so, if appropriate, at his new trial.

Reversed and remanded for a new trial.

SALCINES and VILLANTI, JJ., Concur.

      . The definitional section for chapter 499 defines "person” as
      any individual, child, joint venture, syndicate, fiduciary, partnership, corporation, division of a corporation, firm, trust, business trust, company, estate, public or private institution, association, organization, group, city, county, city and county, political subdivision of this state, other governmental agency within this state, and any representative, agent, or agency of any of the foregoing, or any other group or combination of the foregoing.
      § 499.003(32).

      . Vicodin is produced in other forms and strengths. Vicodin ES tablets contain 7.5 milligrams of hydrocodone and 750 milligrams of acetaminophen. Physicians' Drug Reference at 527. Vicodin HP contains 10 milligrams of hydrocodone and 660 milligrams of acetaminophen. Id. at 528. Vico-profen contains 7.5 milligrams of hydroco-done and 200 milligrams of ibuprofen. Id. at 529.

      . Hydrocodone is both a Schedule II and a Schedule III drug. § 893.03(2)(a)(l)(j), (3)(c)(3)-(4). A Schedule III drug "has a currently accepted medical use in treatment in the United States." § 893.03(3). Prescription Vicodin tablets would be included in Schedule III because they contain, at the most, 10 milligrams of hydrocodone per tablet. See § 893.03(3)(c)(4) (placing hydrocodone in Schedule III if a dosage unit contains "not more than 15 milligrams” of the drug, with recognized therapeutic amounts of active ingredients that are not controlled substances).


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    PINELLAS COUNTY, Florida, a political subdivision, Appellant, v. CITY OF LARGO, Florida, a municipal corporation, and City of Seminole, Florida, a municipal corporation, Appellees.
    No. 2D06-4826.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      David S. Sadowsky, Assistant County Attorney, Clearwater, for Appellant.
    Alan S. Zimmet and Natalie D. Wilhelm of Zimmet, Unice, Salzman & Heyman, P.A., Clearwater, for Appellee City of Largo.
    John M. Elias, Clearwater, for Appellee City of Seminole.
    James W. Denhardt, St. Petersburg, for Appellee City of Pinellas Park (as Interve-nor).
    Thomas B. Drage, Jr., County Attorney, and Joel D. Prinsell, Deputy County Attorney, Orlando, and Linda Brehmer Lanosa, Assistant County Attorney, Orlando, for Appellant’s Amicus Curiae Orange County.
    Harry Morrison, General Counsel, and Rebecca O’Hara, Deputy General Counsel, Tallahassee, for Appellee’s Amicus Curiae Florida League of Cities, Inc., and John C. Wolfe, City Attorney, and Jeanne Hoff-mann, Assistant City Attorney, St. Peters-burg, for Appellee’s Amicus Curiae City of St. Petersburg.
   LaROSE, Judge.

Pinellas County (the County) appeals the trial court’s final summary judgment entered in favor of the City of Largo and the City of Seminole (the Cities). The judgment invalidated three ordinances by which the County attempted to create an exclusive method of voluntary municipal annexation. The judgment recites that section 171.044(4), Florida Statutes (2005), did not allow the County to adopt such a method. We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A). We affirm the judgment. We hold that the County may provide an exclusive method of voluntary municipal annexation in its charter under section 171.044(4). The County’s exclusive method of voluntary municipal annexation, however, was ineffective because it was not set forth in the County charter and approved by the voters.

Background

The Municipal Annexation or Contraction Act (the Act), enacted in 1974, underlies this case. See §§ 171.011 — .094; ch. 74-190, § 1, at 502-11, Laws of Fla. The central issue for our review is whether and how the County may adopt an exclusive method of voluntary municipal annexation. At the outset, we note that our constitution specifically addresses municipal annexation:

Municipal annexation of unincorporated territory, merger of municipalities, and exercise of extra-territorial powers by municipalities shall be as provided by general or special law.

Art. VIII, § 2(c), Fla. Const. Although annexation power resides in the first instance with the legislature, the legislature may share that power. See N. Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So.2d 461, 464 (Fla.1979). The Act, a general law, establishes procedures for adjusting municipal boundaries. The Act reflects a legislative determination that municipal annexation or contractions should (1) ensure sound urban development and accommodation to growth, (2) be made pursuant to uniform legislative statewide standards, (3) ensure the efficient provision of urban services to areas that become urban in character, and (4) ensure that areas are not annexed unless municipal services can be provided to those areas. § 171.021; see also § 171.022 (stating that the purpose of the Act is to provide viable and usable general law standards and procedures for adjusting the boundaries of municipalities; repealing provisions of any special act or municipal charter relating to the adjusting of municipal boundaries in effect on October 1, 1974).

The Act provides two methods of annexation. The first is by referendum. A municipality may annex contiguous, compact, unincorporated territory according to set procedures, including a vote by the electors in the proposed annexation area. See § 171.0413.

The second method — voluntary annexation — allows all property owners in unincorporated, reasonably compact areas contiguous to a municipality to petition the municipality for annexation. See § 171.044. The 1974 version of the Act provided that voluntary annexation “shall be supplemental to the other provisions of this chapter.” § 171.044(4), Fla. Stat. (Supp.1974). Therefore, voluntary annexation was an alternative to annexation by referendum. In 1975, the legislature amended section 171.044(4) to add language that remains in effect today:

(4) The method of annexation provided by this section shall be supplemental to any other procedure provided by general or special law, except that this section shall not apply to municipalities in counties with charters which provide for an exclusive method of municipal annexation.

See ch. 75-297, § 4, at 1079, Laws of Fla. (emphasis added).

When the legislature amended section 171.044(4) in 1975, the County was not a charter county. It became a charter county in 1980. Its charter does not provide for an exclusive method of voluntary municipal annexation.

Our record suggests that the County's growth, increasing density, and planning needs counseled in favor of a county-wide method of voluntary municipal annexation. Accordingly, in November 2000, the County’s voters adopted Ordinance 00-66 (the Charter Ordinance). The Charter Ordinance amended the County charter to provide that all voluntary annexations must comport with an exclusive method and criteria to be set forth in another ordinance. Concurrently, the County commission adopted Ordinance 00-63 (the Voluntary Annexation Ordinance) that provided the exclusive method for voluntary annexation, delineating areas eligible for municipal annexation.

The lawsuit underlying this appeal stems from the County commission’s adoption of Ordinance 02-48 (the Contraction Ordinance). The County sought to contract the size of certain municipalities, including the Cities. A “ ‘contraction’ means the reversion of real property within municipal boundaries to an unincorporated status.” § 171.031(2). The Cities filed suit seeking to invalidate all three ordinances.

The Cities moved for summary judgment. The trial court concluded that section 171.044(4) did not allow the County to adopt its own method of annexation. Alternatively, the trial court concluded that the Charter Ordinance violated general law because it did not provide for an exclusive method of voluntary municipal annexation in the county charter; it merely delegated the authority to do so by ordinance to the County commission. As a consequence of these rulings, the Voluntary Annexation Ordinance and the Contraction Ordinance necessarily were invalid.

On appeal, the County argues that section 171.044(4) allows charter counties to provide for an exclusive method of voluntary municipal annexation. It also argues that such method can be set forth in an ordinance. The Cities, on the other hand, contend that part I of chapter 171 preempts the entire field of annexation and does not authorize charter counties to regulate voluntary annexation. The Cities argue that, even if charter counties have such authority, the method of voluntary annexation must rest in the County charter.

Analysis

The trial court’s final summary judgment is based on an interpretation of section 171.044(4). Our “standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.” Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007) (quoting Major League Baseball v. Morsani 790 So.2d 1071, 1074 (Fla.2001)). “Statutory interpretation is a question of law subject to de novo review.” BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003); see also State v. Serrago, 875 So.2d 815, 818 (Fla. 2d DCA 2004).

The Fourth District recently addressed the issue before us in Village of Wellington v. Palm Beach County, 941 So.2d 595 (Fla. 4th DCA 2006). The result is sound. Accordingly, we align ourselves with our sister district.

In Village of Wellington, Palm Beach County attempted by a charter amendment to provide for an exclusive method of voluntary municipal annexation. Id. at 597. As here, the amendment authorized the Palm Beach County Commission to adopt, by ordinance, the method of voluntary municipal annexation. See id. at 598. Affirming the trial court, the Fourth District held that the “requirement in section 171.044(4) that the exclusive method of voluntary annexation be contained in the Charter itself was violated by allowing the County Commission to use an ordinance to accomplish the same goal.” Id. at 601. We agree that article VIII, section (l)(g) of the Florida Constitution and section 171.044(4) require that any exclusive method of voluntary municipal annexation be contained in the county charter.

Village of Wellington also held that the trial court correctly interpreted section 171.044(4) to allow charter counties to provide their own exclusive methods of voluntary municipal annexation. Id. at 600. Again, we agree with the Fourth District. The Fourth District, however, did not detail its reasoning. Presumably, it found the statute clear and unambiguous. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (when language of statute is clear and unambiguous and conveys a clear and definite meaning, there is no reason to resort to rules of statutory interpretation and construction; statute must be given its plain and obvious meaning).

1. Charter County Authority to Adopt Exclusive Method of Voluntary Annexation.

Under the Act, the voluntary annexation provisions of section 171.044(4) are inapplicable “to municipalities in counties with charters which provide for an exclusive method of municipal annexation.” § 171.044(4). On its face, the statute contemplates that a charter county may provide for its own exclusive method of voluntary annexation. Only then do the section 171.044(4) voluntary annexation provisions not apply to the pertinent municipalities. Reading chapter 171 as a whole, we are convinced that the legislature intended such a result. See Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003).

Particularly telling is the 2006 enactment of part II of chapter 171, providing for Interlocal Service Boundary Agreements. See § 171.20-212, Fla. Stat. (2006). The legislature specifically referred to section 171.044(4):

Effect of part on interlocal agreement and county charter. — ... [A] charter provision adopted under s. 171.011(1) ... is not affected by this part .... A local government within a county that has adopted a charter provision pursuant to s. 171.011(1) may avail itself of the provisions of this part which authorize an interlocal service boundary agreement if such interlocal agreement is consistent with the charter of that county, as the charter was approved, revised, or amended pursuant to s. 125.64.[]

See § 171.21 (emphasis added).

In our view, the legislature recognized and anticipated that a charter county can adopt an exclusive method of voluntary municipal annexation. The language of section 171.044(4), reinforced by subsequent legislation, leads inexorably to the conclusion that the County may provide for such a method. See Village of Wellington, 941 So.2d at 600.

The Cities caution us that the legislature preempted the field of annexation, thus withholding from charter counties any authority over annexation matters. Relying principally on SCA Services of Florida, Inc. v. City of Tallahassee, 418 So.2d 1148, 1150 (Fla. 1st DCA 1982), the Cities posit that the purposes of the Act listed in section 171.021, read in conjunction with section 171.022, prohibit charter counties from adopting an exclusive method of voluntary municipal annexation. SCA Services concluded that the legislature intended to provide a clearly defined and exclusive method for annexation and to share its annexation power with municipalities. 418 So.2d at 1149. SCA Services does not address county government powers, and we cannot discern that it directly involved section 171.044(4). In any event, the appellee, there, had not met the prerequisites for annexation. Id.

Here, the trial court concluded that section 171.044(4) did not allow the County to adopt an exclusive method of voluntary municipal annexation. The trial court’s reliance on Charlotte County Board of County Commissioners v. Taylor, 650 So.2d 146, 148-49 (Fla. 2d DCA 1995), and Ellis v. Burk, 866 So.2d 1236, 1238-39 (Fla. 5th DCA 2004), suggests that it found that allowing charter counties to do so would create inconsistency with a general law that already provided for the exclusive method of voluntary annexation. Taylor and Burk' involved county charter tax cap amendments that were preempted by statutory budget and tax rate provisions. Their holdings are inapposite here.

The legislature can expressly or impliedly preempt counties’ authority to act. Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005). Preemption takes an area in which local government might otherwise act and reserves that area for regulation exclusively by the legislature. Id. Express preemption requires clear language stating such intent. Id.

The so-called preemption provision of the Act provides:

Preemption; effect on special laws.—
(1) It is further the purpose of this act to provide viable and usable general law standards and procedures for adjusting the boundaries of municipalities in this state.
(2) The provisions of any special act or municipal charter relating to the adjusting of municipal boundaries in effect on October 1, 1974, are repealed except as otherwise provided herein.

Section 171.022 identifies a legislative purpose and repeals specified legislative or municipal charter provisions. We cannot conclude that this language reflects a clear and unambiguous legislative intent to oust charter counties from the annexation arena, especially when section 171.044(4) envisions such involvement.

To the extent that the Cities urge us to find implied preemption, we are unpersuaded. We will imply preemption only when “the legislative scheme is so pervasive as .kt evidence an intent to preempt the particular area and where strong public policy reasons exist’ ” for finding preemption. Phantom of Clearwater, 894 So.2d at 1019 (quoting Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826 (Fla. 1st DCA 1996)). “When courts create preemption by implication, the preempted field is usually a narrowly defined field, limited to the specific area where the Legislature has expressed their will to be the sole regulator.’ ” Id. Reading sections 171.021, 171.022(1), and 171.044(4) together, we discern no implied preemption in the field of voluntary annexation in charter counties.

Next, we must address the Cities’ concern that allowing charter counties to adopt an exclusive method of voluntary municipal annexation undermines the Act’s purposes and gives unfettered discretion to a charter county in devising its voluntary annexation method. We reject the suggestion that a charter county can proceed unchecked. Importantly, a charter county cannot act contrary to constitutional or general law. See art. VIII, § 1(g), Fla. Const.; State v. Sarasota County, 549 So.2d 659, 660 (Fla.1989) (explaining that charter provisions inconsistent with general law will be unconstitutional under article VIII, section 1(g) if “inconsistent with general law”-i.e., “contradictory in the sense of legislative provisions which cannot coexist.” (citations omitted)). Further, the Act, itself, constrains a charter county. For example, any annexation “shall be designed in such a manner as to ensure that the area will be reasonably compact.” § 171.031(12). And, of course, a charter county’s method of voluntary municipal annexation must be consistent with the Act’s purposes as expressed in section 171.021. We are also mindful that any authority bestowed by section 171.044(4) is a statutory grant subject to legislative amendment, another check on charter county action.

Apparently recognizing the unique concerns of local areas, however, the legislature devised a plan, limited to charter counties in the area of voluntary annexation, that fosters local experimentation. A charter county may devise a method of voluntary annexation that differs from one adopted by another charter county. But, that experimentation remains constrained by general law. Thus, charter counties must act uniformly in the sense that they advance the Act’s purposes.

The Cities also argue that section 171.044(4) was intended to apply only to Dade County, the only constitutionally-recognized charter county in Florida. See art. VIII, § 6(e), (f), Fla. Const. We are unpersuaded. Section 171.071 provides that

Municipalities within the boundaries of Dade County shall adopt annexation or contraction ordinances pursuant to methods established by the home rule charter established pursuant to s. 6(e), Art. VIII of the State Constitution.

Section 171.044(4) speaks in terms of “counties with charters.” The use of the plural does not support the limitation urged by the Cities. Moreover, on its face, section 171.071 limits municipalities within Dade County. The language says nothing about other charter counties.

We are similarly unmoved by the Cities’ argument that only counties that had charters in 1974 or 1975 fall under section 171.044(4). The statutory language supports no such limitation.

To the extent that the trial court concluded that a charter county could not adopt an exclusive method of voluntary municipal annexation, it erred.

2. Placement of Voluntary Annexation Method, in Charter.

We join the Fourth District in holding that an exclusive method of voluntary municipal annexation by a charter county must be contained in the charter. See Village of Wellington, 941 So.2d at 601. The statutory language of section 171.044(4) compels that result. See Acosta v. Richter, 671 So.2d 149, 153-54 (Fla. 1996). Section 171.044’s voluntary annexation provisions do not apply to municipalities “in counties with charters which provide for an exclusive method of municipal annexation.” § 171.044(4). A plain reading of the statute makes obvious that the charter, itself, set forth the method, not that charter counties may delineate the process in an ordinance.

Our conclusion, again, is bolstered by section 171.21. The two references in section 171.21 to a charter provision discussed earlier reflect a legislative intent that the method of annexation be in the charter, not in an ordinance.

The Charter Ordinance, No. GO-66, does not set forth the exclusive method of annexation; the Voluntary Annexation Ordinance, No. 00-63, accomplishes that task. Given the statutory language, however, we cannot accept the County’s position that the legislature intended to delegate the power to delineate the voluntary annexation framework to county officials. That power resides with the voters who may amend their charter to provide such a method. See Village of Wellington, 941 So.2d at 601. The trial court correctly ruled in favor of the Cities on this point.

Conclusion

In summary, we hold that section 171.044(4) allows the County to provide an exclusive method of voluntary municipal annexation in its charter. Although the trial court erred in concluding that a charter cannot provide for such a method, the trial court properly invalidated the County’s ordinances that purported to implement an exclusive method of voluntary municipal annexation. Ultimately, the Cities were entitled to a final summary judgment in their favor.

Summary judgment affirmed.

NORTHCUTT, C.J., and SALCINES, J., Concur.

      . Although legislative history is scant, chapter 75-297 apparently arose by committee substitute for House Bill No. 1231. The Committee on Community Affairs Staff Summary of House Bill No. 1231 indicates that the 1975 proposed amendments to chapter 171 were designed to "eliminate present inconsistencies and problem areas.” The language added in the 1975 amendment was part of the 1973 predecessor statute, albeit briefly. See § 171.16(4), Fla. Stat. (1973); ch. 73-129, § 1, at 238-39, Laws of Fla. See also City of Sweetwater v. Dade County, 343 So.2d 953, 953 (Fla. 3d DCA 1977).

      . Florida’s charter counties numbered 19 as of 2005: Alachua, Brevard, Broward, Charlotte, Clay, Columbia, Duval, Hillsborough, Lee, Leon, Miami-Dade, Orange, Osceola, Palm Beach, Pinellas, Polk, Sarasota, Seminole, and Volusia. Florida Association of Counties— http ://www.fl-counties. com/ aboutflco/charter counties.shtml. Charters are formal written documents that confer powers, duties, or privileges on the county and must be approved, along with any amendments, by the voters of the county. Id.

      . The parties do not dispute that the language at issue in section 171.044(4) applies only to voluntary annexation. See Village of Wellington v. Palm Beach County, 941 So.2d 595, 600 (Fla. 4th DCA 2006), review denied, 954 So.2d 29 (2007) (holding that the subject of section 171.044(4) is voluntary annexation).

      . In enacting part II, the legislature established a more flexible process for adjusting municipal boundaries and to address the effects of annexation, to encourage intergovernmental coordination in planning, service delivery, and boundary adjustments, and to reduce intergovernmental conflicts and litigation. See § 171.201.

      . Section 125.64, Florida Statutes (2005), provides for adoption of a county charter by vote of the county's electors. Section 125.60 provides that "[a]ny county not having a chartered form of consolidated government may ... locally initiate and adopt by a majority vote of the qualified electors of the county a county home rule charter.”

      . CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.
      Art. VIII, § 1(g), Fla. Const.


author: SILBERMAN, Judge.

text:
    Leroy JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-4616.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
    Leroy Jones, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.
   SILBERMAN, Judge.

Leroy Jones, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises several claims of ineffective assistance of appellate counsel. We grant the petition as it relates to one of the claims, and we deny the remaining claims without discussion.

Jones was convicted, after jury trial, of second-degree murder. The trial court imposed a sentence of life imprisonment both as a violent career criminal and as a habitual felony offender. The conviction and sentence were affirmed on direct appeal. Jones v. State, 910 So.2d 267 (Fla. 2d DCA 2005) (table decision). Jones contends, and we agree, that appellate counsel was ineffective in failing to raise the issue on direct appeal that the trial court improperly sentenced him as both a habitual felony offender and a violent career criminal.

In support of his claim, Jones relies on Clines v. State, 912 So.2d 550 (Fla.2005). Clines was sentenced as a habitual felony offender and a violent career criminal for the offense of resisting arrest with violence. Id. at 554. Clines’ appellate attorney filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct a sentencing error, arguing that he could not be designated as both a habitual felony offender and a violent career criminal. Id. The trial court denied the motion, and the First District affirmed the sentence, concluding that “such a sentence violates neither double jeopardy protections nor legislative intent.” Clines v. State, 881 So.2d 721, 722 (Fla. 1st DCA 2004). The supreme court disagreed with the First District’s conclusion and remanded for re-sentencing, holding that only one recidivist category in section 775.084, Florida Statutes (2002), may be applied to any given criminal sentence. Clines, 912 So.2d at 560. The supreme court noted that “the original sentence given to Clines for resisting arrest — a ten-year term of imprisonment with a ten-year mandatory minimum — would be authorized on remand by the violent career criminal category alone.” Id.

The supreme court’s decision in Clines issued during the pendency of the direct appeal in this case. The supreme court granted review in Clines based on the First District’s certification of conflict with this court’s holding in Works v. State, 814 So.2d 1198 (Fla. 2d DCA 2002), and the Fourth District’s holding in Oberst v. State, 796 So.2d 1263 (Fla. 4th DCA 2001). The opinion in Works issued prior to the conviction in the present case and was available to appellate counsel. Works was sentenced as both a habitual felony offender and a violent career criminal for the offense of shooting at, within, or into an occupied vehicle. 814 So.2d at 1199. We reversed Works’ sentence and instructed the trial court that, on remand, it could only sentence Works as a habitual felony offender or a violent career criminal. Id. Works’ appellate attorney preserved this issue for appeal by filing a rule 3.800(b)(2) motion in the trial court. Id.

In the present case, had appellate counsel properly filed a rule 3.800(b)(2) motion in the trial court alleging that Jones was improperly sentenced as both a habitual offender and a violent career criminal, and had the trial court erroneously denied the motion, we would have been compelled to reverse Jones’s sentence. Appellate counsel’s failure to preserve this sentencing error for appellate review by way of a rule 3.800(b)(2) motion constitutes ineffective assistance of counsel. See Gisi v. State, 848 So.2d 1278, 1282 (Fla. 2d DCA 2008).

Accordingly, we grant the petition solely as it relates to this claim. Because a new appeal would be redundant, we reverse Jones’s sentence and remand with directions to the trial court to resentence Jones in accordance with this opinion. See Hakkenberg v. State, 889 So.2d 935, 937 (Fla. 2d DCA 2004).

The petition is denied in part and granted in part.

KELLY and VILLANTI, JJ, Concur.

      . Jones was sentenced pursuant to section 775.084, Florida Statutes (2001). However, the year of the statute does not impact our decision in this case.


author: FULMER, Judge.

text:
    Titus L. BELLOT, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3980.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Titus Bellot pleaded no contest to one count each of armed trespass, resisting or obstructing an officer without violence, and attempted robbery by sudden snatching. He appeals from a restitution order requiring him to pay a total of $22,679.85 to four healthcare providers involved in the treatment of the victim of the offenses charged in the first and third counts. We affirm as to one item of restitution but reverse as to the other items because the State failed to adduce sufficient evidence to support the remainder of the restitution award.

At the restitution hearing, the only testimony relevant to this appeal was given by the victim, Luis Garcia-Casillas (“Mr. Garcia”), who testified that Bellot entered his house and attempted to snatch a bracelet off his wrist. A fight ensued, with Mr. Garcia eventually gaining the upper hand and holding Bellot in place. The police arrived after the fight had gone on for fifteen or twenty minutes. The police called an ambulance because Mr. Garcia “felt very agitated and [his] heart felt like it was going to pop out and [his] chest hurt.” Mr. Garcia canceled the ambulance, but the police prevailed upon him to seek treatment because he continued to appear unwell, so a second ambulance was called. He was taken to a hospital and remained there as a patient for three days.

Mr. Garcia testified that he had not had heart or vein problems prior to the incident, just high blood pressure. A number of tests were run at the hospital, at least some of them on the day he arrived, according to Mr. Garcia. On direct examination, Mr. Garcia testified that they “opened me up here and ... unclogged the vein.” On cross-examination he expanded upon this matter by testifying that “they said I had a vein that was destroyed.” Defense counsel continued:

Q. Do you know how that happened?
A. With the struggle I had with the boy.
Q. Did the doctor tell you that?
A. What?
Q. Did the doctor tell you that was how it happened?
A. No, I know that it was from that because I never had that.

The prosecutor questioned Mr. Garcia on bills and statements that healthcare providers had sent to him. Five documents were admitted into evidence:

1. An ambulance bill for transport on January 28,2006, $536.00.
2. A bill from Family Health Centers of SW Florida for services (three line items) on January 29, 30, and 31, $390.00.
3. A bill from Florida Heart Associates for consultations and tests (eight line items) done on January 29 and 30, $1414.00.
4. An unitemized letter dated March 7, 2006, from Southwest Florida Regional Medical Center informing Mr. Garcia that his balance due for services on January 29-31 was $29,056.93.
5. An unitemized “Bill for Services” dated March 29, 2006, from Southwest Florida Regional Medical Center for $20,339.85.

Mr. Garcia testified that none of the bills were paid. Acknowledging that items 4 and 5 were for the same services, the State asked for restitution for items 1-3 and 5. Without making any findings, the court granted the State’s request, resulting in a restitution award against Bellot totaling $22,679.85; payment was made a condition of probation.

The issue on appeal is whether the evidence presented at the restitution hearing was sufficient to support the restitution award. We begin our analysis by noting that Florida law requires that

[i]n addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode,
unless it finds clear and compelling reasons not to order such restitution.

§ 775.089(l)(a), Fla. Stat. (2005). Additionally,

[w]hen an offense has resulted in bodily injury to a victim, a restitution order entered under subsection (1) shall require that the defendant:
1. Pay the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care....
2. Pay the cost of necessary physical and occupational therapy and rehabilitation.

§ 775.089(2)(a).

“The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence.” Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005); see also § 775.089(7). As to causation, the Florida Supreme Court has held that

to order restitution under the statute, the court must find that the loss or damage [(1)] is causally connected to the offense and [ (2) ] bears a significant relationship to the offense. Further, under the statute, the State must establish these factors by a preponderance of the evidence.

Glaubius v. State, 688 So.2d 913, 915 (Fla.1997) (citing § 775.089(7)). Analogizing to tort law, the court has equated the first element with “but-for” causation and the second, “significant relationship,” element with proximate cause, including its requirement of reasonable foreseeability. Schuette v. State, 822 So.2d 1275, 1281-82 (Fla.2002) (citing Arling v. State, 559 So.2d 1274, 1275 (Fla. 2d DCA 1990)). The court in Schuette made it clear that, notwithstanding the relatively open-ended wording of section 775.089(l)(a)(2) — “[djamage or loss related to the defendant’s criminal episode” — added in 1993, the specific two-element causation test recited in Glaubius still applies. Schuette, 822 So.2d at 1280-81.

We review restitution orders under an abuse of discretion standard. See Koile, 902 So.2d at 824. Restitution must be proved by substantial competent evidence. Id.

Our review of the testimony and documentary evidence leads us to conclude that the State adequately proved causation and restitution amount for only the ambulance charge, $536.00. Bellot committed a crime of violence against Mr. Garcia; as a direct result, Mr. Garcia became unwell and needed to be taken to the hospital. Other than this amount, however, the nature of the evidence makes it difficult to pinpoint the extent of Bellot’s liability. The testimonial evidence underlying Bel-lot’s liability for the ambulance charge would also support his liability for Mr. Garcia’s initial visit to the hospital (presumably the emergency room), his initial consultation with physicians, and his initial tests and treatment. However, which of the line items in Exhibits 2 and 3 correspond to these initial services is not clear, and Exhibit 5, the hospital bill, shows only a lump sum. In short, although the evidence presented by the State supports causation as to Bellot’s liability for Mr. Garcia’s initial medical care, the evidence does not clarify the corresponding amount of restitution.

Beyond these initial matters, we conclude that the State proved neither causation nor restitution amount. At best, the State showed “but for” causation: But for the fight instigated by Bellot, Mr. Garcia would not have seen doctors, had tests run, and had a three-day hospital stay. It may ultimately prove to be the case that the need for some or all of the post-initial tests and consultations and the three-day hospital stay were proximately caused by the altercation. For example, Mr. Garcia may have had a preexisting condition that was aggravated by the fight — perhaps he was an “eggshell” victim such that the altercation really did cause a vein to be “destroyed.” Cf., e.g., Hollie v. Radcliffe, 200 So.2d 616, 618 (Fla. 1st DCA 1967) (Florida rule is that when preexisting condition is aggravated by defendant’s negligence, defendant may be held responsible for the entire condition). However, it is also possible that the initial consultation and testing that directly resulted from the altercation led the physicians to a preexisting condition that they believed needed to be addressed but that was not itself exacerbated by the fight. It is likely that only expert testimony could distinguish between these possibilities. Additionally, the unitemized hospital statements (Exhibits 4 and 5), which are essentially dunning notices, do not disclose the extent to which the hospital charges relate to the initial treatment versus additional treatment for which Bellot may not be responsible.

Relatively few cases concerning the causal relationship between a crime and the victim’s medical expenses have been reported. The State cites to A. J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996), in support of its position that the order of restitution here was supported by the evidence. In AJ., the court concluded that the victim’s mother’s testimony regarding medical bills sufficiently established that the victim’s injuries were connected to the aggravated battery committed by the defendant. Id. at 938. However, the court did not recite the testimony in detail but merely summarized it by saying that “[t]he mother identified a packet of medical bills as being complete copies of the bills relating to her son’s injuries from the battery.” Id. at 936. In a sense, Mr. Garcia testified analogously here. Again, however, the extent of the testing and hospital stay and Mr. Garcia’s testimony about a “clogged” or “destroyed” vein raise questions about causation that need resolution and for which no competent, substantial evidence was presented at the hearing.

In conclusion, we affirm the award of restitution as to the ambulance charge of $536.00. We reverse the remainder of the $22,679.85 award and remand for another restitution hearing if the State elects to hold one. See, e.g., M.J.T. v. State, 927 So.2d 1077, 1078 (Fla. 2d DCA 2006). If the State does so and proves additional liability and restitution amount, the court shall make findings as to causation for each discrete item of restitution. See D.N. v. State, 529 So.2d 1217, 1224 (Fla. 1st DCA 1988) (citing State v. Williams, 520 So.2d 276 (Fla.1988)), disapproved of on other grounds by State v. G.C., 572 So.2d 1380 (Fla.1991).

Reversed and remanded, with instructions.

CASANUEVA and WALLACE, JJ., Concur.

      . See ch. 93-37, § 1, Laws of Fla.

      . Mr. Garcia’s reasoning — "I know that [the destroyed vein] was from [the fight] because I never had that” — does not resolve the issue. Did the altercation really cause a vein to be “clogged” or "destroyed”? Or did the altercation fortuitously enable a serious condition to be uncovered?


author: STRINGER, Judge.

text:
    Gene David NEWKIRK, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1304.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Gene David Newkirk appeals his convictions and sentences for burglary of a dwelling, grand theft of a firearm, carrying a concealed firearm, possession of a short-barreled shot gun, and possession of a firearm by a delinquent.. Newkirk pleaded no contest to these charges after the trial court denied his dispositive motion to suppress. Because the testimony at the suppression hearing established that Newkirk was illegally stopped, we reverse and remand for discharge.

The dispositive testimony at the suppression hearing came from Corporal David Walker. Walker testified that he was serving civil process in an unmarked police car in a residential neighborhood at 11:30 a.m. when he saw two boys running from a wooded area onto the street. Walker testified that one of the boys, who turned out to be Newkirk, was carrying something in his left hand. As Newkirk ran, Walker saw him place the item in his pants and cover it with his shirt. However, Walker admitted that he could not see what the item was that Newkirk was holding.

Walker testified that he decided to detain Newkirk and his companion and question them “about what was going on.” When cross-examined concerning what he was detaining them for, Walker responded, “Well, when I saw them, it was just to find out what was going on. If something had occurred at that time.” In order to detain the two boys, Walker turned on his emergency lights “to let the two individuals know that I was a deputy.” Walker testified that from the moment Walker activated the emergency lights, Newkirk and his companion were not free to leave.

The two boys stopped when they saw the lights, and Walker got out of his car and asked if they lived in the area. After the boys replied that they did, Walker asked whether the bulge under Newkirk’s shirt was a gun. Newkirk replied that it was and lifted his shirt. Walker then saw a sawed-off shot gun in Newkirk’s pants. Walker testified that he did not know what the item was until Newkirk showed him the gun.

The trial court found that Walker conducted a proper investigatory stop of the two boys, and it denied Newkirk’s motion to suppress based on that finding. The court specifically found that Walker had “a well-founded suspicion that there was criminal activity afoot,” and thus that the stop was proper. In this appeal, Newkirk contends that the trial court’s conclusion that Walker conducted a valid investigatory stop was erroneous. We agree.

In cases involving motions to suppress, this court reviews the trial court’s factual findings to determine whether they are supported by competent, substantial evidence. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Caso v. State, 524 So.2d 422, 424 (Fla.1988); Hicks v. State, 929 So.2d 13, 15 (Fla. 2d DCA 2006). All evidence and reasonable inferences therefrom must be construed in a manner most favorable to upholding the trial court’s ruling. Ornelas, 517 U.S. at 699, 116 S.Ct. 1657; Hicks, 929 So.2d at 15. However, the trial court’s application of the law to the facts is reviewed de novo. Ornelas, 517 U.S. at 699, 116 S.Ct. 1657; Hicks, 929 So.2d at 15.

When considering an allegation that a particular stop was illegal, the court must be mindful that “a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla.1993); see also § 901.151(2), Fla. Stat. (2005). To be valid, an investigatory stop requires “a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, 626 So.2d at 186. Moreover, the reasonable suspicion necessary to support an investigatory stop must exist at the inception of the stop. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); S.V.J. v. State, 891 So.2d 1221, 1223 (Fla. 2d DCA 2005).

Here, Walker candidly testified that he did not have a reasonable suspicion that Newkirk had committed, was committing, or was about to commit a crime before he stopped him. Instead, when specifically questioned on the issue, Walker testified that he just wanted to find out what was going on. Moreover, the facts as testified to by Walker do not show that Walker had a well-founded, articulable suspicion before detaining Newkirk that New-kirk was engaging in any criminal activity. Because Walker lacked any reasonable suspicion at the inception of the stop that Newkirk was engaged in criminal activity, the trial court should have granted New-kirk’s motion to suppress.

In the trial court, as well as in this appeal, the State argues that Walker did not initially effect an investigatory detention of Newkirk but instead simply engaged him in a consensual encounter. The problem with the State’s argument is twofold.

First, Florida law consistently holds that when an officer activates his emergency lights, that act initiates an investigatory stop, not a consensual encounter. See, e.g., Siplin v. State, 795 So.2d 1010, 1011 (Fla. 2d DCA 2001); Hrezo v. State, 780 So.2d 194, 195 (Fla. 2d DCA 2001); Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002); Brooks v. State, 745 So.2d 1113, 1113 (Fla. 1st DCA 1999). The reason such encounters are investigatory stops rather than consensual encounters is that the use of the emergency lights leads a reasonable citizen to believe that he or she is not free to leave. • Hrezo, 780 So.2d at 195; Young, 803 So.2d at 882; Brooks, 745 So.2d at 1113-14.

Here, it is undisputed that Walker activated his emergency lights to get the boys to recognize that he was a deputy and to cause them to stop and talk to him. A reasonable person would not believe that he or she was free to simply walk away from Walker’s patrol car under those circumstances. Therefore, the stop cannot be properly categorized as a consensual encounter.

Second, the State’s argument is contradicted by its own witness’s testimony. Walker testified that the initial contact was not a citizen encounter. Walker explicitly testified that from the moment he activated his emergency lights, Newkirk and his companion were not free to leave. Walker also specifically testified that he intended to detain the boys and question them as to what was going on. Thus, any argument that the initial encounter between Walker and Newkirk was simply a citizen encounter is expressly contradicted by the testimony presented by the State.

Because the encounter between Walker and Newkirk constituted an investigatory stop and because Walker did not have the reasonable suspicion necessary to support such a stop, the trial court should have granted Newkirk’s motion to suppress. Accordingly, we reverse Newkirk’s convictions and sentences and remand for discharge.

Reversed and remanded for discharge.

CASANUEVA, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . Both Newkirk and his companion were minors at the time of the incident. The State chose to charge Newkirk as an adult in this case.


text:
    John L. NORMAN, Appellant, v. Wyndel G. DARVILLE and Office of State Attorney, Appellees.
    No. 2D06-4022.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
    John L. Norman, pro se.
    Daniel E. Scott of Daniel E. Scott, P.A., Sarasota, for Appellees.
   STRINGER, Judge.

John L. Norman seeks review of the trial court’s order dismissing his case for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse because the trial court erred in determining that there was no record activity within ten months of service of the notice of lack of prosecution.

Rule 1.420(e) provides for dismissal for failure to prosecute when “it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months.” Norman filed a complaint against Wyndel Darville and the Office of the State Attorney (together “the Defendants”) on March 11, 2004. On February 24, 2006, the Defendants filed a notice of lack of prosecution, in which they alleged that there had been ten months of record inactivity. The last document filed by Norman was a change of address filed on May 31, 2005, which was less than ten months prior to the notice of lack of prosecution. Prior to that, Norman had filed a response to a defensive motion to dismiss on March 2, 2005.

Norman argues that the change of address he filed on May 31, 2005, constituted record activity sufficient to preclude dismissal of his action against the Defendants. In its order dismissing the complaint, the trial court determined that the change of address did not constitute record activity because it did not “advance! ] this action toward resolution.” While this used to be the standard for determining whether record activity was sufficient to preclude dismissal for failure to prosecute, the supreme court expressly receded from this standard in Wilson v. Salamon, 923 So.2d 363 (Fla.2005). Instead, the court adopted a bright-line test that involves a review of the face of the record for “any activity” in the preceding time period. Id. at 368.

Wilson has uniformly been interpreted to mean that any document appearing in the record within one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute. See Reddy v. Farkus, 933 So.2d 595, 598 (Fla. 5th DCA 2006) (notice of cancellation of hearing precludes dismissal); Walker v. McDonough, 929 So.2d 1127, 1128 (Fla. 4th DCA 2006) (notice of change of address and notice of absence from jurisdiction preclude dismissal); Hunnewell v. Palm Beach County, 925 So.2d 468, 470 (Fla. 4th DCA 2006) (entry of order denying motion to dismiss precludes dismissal); Richards v. Sheriff of Palm Beach County, 925 So.2d 1166, 1168 (Fla. 4th DCA 2006) (filing of motion to withdraw precludes dismissal); Nie v. Beaux Gardens Assoc., Ltd., 923 So.2d 1200 (Fla. 3d DCA 2006) (filing of notices for pretrial conference and notice for case management conference preclude dismissal).

Diamond Drywall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006). Thus, the trial court erred in determining that the change of address did not constitute record activity sufficient to preclude dismissal in this case.

Reversed.

DAVIS and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    WEISS CAPITAL MANAGEMENT, INC., Appellant, v. Wesley CROWDER, Richard Wandoff and Morgan Stanley DW, Inc., Appellees.
    No. 4D07-775.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., and Michael A. Fischler of Fischler & Friedman, P.A., Fort Lauder-dale, for appellant.
    Michael S. Taaffee, Jennifer B. Compton and Michael D. Bressan of Abel Band, Chartered, Sarasota, for appellee Wesley Crowder.
    Laura J. Starr of Weisman, Brodie, Starr & Margolies, P.A., Lake Worth, for appellees Richard Wandoff and Morgan Stanley DW, Inc.
   PER CURIAM.

This is an appeal of an order staying the civil suit below and compelling arbitration. We reverse.

Following Wesley Crowder’s resignation as an investment advisor with appellant, Weiss Capital Management, Inc. (WCM), WCM sued Crowder and his current employer, Morgan Stanley. WCM now appeals an order staying the trial court proceedings and requiring WCM to arbitrate a dispute with Crowder and Morgan Stanley. We have reviewed the record on appeal and conclude that the trial court erred in granting Crowder’s motion to compel arbitration. There was no express agreement between WCM and Crowder that required WCM to arbitrate its dispute with Crowder and we reject Crowder’s claim that WCM was required to arbitrate based on the National Association of Security Dealers (NASD) rules. We further reject Crowder’s argument that WCM should be required to arbitrate because WCM’s wholly-owned subsidiary, Weiss Capital Securities (WCS), was a NASD member and Crowder was an associated person of that firm. WCM and WCS are separate corporations and there was no evidence of any abuse of the corporate entity by either company which would make them alter egos. See United States v. Fid. Capital Corp., 920 F.2d 827 (11th Cir.1991); see also InterGen N.V. v. Gri- no, 344 F.3d 134,149 (1st Cir.2003) (“Common ownership and common management, without more, are insufficient to override corporate separateness and pave the way for alter ego liability.”); United States v. Jon-T Chems., Inc., 768 F.2d 686, 691 (5th Cir.1985) (“[O]ne-hundred percent ownership and identity of directors are, even together, an insufficient basis for applying an alter ego theory to pierce the corporate veil”).

Accordingly, we reverse the order on appeal and remand for further proceedings, including the trial court’s consideration, and ruling upon, WCM’s motion for temporary injunction to enforce a confidentiality agreement. This court, and others, has long held that “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.” Steve Owren, Inc. v. Connolly, 877 So.2d 918, 920 (Fla. 4th DCA 2004). We have considered the other arguments raised by appellees, but find no legal or factual support for the order compelling WCM to arbitrate its dispute with Crowder.

Reversed and remanded.

SHAHOOD, C.J., WARNER and STEVENSON, JJ., concur.

      . NASD Rule 10201 requires arbitration between certain categories of people and companies.


author: STEVENSON, J. WARNER, J.,

text:
    Ivan Howard SILVERSTEIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-828.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Ivan Howard Silverstein, Perry, pro se.
    No appearance required for appellee.
   STEVENSON, J.

This is an appeal of the trial court’s denial of a “motion to correct clerical mistake,” ostensibly filed under rule 3.800(a). We affirm.

The saga of this case began in 2004 when appellant pled no contest to the third degree felony charge of driving with a revoked driver’s license. Approximately two years later, in 2006, appellant filed a motion in the trial court to correct an illegal sentence. Appellant claimed that Florida Department of Highway Safety and Motor Vehicles (DHSMV) records would show that he had not been issued a driver’s license prior to October 2003 when he received the ticket for driving with a revoked or suspended license and the proper charge should have been driving without a license — a misdemeanor. To compound the problem, the ticket contained the driver’s license number of someone else — a person with an extremely bad driving record. The State responded to appellant’s motion by arguing that appellant pled no contest to the charge of driving while his license was revoked and served his sentence. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999) (holding that an illegal sentence can only be corrected while the defendant is serving his sentence). The order denying appellant’s motion agreed with the State that appellant was not entitled to any relief because he had already served his sentence. This court affirmed the trial court’s denial of appellant’s 3.800 motion by issuing a PCA in Silverstein v. State, 937 So.2d 137 (Fla. 4th DCA 2006).

In December 2006, appellant filed a “motion to correct clerical mistake,” which is the subject of the instant appeal. Appellant claimed that, in August 2005, he was cited for driving with a suspended license and that he was re-arrested and taken to jail. Appellant claims that this occurred because his October 2003 citation (ticket # 2590-COW) for driving with a revoked license contained the wrong driver’s license number and consequently included the bad driving record of that license holder. Appellant asserted that the inclusion of the incorrect driving record in connection with his plea to the October 2003 citation continues to plague his driving status, and led to his current arrest in August of 2005. Appellant asked the trial court to direct the clerk of court to remove the October 2003 ticket for driving with a revoked license from the court file, or at least to “amend” the records to show that the driving record attendant to his plea to that ticket was, in fact, the record of the other driver. On January 9, 2007, the trial court denied appellant’s motion saying that it lacked jurisdiction to grant the requested relief and informed appellant that he should discuss the matter with the DHSMV. On January 22, 2006, appellant filed a motion for rehearing. The trial judge denied the motion for rehearing on February 8, 2007, and this appeal followed on February 16, 2007.

Appellant raises two claims in this appeal. First, he alleges that his 2004 conviction for driving with a revoked license is “illegal” because he was an unlicensed driver at the time and therefore could not have had a revoked or suspended license. This was essentially the same issue raised in the initial appeal of the denial of appellant’s rule 3.800 motion, which this court affirmed because appellant had already served his sentence. Even if appellant’s challenge to his sentence is not barred by res judicata or collateral estoppel, this issue was not raised in the motion below and may not be considered by this court on appeal. As for appellant’s primary claim, we believe that the trial court did not err in denying the motion to correct clerical error. The court record involving appellant’s no contest plea to driving with a revoked license contained ticket # 2590-COW, and it showed the driving record which formed the basis for the plea. Although appellant now asserts that the driving record was the record of the other driver, appellant cites no authority which would require the trial judge to direct the clerk of court to essentially “reform” the court records utilized during the plea. We note, however, that appellant may have already obtained some of the relief which he sought in his motion to correct clerical mistake. While this appeal has been pending, appellant filed a “Notice of Corrected License,” which shows that the DHSMV recently issued a corrected driving record for appellant which does not contain the October 2003 citation.

The trial court’s denial of appellant’s motion to correct clerical mistake is affirmed.

SHAHOOD, C.J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur in the affirmance, but I would permit appellant to file a motion pursuant to Florid Rule of Criminal Procedure 3.850 to try to correct this issue. Appellant alleges that he pled to the felony charge of driving while his license was suspended in 2004, even though he did not have a driver’s license. This issue does not go to the illegality of the sentence but the legality of the conviction. If he was represented by counsel, and counsel advised him to plea to the charges, he may have had cause for relief for ineffective assistance of counsel pursuant to rule 3.850 or possibly to vacate his plea. As he filed his original rule 3.800 motion within two years of his 2004 sentence, I would affirm but remand to permit him to file a rule 3.850 motion within thirty days of this ruling. If he swears to the facts as alleged and they are true, namely that he could not have been convicted of driving on a suspended license because he did not have a license, then his habitual traffic offender status, and consequent prison sentence, would be a manifest injustice.

      . Although the issues raised in the motion filed in the trial court were not cognizable under rule 3.800, we have jurisdiction over the appeal as an order entered after final judgment in a criminal case. See Fla. R.App. P. 9.140.


text:
    Jeff & Betsy Durden REEVES, Appellant, v. David A. BARRETT, William R. Waters, Jr., Barrett Law Firm, P.A., and Pearson, Waters, and Wolk, P.A., Appellees.
    No. 1D06-4900.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.
    David H. Simmons and Jonathan A. Stimler of de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellant.
    David A. Barrett, pro se, Appellee
    Brian S. Duffy and Charles J.F. Schreiber, Jr. of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for William R. Waters, Jr. and Pearson, Waters and Wolk, P.A., Appellees.
   PER CURIAM.

The appellants challenge an order by which their legal malpractice action against the appellees was dismissed with prejudice, as being barred by the statute of limitations. The malpractice action was based on the appellees’ legal representation in connection with two lawsuits. A summary judgment was entered in the first of those lawsuits, and in determining that the malpractice action is barred by the statute of limitations in section 95.11(4)(a), Florida Statutes, the court assumed that the two-year time for filing the malpractice action commenced when the summary judgment was entered. However, the limitations time did not commence until the summary judgment became final by expiration of the time for appeal. See Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998); Gaines v. Russo, 723 So.2d 398 (Fla. 3d DCA 1999). Because the malpractice action was filed within two years from that date, it was timely and should not have been dismissed.

The appealed order is reversed, and the case is remanded.

BARFIELD, ALLEN and HAWKES, JJ., concur.


text:
    Roderick Kimberly CRYSTAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3260.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Nancy A. Daniels, Public Defender, and Laura Anstead, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee for Respondent.
   PER CURIAM.

The petition is granted and Roderick Kimberly Crystal is hereby afforded a belated appeal of judgment and sentence in Walton County case number 03-CF-807. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Upon assignment of a case number by this court to that appeal, this court will entertain a motion to consolidate that appeal with case number 1D06-4372. The trial court shall appoint counsel for petitioner if he qualifies for such an appointment.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


text:
    C.R., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2572.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.

      Nancy Daniels, Public Defender, and Brandy Alexander, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, Thomas D. Winokur and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted in part and C.R., a child, is hereby afforded a belated appeal from the order of disposition in Leon County Circuit Court case number 2007-C J-152. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court shall appoint counsel for petitioner for the appeal if he qualifies for such an appointment.

The petition, insofar as belated appeal is sought from Leon County Circuit Court case numbers 2005-CJ-505 and 2005-CJ-1496, is denied.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


text:
    Walter Douglas SMOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2146.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Nancy A. Daniels, Public Defender, Terry Carley, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Walter Douglas Smock is hereby afforded a belated appeal from case number 06-658 in the Circuit Court for Santa Rosa County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The trial court shall appoint counsel for the appeal if he qualifies for such an appointment.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


text:
    Willie LAWRENCE, Petitioner, v. State of FLORIDA, Respondent.
    No. 1D07-1292.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Nancy Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, Petitioner.

      Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Willie Lawrence is hereby granted belated appeal from the judgment and sentence of August 8, 2006, entered in Gadsden County case number 04-88-CF. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. PI 9.141(c)(5)(D). The trial court shall appoint counsel to represent petitioner in the appeal if he qualifies for such an appointment.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


text:
    Gladys CONDE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1235.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Gladys Conde, pro se, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Gladys Conde is hereby afforded a belated appeal from judgment and sentence in case number 05-715-CF in the Circuit Court for Clay County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a timely notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The trial court shall appoint counsel for petitioner if she qualifies for such an appointment.

BROWNING, C.J., ALLEN and THOMAS, JJ., CONCUR.


text:
    Natavius COVINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1095.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Natavius Covington, pro se, Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Natavius Covington is hereby granted belated appeal from judgment and sentence in case number 16-2005-CF-16443-A in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The trial court shall appoint counsel for petitioner if he qualifies for such an appointment.

PETITION GRANTED.

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


text:
    Clifford E. GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1005.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Heather Flanagan Ross, and Thomas Wi-nokur, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant seeks review of an order denying his motion to correct a sentencing error, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Appellant claims that points were improperly scored for prior convictions committed more than 10 years before the date of the primary offense for which he was being sentenced because he had not been convicted of any other offense for 10 consecutive years from his most recent date of release from confinement, supervision or other sanction to the date of the primary offense. The state correctly concedes that insufficient evidence was presented to establish that appellant did not have a conviction-free record for 10 consecutive years from his most recent date of release to the date of the primary offense for which he was being sentenced and that, because the plea agreement called for the lowest permissible sentence allowed by the scoresheet, a remand for a new sentencing hearing is required. We agree. See, e.g., Lyons v. State, 823 So.2d 250, 251 (Fla. 4th DCA 2002) (the burden is on the state to produce competent evidence to support the scoring of disputed convictions). Accordingly, we vacate appellant’s sentence, and remand with directions that the trial court conduct a new sentencing hearing.

REVERSED and REMANDED, with directions.

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


text:
    Dianne J. McLEAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3825.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, for Appellant.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant seeks review of a judgment adjudicating her guilty of grand theft auto and a sentence to two years in prison following revocation of her probation based on her admission that she had, in fact, violated that probation. She claims that, because she had previously been found to be incompetent to proceed, her right to due process of law was violated when her admission to a violation of probation was accepted and she was adjudicated guilty and sentenced without first holding a hearing, pursuant to Florida Rule of Criminal Procedure 3.212, to determine whether she was competent. The state properly concedes error. See Jackson v. State, 880 So.2d 1241 (Fla. 1st DCA 2004); Holland v. State, 634 So.2d 813 (Fla. 1st DCA 1994). Accordingly, we reverse the order holding that appellant had violated her probation, the judgment, and the sentence, and remand with directions that the trial court hold a hearing to determine whether appellant is competent before proceeding on the affidavit alleging a violation of probation.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and VAN NORTWICK, JJ„ concur.


author: BROWNING, C.J.

text:
    Calis Lee BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2036.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Judgment was entered against the Appellant for attempted possession of a firearm by a convicted felon, and he was sentenced to a three-year minimum term under section 775.087(2)(a)l, Florida Statutes (2005). He now challenges the sentence, and we grant relief.

Section 775.087(2)(a)l reads as follows: Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
a. Murder;
b. Sexual battery;
c. Robbery;
d. Burglary;
e. Arson;
f. Aggravated assault;
g. Aggravated battery;
h.Kidnapping;
I.Escape;
j. Aircraft piracy;
k. Aggravated child abuse;
l. Aggravated abuse of an elderly person ...;
m. Unlawful throwing ... of a ... bomb;
n. Carjacking;
o. Home-invasion robbery;
p. Aggravated stalking;
q. Trafficking in cannabis ...; or
r. Possession of a firearm by a felon and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense.

We agree with Appellant that attempted possession of a firearm by a convicted felon is not included in this statute because we believe the legislature did not intend to include the attempts of any of the crimes listed after the word “except” in the statute. There are three reasons for our belief.

First, as held in State v. Perez, 449 So.2d 818, 819 (Fla.1984), attempted aggravated assault is not included because it is a misdemeanor, and section 775.087(2)(a)l applies only to felonies. Second, burglary of a conveyance, whether occupied or unoccupied, is statutorily defined as taking place without a firearm. See § 810.02(3) & (4), Fla. Stat. (2005). Third, attempted possession of a firearm, at least under the fact pattern in the instant case, logically excludes the possibility that the crime took place with a firearm. We draw the conclusion that these crimes were grouped together in the statute after the word “except” because the legislature understood that their attempts need not be subject to a mandatory minimum term.

Accordingly, we REVERSE the sentence and REMAND for resentencing.

ALLEN and VAN NORTWICK, JJ„ concur.


text:
    Luis A. CALERO, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-1386.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2007.
    Luis A. Calero, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Luis A. Calero appeals an order denying his petition for writ of mandamus which challenged a prison disciplinary proceeding that resulted in a forfeiture of gain time. Because relief was denied on procedural grounds, we have appellate jurisdiction. Green v. Moore, 777 So.2d 425 (Fla. 1st DC A 2000). Finding no merit to Calero’s challenges to the circuit court’s denial of the mandamus petition, we affirm. However, Calero’s claim constituted a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes, and the trial court improperly imposed a lien on appellant’s inmate trust account to recoup court costs and fees. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). We therefore grant relief to appellant to the extent he challenges the orders imposing liens on his trust account and quash those orders. On remand, the circuit court shall direct reimbursement of any funds that have been withdrawn from appellant’s account to satisfy the improper lien orders.

BARFIELD, DAVIS, and LEWIS, JJ„ concur.