author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Ronald Eugene RICHARDSON, Appellee.
    No. 2D06-3590.
    District Court of Appeal of Florida, Second District.
    July 25, 2007.
    Rehearing Denied Aug. 28, 2007.

      Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
   ALTENBERND, Judge.

The State appeals an order granting Ronald Eugene Richardson’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The order set aside Mr. Richardson’s judgment and sentence for unlawful sexual activity with a minor and required a new trial based upon Mr. Richardson’s allegation that his trial counsel was ineffective for failing to request a Frye hearing to challenge the admissibility of certain statistical DNA evidence. Because there was unrebutted evidence establishing that counsel’s decision to permit the admissibility of the evidence was a strategic one, and because we conclude that counsel’s strategy was clearly reasonable under the circumstances, we reverse.

In 2001, Mr. Richardson was charged with unlawful sexual activity with a minor pursuant to section 794.05(1), Florida Statutes (2000), and contributing to the delinquency or dependency of a child pursuant to section 827.04(l)(a), Florida Statutes (2000), for events occurring in April 2000. The State’s evidence supporting the charges included DNA samples obtained from semen found on vaginal swabs from the victim. At Mr. Richardson’s trial, the State presented the testimony of a biostat-istician from the Florida Department of Law Enforcement (FDLE). The biostatis-tician testified that in April 2001, she used an FDLE database to perform a statistical analysis of the DNA sample recovered from the victim and a DNA sample obtained from Mr. Richardson. Based upon that analysis she opined that only 1 in 2.56 quintillion humans of Caucasian descent, randomly selected, would be predicted to have DNA that matched the sample taken from the victim at all thirteen of the locations analyzed. Mr. Richardson’s sample matched at all 13 locations.

Prior to trial, Mr. Richardson’s counsel was informed of the substance of the bio-statistician’s testimony. As a result, trial counsel contacted an expert in molecular genetics to review the FDLE records to assist in determining an appropriate defense to this evidence. At some point in this process, counsel was informed that the database used by the FDLE had structural flaws that called into question the statistics derived from the use of that particular database. Indeed, the FDLE discontinued use of this database shortly after the statistical analysis was performed in Mr. Richardson’s case. See, e.g., Bevil v. State, 875 So.2d 1265 (Fla. 1st DCA 2004) (reversing a conviction based upon the use of the same database for the statistical analysis of DNA evidence when the State’s witness admitted that errors in the database had caused the FDLE to terminate use of the database and the State presented no evidence to otherwise support the validity of the analysis performed).

At the evidentiary hearing on Mr. Richardson’s motion for postconviction relief, the molecular geneticist and trial counsel testified that they had conferred with one another concerning the DNA evidence and the State’s statistical analysis prior to trial in an effort to develop a defense to the evidence. According to trial counsel, he specifically asked the expert whether there would be a material change in the statistical evidence if the DNA evidence was analyzed with an appropriate and available database. The geneticist, although not an expert in statistical analysis, offered his opinion that any change in the statistical evidence would not materially alter the “astronomical” statistical probability that the DNA evidence taken from the victim matched Mr. Richardson’s DNA. Notably, Mr. Richardson offered no evidence at the postconviction hearing to dispute the conclusion of the geneticist or trial counsel in this regard.

Because the FDLE could easily perform an appropriate analysis with the current and unflawed databases available prior to Mr. Richardson’s trial, and because that analysis would not yield a significantly different probability, counsel reasoned that any attempt to challenge the statistical evidence prior to trial might only result in the State obtaining an appropriate analysis and thus strengthening its case against Mr. Richardson. As a result, counsel decided not to challenge the admissibility of the statistical evidence by objecting to the use of the flawed database. Instead, counsel performed a cross-examination of the State’s expert at trial that revealed to the jury the use of the flawed database despite the availability of other appropriate databases. He then argued in closing argument that the State’s use of a flawed database, among other things, provided a reasonable doubt as to Mr. Richardson’s guilt.

Counsel was not entirely unsuccessful in his defense of Mr. Richardson. The jury convicted Mr. Richardson of unlawful sexual activity with a minor but acquitted him of contributing to the delinquency or dependency of a minor. The trial court adjudicated Mr. Richardson guilty of unlawful sexual activity with a minor and sentenced him to ten years in prison.

In his motion for postconviction relief and at the evidentiary hearing on that motion, Mr. Richardson argued that counsel’s performance was deficient because counsel failed to request a Frye hearing regarding the statistical evidence and the use of the flawed database. Mr. Richardson posited that such a hearing would have resulted in the exclusion of any statistical analysis and his probable acquittal on the charge of unlawful sexual activity with a minor. We disagree.

A party seeking postconviction relief based on ineffective assistance of counsel must show (1) counsel’s specific acts or omissions were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Armstrong v. State, 862 So.2d 705, 711 (Fla.2003). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Rutherford v. State, 727 So.2d 216, 219 (Fla.1998) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). Both performance and prejudice present mixed questions of law and fact. Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Thus, the proper standard of review of an ineffective assistance of counsel claim “is two-pronged: (1) appellate courts must defer to trial courts’ findings on factual issues but (2) must review de novo ultimate conclusions on the performance and prejudice prongs.” Armstrong, 862 So.2d at 711.

We conclude that Mr. Richardson has failed to meet both prongs of Strickland. With respect to trial counsel’s performance, there is a strong presumption that trial counsel’s conduct “falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). An attorney is thus not ineffective for strategic decisions that, in hindsight, did not work to the defendant’s advantage. Mansfield v. State, 911 So.2d 1160, 1174 (Fla.2005). Rather, an unsuccessful strategic decision is not ineffective assistance of counsel if trial counsel considered and rejected alternative courses and that decision was reasonable under prevailing professional standards. Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). “[E]vi-dence that counsel’s conduct was part of a deliberate, tactical strategy that the defendant understood and approved almost always precludes the establishment of this prong.” Henry v. State, 948 So.2d 609, 617 (Fla.2006). Indeed, the Florida Supreme Court has declared that counsel’s strategic choices made after a thorough investigation of the law and facts are “virtually unchallengeable” in a motion for postconviction relief. See Downs v. State, 453 So.2d 1102, 1108 (Fla.1984).

Here, the unrebutted testimony at the postconviction hearing established that counsel had thoroughly investigated the DNA and statistical evidence the State intended to present at trial. Counsel consulted with an expert regarding the issues now raised by Mr. Richardson in his motion for postconviction relief. In light of the expert’s opinion that a proper statistical analysis would not materially differ from the flawed one the State intended to use, counsel chose to pursue a trial strategy of attacking the flawed analysis before the jury, rather than raising a pretrial challenge to the evidence that might have resulted in the State obtaining a better analysis. This strategy was reasonable under the circumstances.

Moreover, in order to establish prejudice to support his request for post-conviction relief, Mr. Richardson had to show that if counsel had taken the proposed action there is a reasonable probability that the outcome of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Given the testimony that appropriate databases were available to the State prior to trial that could have easily produced similar statistical evidence as that used to convict Mr. Richardson, Mr. Richardson has been unable to establish that a decision by counsel to seek to exclude the flawed evidence would have probably resulted in an acquittal or a conviction for a lesser crime, rather than the result anticipated by trial counsel — the strengthening of the evidence against Mr. Richardson. We therefore reverse the order granting Mr. Richardson’s motion for postconviction relief.

Reversed.

NORTHCUTT, C.J., and LaROSE, J., Concur.

      . Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923) (requiring new or novel scientific principle is admissible only if it has “gained general acceptance in the particular field in which it belongs”).

      . Mr. Richardson’s motion for postconviction relief raised four grounds, each related in some manner to the DNA evidence offered at trial. The postconviction court granted relief based only on the argument regarding the use of a flawed database to perform a statistical analysis. Neither party has presented argument in this appeal regarding the other grounds raised, and we therefore do not address them.

      . "To comprehend the meaning of these figures, it is necessary to observe that a quintillion is to a billion as a billion is to unity; in other words, there are as many billions in a quintillion as there are units in a billion.” Jules Verne, 20,000 Leagues Under the Sea 154 (Plain Label Books 2007) (1870).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Jon Allen DANCY, Appellee.
    No. 1D06-5352.
    District Court of Appeal of Florida, First District.
    July 26, 2007.
    Rehearing Denied Aug. 28, 2007.
    G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    Robert N. Heath, Jr., of McDonald, Fleming, Moorhead, Fergusen, Green, Smith, Blankenship & Heath, LLP, and Louis K. Rosenbloum of Louis K. Rosenbl-oum, P.A., Pensacola, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006), rev. granted Fla. Farm Bureau Cas. Ins. Co. v. Cox, 948 So.2d 758 (Fla.2007); Citizens Prop. Ins. Corp. v. Ueberschaer, 956 So.2d 483 (Fla. 1st DCA 2007), certification granted (May 25, 2007).

WOLF, PADOVANO, and ROBERTS, JJ., concur.


text:
    Juan P. QUINONES, Sr., Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 5D06-3895.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.
    Rehearing Denied Aug. 28, 2007.
    Juan P. Quinones, Sr., Kissimmee, pro se.
    No Appearance for Appellee.
   PER CURIAM.

In the underlying action, the Department of Highway Safety and Motor Vehicles (“DHSMV”) denied reinstatement of Quinones’ driving privilege until he passed all required exams (i.e. vision, written, and driving). The circuit court dismissed Qui-nones’ pro se petition for writ of certiorari for failing to submit a transcript of the administrative hearing for the court’s consideration of the merits. Quinones then filed in this court a pro se appeal of the dismissal order. We treat this pro se appeal as a petition for certiorari and deny the petition. Fla. R.App. P. 9.030(b)(2)(B). This court’s standard of review is limited to determining whether the circuit court afforded procedural due process and applied the correct law. We determine it did.

PETITION DENIED.

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


text:
    James Edwin SWARTZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1919.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2007.
    Rehearing Denied Sept. 6, 2007.
    James E. Thomas, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Thurman, 791 So.2d 1228 (Fla. 5th DCA 2001).

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Peter J. KLAUER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1937.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 6, 2007.

      Peter J. Klauer, pro se, Petitioner.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Dewey McCLAIN, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-2713.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2007.
    Dewey McClain, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Elliott S. CAMPBELL, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D07-3508.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2007.
    Elliott S. Campbell, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Kenneth S. ROTE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3311.
    District Court of Appeal of Florida, First District.
    Aug. 1, 2007.

      Kenneth S. Rote, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    David JEROME, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1455.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    David Jerome, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Alexander SLATER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1517.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Aug. 28, 2007.
    Alexander Slater, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Gross v. State, 820 So.2d 1043 (Fla. 4th DCA 2002).


text:
    In re GUARDIANSHIP OF Betty Pat GRAHAM, Sheridan Weissenborn, Petitioner, v. Luke Graham, as Guardian of the Ward, Respondent.
    No. 4D07-739.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.

      Sheridan K. Weissenborn of Papy, Weis-senborn, Yraspir, Paterno <& Puga, P.A., Coral Gables, for petitioner.
    No response required for respondent.
   On Motion for Rehearing

PER CURIAM.

This court previously denied the somewhat misleading petition for writ of certio-rari in this case by order. While the petition attempted to seek review of the lower court’s denial of a motion to discharge an emergency, temporary guardian and to dismiss the guardianship proceedings, the petition actually sought review of the circuit court’s denial of an ore terms request to substitute counsel. The lower court did not reach the merits of the above motions because it found that counsel had no standing to bring motions on behalf of the ward.

The attorney who attempted to appear on behalf of the ward has filed for rehearing, arguing that the guardianship proceedings pending below violate the incapacitated person’s right to due process of law. While this petition was filed nominally on behalf of the ward, Betty Pat Graham, the attorney who filed this petition was not permitted to represent Ms. Graham below and has not been substituted as counsel. Betty had been appointed counsel by the court following appointment of an emergency, temporary guardian. It is apparent from the proceedings in this case that the attorney who filed this petition is working on behalf of Larry Graham, one of Betty’s sons.

The instant motion for rehearing cites to Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and argues that the lower court’s exercise of jurisdiction over Betty’s person does not comport with traditional notions of “fair play and substantial justice.” We deny rehearing, but write to address the argument that Florida’s continued exercise of jurisdiction in this matter violates due process.

In July 2006, while Larry and Betty were both living in Florida, Betty executed an Advanced Health Care Directive that designated Larry as her surrogate for health care decisions and purported to grant Larry broad authority over a wide range of matters relating to her health care and her property. See § 744,3115, Fla. Stat. (2006). The Directive named Larry as guardian of Betty’s person and property if it became necessary for any reason and gave. Larry authority to seek a court decree appointing him as guardian. The Directive specifically provided that the circuit court for Palm Beach County was a court of competent jurisdiction to appoint a guardian.

On October 6, 2006, Betty’s other son, Luke, executed a petition for involuntary examination of his mother under section 394.463, Florida Statutes. An examination was ordered, and the committee members unanimously concluded that Betty was incapacitated and that a guardianship was required. In November 2006, a protective services investigator with the Department of Children and Families filed a petition to determine Betty’s competency and an emergency petition for appointment of a temporary guardian. The petition explained that Betty was mentally ill and currently at a psychiatric facility in the Fair Oaks Pavilion on the campus of Del-ray Medical Center in Florida.

DCF’s emergency petition for appointment of a temporary guardian further stated that Betty had an estimated $500,000 in assets, including a home in Alabama and $350,000 that was, until recently, in a Merrill Lynch account. The Merrill Lynch account had been closed, and the investigator suspected Larry had the money moved to another account. According to the petition, the two sons, Luke and Larry, appeared to be attempting to hide Betty from one another in order to get her assets in their names. The investigator explained that it had been very difficult to determine which of the two brothers had his mother’s best interests at heart. Each accused the other of mental instability, lying, and greedy motives.

After speaking with both men, as well as their father, the investigator concluded that Luke was the son that wanted his mother cared for as best as possible. The investigator noted that Larry had been caught in several lies to members of DCF staff and their legal department. Larry had recently sought and obtained a power of attorney and health care surrogacy over Betty and tried to arrange for her to be moved to a locked-down Alzheimer’s ward in several different locations. Each time, Larry allegedly tried to admit Betty under a pseudonym. The petition explained that Betty does not suffer from Alzheimer’s and that Larry’s purpose in trying to admit her to these facilities was to prevent Luke from seeing her or discovering her whereabouts.

Because the $350,000 in the Merrill Lynch account had apparently disappeared, the investigator argued that a temporary guardian was desperately needed, as well as an order freezing Betty’s assets and making them unavailable to Larry, until his motives could be established. On November 8 and 9, 2006, while Betty was still residing in Florida, the court entered an order appointing an emergency, temporary guardian with plenary authority over Betty’s person and property.

After the trial court appointed the guardian, Larry surreptitiously took Betty from the residence where she had been placed by the guardian and moved her to California without giving notice to the court or any of the parties. The trial court held Larry in indirect criminal contempt for removing Betty from Florida and otherwise defying the guardianship orders. Larry has refused to reveal his exact whereabouts as well as the whereabouts of his mother.

At the time of the February 8, 2007 hearing from which this petition emanates, Larry had still not revealed Betty’s location despite court orders to do so. In an attempt to get Larry’s attorneys to reveal Betty’s location as required by a prior court order, the judge left the courtroom and then returned a few minutes later. Upon his return, however, the attorneys still refused to divulge her location in direct violation of the court’s authority.

In fact, the attorney that filed this petition refused to reveal Betty’s location until directly questioned and pressed by the court. Even then, the attorney revealed only the city in California where Betty was allegedly located. The attorney then argued that the court was required to dismiss the guardianship proceedings because the ward could not be located after diligent search. See Fla. Prob. R. 5.680(a). When the court asked, “But we have the ability to know where the ward is; don’t we?” The attorney responded, “But she’s not— she’s not — they didn’t until I divulged that.” That same attorney has continued to argue in this proceeding that the guardianship proceedings must be dismissed because Betty is no longer in Florida.

The attorney attempted to appear at the hearing on Betty’s behalf even though Betty had been appointed counsel by the court. The court denied the attorney’s ore terms motion to appear on Betty’s behalf at the hearing. The attorney had not filed a motion to be substituted as counsel. The court agreed to schedule a hearing on a written motion to substitute, but it does not appear from the record that the attorney has ever been permitted to appear on Betty’s behalf in this case. The attorney that was appointed by the court to represent Betty, as well as the guardian, objected to all the arguments made by the attorney that has initiated these proceedings.

In as far as the instant petition was seeking to quash the trial court’s refusal to allow the attorney to be substituted as counsel, the court’s decision did not depart from the essential requirements of law or result in a miscarriage of justice. See In re Guardianship of King, 862 So.2d 869 (Fla. 2d DCA 2003); In re Guardianship of Bockmuller, 602 So.2d 608 (Fla. 2d DCA 1992) (holding that, because the ward’s right to contract had been removed by order determining her incapacity and appointing plenary guardians, she had no right to contract for counsel to represent her in any proceedings).

Despite not being legally authorized to represent Betty at this point, the attorney argued, through the petition and in this motion for rehearing, that Betty’s right to due process is being violated by the continued Florida guardianship proceedings. The petition argues that Florida has lost jurisdiction over Betty because she is now in California and that the Florida guardianship proceedings must be terminated. See § 744.202, Fla. Stat. (2006) (describing proper venue for guardianship proceedings). The record in this case in no way supports petitioner’s arguments.

On January 29, 2007, after Larry removed Betty from Florida to California, Betty allegedly re-executed the Advance Health Care Directive. The “new” Directive had certain hand-written changes. For example, Larry’s Florida address which was written on the previous Directive was scratched out and “Los Angeles, CA” (without a street address) was handwritten in. On the final page of the Directive, the statement that Palm Beach County circuit court was a court of competent jurisdiction was scratched out and “Los Angeles, CA” handwritten in its place.

The petition in this case also attached a “Florida” durable power of attorney form that was allegedly executed by Betty on January 29, 2007. The “Florida” form has all references to “Florida” scratched out and “California” handwritten in its place. Also scratched out is the provision that makes the power of attorney revocable. Handwritten in is: “this power of attorney is irrevocable.”

On February 19, 2007, after the hearing at issue in this petition, Betty was examined by a psychiatrist in California who allegedly determined that she was competent. It is obvious that this psychiatrist was privately-retained by Larry in reaction to the Florida court continuing the guardianship at the February 8, 2007 hearing. The psychiatrist’s report notes that, despite the psychiatrist’s urging that the examination should be with Betty alone, Larry was present during the examination. The report also noted that Betty might be subject to undue influence. The petition argued that these questionable documents established “conclusively ” that Betty had regained competence and that the guardianship must be terminated.

In the shadow of all the above, the petitioner has filed this motion for rehearing which purports to remind this court of the requirements of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), that the exercise of in personam jurisdiction should comport with traditional notions of “fair play and substantial justice.” The parties seeking relief in this court, however, have not abided by any conceivable notion of “fair play” or “substantial justice.” We reject the attorney’s improper attempts to circumvent the circuit court’s authority by raising jurisdictional issues in this court where the attorney was not permitted to appear below.

Contrary to the motion for rehearing’s argument that exercise of jurisdiction in this case is “absolutely contrary to the concept of due process” as set forth in Pennoyer and other cases, the circuit court in this case entered the guardianship order when Betty was residing in Florida and when Florida clearly had jurisdiction over Betty’s person. The Directive, which Larry contends establishes his near complete control over Betty’s life, specifically provides that the circuit court for Palm Beach County was a court of competent jurisdiction to enter guardianship orders. The circuit court acquired jurisdiction over Betty when the guardianship proceedings were initiated by DCF while Betty was hospitalized in Florida and when the emergency temporary guardianship was established.

Larry’s improper act of subsequently removing Betty from Florida to a “secret location” cannot divest the Florida court of jurisdiction. The legitimacy of the “new” Directive and power of attorney form were not determined by the lower court, and we do not endeavor to do so here. We simply conclude that the trial court did not depart from the essential requirements of law in refusing to hear the attorney’s arguments or terminate the guardianship. Florida Statutes section 744.2025(1) requires a guardian to obtain prior court approval before removing the ward from the state. Larry, who continues to assert that he is the proper guardian based on the Health Care Directive, did not obtain prior court approval and did not notify anyone that he had taken Betty to California. If a guardian cannot remove the ward from the state without prior court approval, surely Larry cannot do so under these circumstances. Termination of the guardianship on the ground that Betty was no longer located in Florida would permit Larry to benefit from his misdeed of illegally removing Betty from the jurisdiction. The lower court in this case has jurisdiction to continue with the guardianship proceedings.

The petition’s argument that the court-appointed guardian was required to move for discharge at the hearing because it did not know Betty’s location is patently frivolous. If a person could secrete the incapacitated ward away to another state and thereby cause termination of the guardianship, the entire purpose of having a guardianship procedure would be nullified. The equities in this case strongly call for the circuit court’s continued exercise of jurisdiction. See also Nelson v. Beverly Beach Props., 47 So.2d 310, 316 (Fla.1950) (stating that “when equity takes hold it should retain jurisdiction until all matters between the parties have been disposed of’).

The statutes provide for termination of a guardianship upon a change in domicile of the ward where another state has appointed a guardian, but the statute requires that the change in domicile be accomplished by the legal guardian with prior approval of the court. § 744.524, Fla. Stat. (2006) (providing for termination of guardianship when the domicile of a ward has changed as provided in section 744.2025). The petition does not suggest that California has appointed a guardian for Betty and clearly the circuit court has not approved Betty’s change in domicile. See also Fla. Prob. R. 5.670 (setting forth the procedure for terminating a guardianship on change of domicile of a ward and requiring the Florida guardian to file a petition for discharge); cf. In re Guardianship of Gechtman, 719 So.2d 960 (Fla. 4th DCA 1998). Even if the petition were properly brought by an attorney of record, it fails to establish any basis for termination of the guardianship.

The circuit court judge provided in his rulings that Larry could seek to be declared the guardian and try to establish the legitimacy of the Directive if he complied with the court’s orders and brought Betty back to Florida. The court provided Larry the legal means through which to assert his purported rights or those he claims over Betty. Larry has apparently chosen to ignore these legitimate avenues for relief.

Because the attorney filing this petition has no standing to represent Betty, this petition should probably have been dismissed. Because the petition sought in part to review the lower court’s denial of the ore tenus motion to substitute counsel, however, we asserted our discretionary jurisdiction and denied the petition.

We have not belabored the jurisdictional posture of the petition in this case as to the other issues. An order denying the motion to dismiss the guardianship proceedings would be a non-final order for which an adequate remedy was available on appeal, so certiorari jurisdiction would not lie. In re Guardianship of Anderson, 568 So.2d 958 (Fla. 4th DCA 1990). Because the order might concern venue or personal jurisdiction, however, the order could be reviewable under Florida Rule of Appellate Procedure 9.130. Because the petition alleged that the trial court lacked jurisdiction, a petition for writ of prohibition may have been an appropriate remedy. Lee v. Campion, 823 So.2d 159 (Fla. 4th DCA 2002). The claim that the court erred in refusing to permit the attorney to appear for Betty may have been reviewable via certiorari. Atl. Commercial Dev. Corp. v. Nortek, Inc., 403 So.2d 624 (Fla. 5th DCA 1981) (granting a writ of certiora-ri and quashing a trial court order which denied substitution of counsel).

We exercised our discretion and chose to deny the petition so the properly initiated guardianship proceedings in this matter could continue. None of the petition’s arguments have merit. The motion for rehearing is denied.

WARNER, KLEIN and STEVENSON, JJ., concur.

      . We express no opinion as to the validity of the healthcare directive in this case, which continues to be disputed.

      . Larry was held in indirect criminal contempt for violating the court’s order imposing an emergency temporary guardianship when he removed his mother from the "geographical” jurisdiction of the court. Larry did not obtain permission from the guardian or the court before secretly moving Betty to California and keeping her location secret.


author: WARNER, J. PER CURIAM.

text:
    STATE of Florida, Appellant, v. Terrell WILLIAMS, Appellee.
    No. 4D06-1902.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Opinion on Grant of Rehearing Sept. 19, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals a downward departure sentence which the trial court imposed for appellee’s plea to felony driving while license revoked as a habitual offender. It claims that the grounds alleged were not lawful reasons for departure nor were they proved by a preponderance of the evidence. We agree and reverse.

In a plea hearing on appellee’s charges, appellee argued for a downward departure below his lowest permissible guidelines sentence of 21.45 months. Appellee’s counsel pointed to appellee’s youth (twenty-two), his “confidential diagnosis” of a serious disease, and “extreme duress” based upon the fact that the charges arose after an officer stopped Williams in his car as he was leaving the hospital after the birth of his first child. No evidence was presented on these grounds for departure. The trial court agreed to downward depart based upon appellee’s youth and diagnosis and sentenced appellee to 180 days in jail but did not enter a written order specifying the grounds for downward departure.

We articulated the two-step process for departure sentences and their review in Staffney v. State, 826 So.2d 509, 511 (Fla. 4th DCA 2002):

A trial court’s decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground. Legal grounds are set forth in case law and statute and the facts supporting the ground must be proved by a preponderance of the evidence. This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Competent substantial evidence is tantamount to legally sufficient evidence, and the appellate court will assess the record evidence for its sufficiency only, not its weight.
Second, where the requirements set out above are met, the court must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant. In making this determination, the court must weigh the totality of the circumstances in the case, including aggravating and mitigating facts. This decision is within the sound discretion of the court and will be sustained on review absent an abuse of discretion.

See also Banks v. State, 732 So.2d 1065 (Fla.1999). The trial court erred in determining the first step of the procedure.

The court erred in granting a downward departure, because no evidence was presented to support a departure. The facts supporting a ground for departure must be proved by a preponderance of the evidence. Staffney, 826 So.2d at 511. Where a defendant presents no evidence, he fails to meet the burden of proving a departure factor by a preponderance of the evidence. State v. Silver, 723 So.2d 381, 383 (Fla. 4th DCA 1998). In this case, the court only heard the arguments of counsel for both parties — no testimony or evidence was presented. Counsel’s un-sworn statements presented at a sentencing hearing cannot support a downward departure sentence. State v. Champion, 898 So.2d 1111 (Fla. 2d DCA 2005). “[Rjepresentations of an attorney alone are insufficient to form a valid basis for departure.” State v. Bernard, 744 So.2d 1134, 1135 (Fla. 2d DCA 1999).

As to the issue of appellant’s age, section 921.0026(2)(k), Florida Statutes, permits a downward departure if “[a]t the time of the offense the defendant was too young to appreciate the consequences of the offense.” The trial court knew that appellee was age twenty-two, which would hardly place him in the category of being too young to appreciate the consequences of driving with a revoked license. However, even assuming that age twenty-two could ever qualify for a departure under this section, a defendant’s youthful age alone will not justify a departure sentence. State v. Salgado, 948 So.2d 12 (Fla. 3d DCA 2006). “There must also be evidence that the defendant is emotionally immature or lacks ordinary intelligence.” Id. at 15. “[T]he statute specifically requires that the defendant must also be unable to appreciate the consequences of the offense in order to be eligible for a downward departure.” Id. at 16 (emphasis in original). In the instant case, no evidence was presented that Williams was too young to appreciate the consequences of his offense.

The trial court also departed based upon his “confidential diagnosis.” An “illness” is not listed as a statutory mitigating circumstance. See § 921.0026, Fla. Stat. In addition, not only was there no evidence of his illness other than his lawyer’s statement, there was no evidence as to how his condition impacted any other ground for mitigation. For example, there was no evidence that Williams required specialized treatment for his illness. See § 921.0026(2)(d), Fla. Stat. (statutory ground for downward departure exists where “[t]he defendant requires specialized treatment for ... a physical disability, and the defendant is amenable to treatment.”).

Finding no lawful ground for departure which was proved by competent substantial evidence, we reverse and remand for the imposition of a guidelines sentence.

POLEN and HAZOURI, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

We grant Williams’s motion for rehearing and modify our directions on remand to clarify that Williams may also file a motion to -withdraw his plea. See State v. Skidmore, 755 So.2d 647, 648-49 (Fla. 4th DCA 1999).

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Robert L. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2522.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Robert L. Phillips, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant filed, without reference to Florida Rule of Criminal Procedure 3.800(c), a motion simply titled “Motion to Define or Clarify.” The trial court treated the motion as a rule 3.800(c) motion and denied it on the merits. We dismiss the appeal as a non-appealable order. See State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004); Grosse v. State, 511 So.2d 688 (Fla. 4th DCA 1987).

KLEIN, GROSS and HAZOURI, JJ., concur.


text:
    Ralph GROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2321.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Ralph Gross, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Curtis v. State, 915 So.2d 733 (Fla. 2d DCA 2005).

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


text:
    Liem Thanh LY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1535.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Liem Thanh Ly, West Palm Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

STONE, TAYLOR and HAZOURI, JJ., concur.


text:
    Rudy ABRAHAM, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D07-298.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.

      Rudy Abraham, Boca Raton, pro se.
    Louis A. Guiterrez, Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

STONE, POLEN and GROSS, JJ., concur.


text:
    Pascual Juan MARTINEZ, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-187.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    R. Patrick Beatty, Stuart, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for respondent.
   On Motion fob Rehearing

PER CURIAM.

Pascual Martinez petitioned this court for a writ of certiorari seeking review of an order striking as untimely his motion to mitigate sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). This petition was previously denied by order. We vacate the order denying the petition, grant the motion for rehearing, and issue this opinion.

Within the sixty-day time limit, counsel filed a rule 3.800(c) motion to mitigate petitioner’s sentence seeking a youthful offender sentence to avoid a mandatory ten-year term under the 10-20-Life statute. At the same time, counsel asked the court to grant an extension of time for a hearing on the motion to mitigate. The State did not object to granting the extension. Because the 3.800(c) motion was not delivered to the judge until after the time had expired, the motion was struck as untimely, and the judge did not rule on the request for an extension of time.

We vacate the trial court’s order and remand for the court to rule on petitioner’s request for an extension of time. See Abreu v. State, 660 So.2d 703 (Fla.1995) (holding that, pursuant to Florida Rule of Criminal Procedure 3.050, the court may extend the sixty-day time limit for a motion to mitigate sentence as long as the motion to mitigate is resolved within a reasonable time).

FARMER, STEVENSON and TAYLOR, JJ., concur.


text:
    Anne Cienese ALOUIDOR, Appellant, v. Randall CASE, Appellee.
    No. 4D06-4936.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.

      Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale and Timothy W. Ross of Timothy W. Ross & Associates, Hollywood, for appellant.
    Todd R. Schwartz of Ginsberg & Schwartz, Pembroke Pines, Richard B. Burke, Miami, and Law Offices of Scott Mersky, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

Pursuant to the Plaintiff/Appellee’s Confession of Error, the trial court’s corrected order on the defendant/appellant’s motion for new trial due to juror misconduct is reversed and the case remanded for a new trial on all issues.

Reversed and Remanded.

SHAHOOD, C.J., FARMER and MAY, JJ., concur.


text:
    Linda MIRALLA, Appellant, v. Wilfredo RODRIGUEZ, Appellee.
    No. 4D06-4077.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Linda Miralla, Fort Charlotte, Pro Se.
    Stephen H. Butter of Stephen H. Butter, P.A., Aventura, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

GUNTHER and HAZOURI, J.J., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Tracy TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3240.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Carey Haughwout, Public Defender, Patrick B. Burke and Joseph Maryuma, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Defendant appeals an order revoking her probation. She argues that the trial court erred by revoking her probation for failure to report for the months of February through June 20.05, claiming that the affidavit only alleged failure to report for February and March. The trial court revoked probation based on an amended affidavit, which alleged a failure to report for February through May 2005. Although a violation for failure to report for June was not included in the amended affidavit and thus must be stricken from the order, see Costanz v. State, 740 So.2d 71, 72 (Fla. 4th DCA 1999), we affirm as it is apparent the trial court would have revoked probation and imposed the same sentence based on the remaining violations. Thompson v. State, 710 So.2d 80 (Fla. 4th DCA 1998). We remand for entry of a written order revoking probation. Watts v. State, 688 So.2d 1018 (Fla. 4th DCA 1997).

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


author: WARNER, J.

text:
    Alexander ALPHONSO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2329.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his sentence imposed upon a violation of probation, claiming that the trial court erred in denying his motion to suppress evidence obtained after an officer initiated a traffic stop. He claims that the stop was unauthorized. We disagree and affirm.

Appellant, Alexander Alphonso, was on probation after serving a youthful offender sentence imposed for the commission of several felonies. The state filed an affidavit of violation alleging sixteen different violations. The focus of this appeal concerns whether the trial court should have suppressed evidence concerning the commission of new crimes which stemmed from his stop and arrest on January 2, 2006. Those crimes included, inter alia, possession of marijuana and driving without a valid driver’s license. He concedes that he violated probation independent of the new crimes for which he was arrested, but maintains that the new crimes should not have been considered as part of the violation because the arresting officer had no probable cause to stop him. Alphonso contends that consideration of the new “substantive” crimes prevented the court from resentencing him as a youthful offender which resulted in a much greater sentence than he would have otherwise received.

An officer stopped Alphonso after he failed to obey a roadblock that the officer had instituted to assist another motorist. When Alphonso drove around the roadblock, the officer attempted to stop him, but Alphonso refused to stop even after the officer initiated his lights, honked his horn, and ordered him to stop over the P.A. system. Alphonso ultimately drove several blocks and made a couple of turns before stopping.

Alphonso argues that the officer had no authority to stop him. We disagree, as under Florida law, “[i]t is unlawful ... for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer....” § 316.072(3), Fla. Stat. (2006). The officer had set the roadblock and directed traffic to stop, which Alphonso failed to do. Although he contends that the evidence was not clear that he disobeyed a roadblock, the issue is one of fact for the trial court, which we afford the presumption of correctness. See Rivera v. State, 859 So.2d 495, 509 (Fla.2003). In this case, we conclude that the trial court’s view of the evidence is fully supported by the record. Therefore, we affirm the trial court’s denial of the motion to suppress.

Affirmed.

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


author: DAVIS, Judge.

text:
    Gerard DABASSE and Hudson International Trading, Inc., Appellants, v. Mercedes REYES, Appellee.
    No. 2D06-1409.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2007.

      Mark Thomas Broderick and James J. Zonas, Naples, for Appellants.
    Neil Morales of The Morales Law Firm, P.A., Naples, for Appellee.
   DAVIS, Judge.

Hudson International Trading, Inc. (“Hudson”), and Gerard Dabasse, the president of Hudson, appeal the final judgment entered against them following a jury verdict. While we find no merit in the first issue on appeal, we conclude that the trial court erred in entering separate damage awards against Dabasse and Hudson and in holding them jointly and severally liable for the total. Accordingly, we affirm the judgment as to liability but reverse as to damages.

The plaintiff below, Mercedes Reyes, contracted with Hudson to perform repairs on her home. When she became disenchanted with Hudson’s work, she filed a nine-count complaint against both Hudson and Dabasse for damages she claimed she suffered. Based on her discovery that Da-basse was not a licensed contractor, Reyes alleged counts of actual fraud, negligent misrepresentation, negligence, and constructive fraud against both defendants. Dabasse and Hudson responded by filing two affirmative defenses, one of which was that Reyes had demonstrated unclean hands by fraudulently misrepresenting herself as a general contractor on the application for a building permit from Collier County.

The case proceeded to jury trial on the counts of fraudulent misrepresentation and negligent misrepresentation against Da-basse and Hudson and on the affirmative defenses of unclean hands and illegality of contract. Finding Dabasse individually liable on the theory of fraudulent misrepresentation and finding Hudson vicariously liable for the same misconduct, the jury awarded damages of $80,000 against each of the named defendants. The trial court entered final judgment finding the two defendants jointly and severally liable for $160,000 plus costs. It is that final judgment that Dabasse and Hudson challenge.

They argue first that the trial court erred in denying their motion for a directed verdict based on Reyes’ unclean hands. They contend that Reyes’ testimony in which she admitted that she had executed the application form misrepresenting herself as a general contractor entitled them to a directed verdict. “A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party.” Sims v. Cristinzio, 898 So.2d 1004, 1005 (Fla. 2d DCA 2005). While it is true that Reyes testified that Dabasse took her to the permitting office and that she signed the papers at his instruction, she also said that he had told her that she had to sign the papers so he could get the permit. She complained that due to her limited ability to speak and read English, she did not always understand what she was signing. Because this testimony created a factual question as to whether Reyes fraudulently misrepresented herself as a general contractor, there was clearly a view of the evidence that could support a verdict in her favor. Accordingly, the trial court correctly denied the motion for a directed verdict and allowed this issue to go to the jury.

However, the second issue, whether the trial court erred in entering a final judgment holding Dabasse and Hudson jointly and severally liable for $160,000, is more problematic. Reyes presented the testimony of an expert witness who opined that the cost of the repairs would be approximately $80,000 as of the date of trial. While the jury apparently accepted this testimony, the jury’s verdict awarded $80,000 in damages against Dabasse and $80,000 in damages against Hudson, for a total damages award of $160,000. In entering judgment on the verdict, the trial court made that liability joint and several. This was error.

We note first that although the verdict form does not specifically state that Hudson was found hable on a theory of vicarious liability, it is clear that the jury’s verdict against Hudson was based on vicarious liability since the jury was given a vicarious liability instruction and there was no objection made to that instruction. Vicarious liability, however, is derivative of the liability of the active tortfeasor; it is not based on a separate breach of duty to the plaintiff by the vicariously liable party.

Thus, the vicariously liable party is liable for the entire share of the fault assigned to the active tortfeasor. The vicariously liable party has not breached any duty to the plaintiff; its liability is based solely on the legal imputation of responsibility for another party’s tor-tious acts. The vicariously liable party is liable only for the amount of liability apportioned to the tortfeasor.

Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 467-68 (Fla.2005) (citations omitted). In the instant case, because Hudson was vicariously liable for the acts of Dabasse, the active tortfeasor, Hudson can only be liable for the amount of liability that was apportioned to Dabasse, or $80,000. Consequently, it was error to find Hudson vicariously liable for an additional $80,000 in damages.

Although Reyes attempts to save the verdict by suggesting that pursuant to section 768.0425, Florida Statutes (2005), the trial court has the authority to award up to three times the actual compensatory damages proven, that statutory section was never mentioned in the pleadings or at trial, nor was reference made to such an award in the final judgment. That section, therefore, affords Reyes no relief, and we must reverse the $80,000 jury verdict entered against Hudson.

Having concluded that the trial court erred in doubling the award of damages, we reverse the award and instruct that upon remand, the amended judgment reflect joint and several liability against Da-basse and Hudson for $80,000 plus costs and interest.

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA and VILLANTI, JJ„ Concur.

      . Breach of contract was not alleged and would, we suspect, have been unavailing pursuant to section 489.128, Florida Statutes (2003), which makes contracts with unlicensed contractors unenforceable.

      . Because it was not argued by the parties, we do not address either the merit or the validity of unclean hands as an affirmative defense in this case.


text:
    Shannon D. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1816.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    Shannon Robinson, Daytona Beach, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

We treat Robinson’s petition for writ of certiorari as an appeal because a direct appeal is the appropriate method to review a circuit court order denying a petition for writ of habeas corpus filed in the circuit court. See Fla. R.App. P. 9.030(b)(1)(A); Johnson v. State, 390 So.2d 1234, 1235 n. 1 (Fla. 5th DCA 1980).

Robinson filed a petition for writ of ha-beas corpus in the circuit court for Volusia County, attacking an habitual offender sentence imposed in the circuit court for Polk County, Florida. The trial court correctly concluded that the proper venue for Robinson’s petition was in Polk County. Bryant v. State, 780 So.2d 978 (Fla. 5th DCA 2001).

AFFIRMED.

SAWAYA, MONACO and EVANDER, JJ., concur.


text:
    Lowell H. KYLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1546.
    District Court of Appeal of Florida, Fifth District.
    Aug. 7, 2007.
    Rehearing Denied Aug. 30, 2007.
    Lowell H. Kyle, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 886 So.2d 336 (Fla. 5th DCA), cause dismissed, 902 So.2d 792 (Fla.2004).

PLEUS, MONACO and EVANDER, JJ., concur.


text:
    Luben CHRISTOFF, etc., Appellant, v. The HARTFORD INSURANCE COMPANY OF the MIDWEST, etc., Appellee.
    No. 3D06-2967.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Quinn Law Firm, and Jerome G. Quinn, Sr., for appellant.
    Syprett, Meshad, Resnick, Lieb, Dum-baugh, Jones, Krotec Westheimer, and Teresa D. Jones, Sarasota, for appellee.
    Before GERSTEN, C.J., and WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Tarr v. Chicago Ins. Co., 680 So.2d 594 (Fla. 3d DCA 1996).


text:
    Colorest VANDIVER, Appellant, v. CHARTER REALTY GROUP, INC., Appellee.
    No. 3D06-2250.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Hunter, Williams Lynch and Christopher J. Lynch, for appellant.
    Quintairos, Prieto, Wood Boyer and Harold S. Stevens and Christy Brigman, Fort Lauderdale, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Robert-Blier v. Statewide Enters., Inc., 890 So.2d 522 (Fla. 4th DCA 2005); Shaffer v. Wells Fargo Guard Servs., 528 So.2d 389 (Fla. 3d DCA 1988), review denied, 534 So.2d 401 (Fla.1988); see also 10 Fla. Jur.2d Condominiurns and Cooperative Apartments § 139 (2005).


text:
    In the Interest of A.G., Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2312.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General and Charles M. Fahlbusch, Senior Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, J., and FLETCHER, Senior Judge.
   PER CURIAM.

A.G. appeals the trial court’s order of involuntary commitment entered pursuant to section 394.467, Florida Statutes (2006). Because the record has competent substantial evidence to support the trial court’s finding, we affirm. See Rosicka v. State, 898 So.2d 1098, 1099 (Fla. 1st DCA 2005).

Affirmed.


text:
    Donnel Andrew SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-959.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Roland A- Soler, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   PER CURIAM.

Affirmed. Troy v. State, 948 So.2d 635, 645-46 (Fla.2006), cert. denied, — U.S. -, 127 S.Ct. 2981, 168 L.Ed.2d 711 (2007).


text:
    Daniel GARNICKI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3176.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Paul J. Kneski, Miami, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, J., and FLETCHER, Senior Judge.
   PER CURIAM.

Affirmed. See Galindez v. State, 955 So.2d 517 (Fla.2007); Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005).


text:
    James L. REINGLASS, Appellant, v. Spiros PETTAS a/k/a Hristos Pettas, individually & d/b/a Flex Yacht, Inc., and John Serretas, individually & d/b/a European Custom Woodworks, Inc., Appellees.
    No. 4D06-1676.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Gary A. Isaacs of Gary A. Isaacs, P.A., West Palm Beach, for appellant.

      Lawrence I. Bass of the Law Office of Lawrence I. Bass, North Palm Beach, for appellee European Custom Woodworks, Inc.
   On Motion For Rehearing, Reconsideration & Clarification

PER CURIAM.

We grant appellee’s motion for rehearing, reconsideration and clarification, and withdraw the opinion of July 5, 2007.

KLEIN, STEVENSON and MAY, JJ„ concur.


text:
    Desmond DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1834.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Desmond Davis, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Desmond Davis appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with respect to one of his claims.

Davis alleges that one of the predicate offenses used to qualify him for habitual offender sentencing did not exist as a matter of law, or that it was a juvenile adjudication that did not qualify for such purpose. At issue is 95-7170, associated with attempted burglary of a dwelling. This appears to be the sole predicate offense that did not relate to the purchase or the possession of a controlled substance. Woods v. State, 807 So.2d 727 (Fla. 1st DCA 2002).

Davis’s claim is cognizable in a rule 3.800(a) motion if the error can be determined from the record. See Bover v. State, 797 So.2d 1246 (Fla.2001). Our record does not contain documents to refute this legally sufficient claim: Sheffield v. State, 903 So.2d 1009 (Fla. 4th DCA 2005). Accordingly, we reverse and remand for further review of Davis’s claim that 95-7170 was not a qualifying predicate offense.

GUNTHER, STONE and POLEN, JJ., concur.


text:
    Rosendo G. VELAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2080.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.

      Robert Pasch of Gonzalez, Porcher, Al-bear & Garcia, Lake Worth, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Rosendo Velazquez, appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Appellant set forth the requisite pleadings provided in State v. Green, 944 So.2d 208, 219 (Fla.2006), in his motion for post-conviction relief. Specifically, appellant alleged that the trial court did not advise him of deportation consequences at the time of the plea; he submits that he would not have accepted the plea knowing it subjected him to deportation. Id. Further, the trial court did not provide record attachments that conclusively refuted appellant’s claims.

As appellant’s motion was timely and met the threshold allegations necessary to support the claim, this case is reversed and remanded to the trial court for further proceedings. See Ghneim v. State, 950 So.2d 542, 543 (Fla. 4th DCA 2007); see also Gaston v. State, 950 So.2d 397 (Fla.2007). On remand, the trial court may again deny this motion if the allegations are conclusively refuted by the record attachment. Martinez v. State, 842 So.2d 900 (Fla. 2d DCA 2003). Otherwise, the trial court must conduct an evidentiary hearing on the claim, at which the court may consider any other defenses the state might raise, such as laches.

STONE, WARNER and GROSS, JJ., concur.


text:
    Neville EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1549.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Neville Edwards, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Neville Edwards appeals an order denying an amended rule 3.850 motion as successive. On appeal, the state agrees that because the amended motion was filed within the two-year time limit and before the court ruled on the original motion and first supplemental motion, the new claims raised in the amended motion should not have been denied as successive. See Gaskin v. State, 737 So.2d 509 (Fla.1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004). The first 18 claims were already considered on the merits. Accordingly, we reverse and remand for the trial court to rule on grounds (19) and (20) of appellant’s amended rule 8.850 motion.

GUNTHER, POLEN and TAYLOR, JJ., concur.


text:
    Jonathan Tarell FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3595.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Battle v. State, 911 So.2d 85, 89 (Fla.2005) (holding fundamental error is that which reaches down into the trial’s validity to the extent that a guilty verdict could not have been obtained without the assistance of the error).

PALMER, C.J., THOMPSON and SAWAYA, JJ., concur.


author: THOMPSON, J.

text:
    John D. DUDLEY, Appellant, v. Ellen F. SCHMIDT, Appellee.
    No. 5D06-3821.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    Richard J. D’Amico, Daytona Beach, for Appellant.
    Bruce A. Hochstetler, Daytona Beach, for Appellee.
   THOMPSON, J.

The appellant, John Dudley, challenges the trial court’s order denying his motion for relief from judgment or to set aside the court’s order denying him attorney’s fees pursuant to section 57.105, Florida Statutes (2005), based upon allegedly false statements made by the appellee, Ellen Schmidt, in her petition for injunction against repeat violence. We affirm.

There is no basis for the imposition of attorney’s fees in a proceeding for injunction against repeat violence under section 741.30, Florida Statutes (2005). Attorney’s fees cannot be awarded in a domestic violence injunction case. See Bane v. Bane, 775 So.2d 938, 942 n. 4 (Fla.2000) (citing Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000), Abraham v. Abraham, 700 So.2d 421 (Fla. 3d DCA 1997), Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997), and Baumgartner v. Baumgartner, 693 So.2d 84 (Fla. 2d DCA 1997)). See also Ratigan v. Stone, 947 So.2d 607, 608 (Fla. 3d DCA 2007) (holding trial court erred in awarding attorney’s fees in the domestic violence injunction proceeding because there is no statutory authority to award fees as sanctions in such case); Geiger v. Schrader, 926 So.2d 432, 433 (Fla. 1st DCA 2006) (holding there is no provision for an award of attorney’s fees in a section 741.30 proceeding); Cisneros v. Cisneros, 831 So.2d 257, 258 (Fla. 3d DCA 2002) (holding trial court was without jurisdiction to award trial level attorney’s fees pursuant to section 57.105 for domestic violence proceeding).

AFFIRMED.

PALMER, C.J., and MONACO, J., concur.


text:
    Kimberly OHRN, Appellant, v. Ashlee Jewel WRIGHT, Appellee.
    No. 5D06-4068.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    Bart Schneider, of Bart Schneider, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We reverse the final judgment of injunction for protection against repeat violence entered pursuant to section 784.046, Florida Statutes (2006). We do so because the transcript of the hearing reflects that the trial court did not swear either witness and did not permit the appellant, Kimberly Ohrn, to call a witness who could have offered testimony to support her version of the incidents that had occurred between the parties. These actions constituted a due process violation.

Section 784.046, Florida Statutes (2006), requires a “full hearing” prior to entering a permanent injunction against repeat violence. To satisfy the constitutional and statutory imperative of due process, at an injunction hearing, the parties must have an opportunity to prove or disprove the allegations made in the complaint. All witnesses should be sworn, each party should be permitted to call witnesses with relevant information, and cross-examination should be permitted. Utley v. Baez-Camacho, 743 So.2d 613, 614 (Fla. 5th DCA 1999). While we are sympathetic to the time constraints faced by busy trial courts, we cannot ignore the dictates of the Florida Statutes or the requirements of fundamental due process concerning the procedures to be utilized in making critical decisions of this nature. See Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997).

REVERSED AND REMANDED.

ORFINGER, MONACO and EVANDER, JJ„ concur.

      . Section 784.046(6)(a), Florida Statutes (2006), which governs injunctions for repeat violence, states, in pertinent part:
      (6)(a) When it appears to the court that an immediate and present danger of violence exists, the court may grant a temporary injunction which may be granted in an ex parte hearing, pending a full hearing, and may grant such relief as the court deems proper, including an injunction enjoining the respondent from committing any acts of violence.
      (Emphasis added).


text:
    Sylvia MATHIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2731.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Sylvia Mathis, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

On May 4, 2006, this Court issued an opinion in case 06-1775, granting the petitioner’s petition for writ of certiorari and ordering the trial court to consider the merits of the petitioner’s motion to reduce or modify sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Mathis v. State, 957 So.2d 692 (Fla. 1st DCA 2007). On May 10, 2007, the trial court complied with the opinion and denied petitioner’s motion on the merits. However, mandate for the opinion in case 06-1775 had not issued at the time the trial court entered its order. Thus, the trial court did not have jurisdiction to consider the 3.800(c) motion. Cf. Brooks v. State, 937 So.2d 827 (Fla. 2d DCA 2006) (because mandate had not issued, the trial court lacked jurisdiction to resentence Brooks); State v. Miyasato, 805 So.2d 818 (Fla. 2d DCA 2001) (mandate functions to end the jurisdiction of the appellate court and to return full jurisdiction of the case to the trial court); Washington v. State, 637 So.2d 296 (Fla. 1st DCA 1994) (the judgment of an appellate court becomes final upon the issuance of a mandate). Accordingly, we grant the petition for writ of certiorari and quash the trial court’s May 16, 2007, order denying petitioner’s motions to reduce sentence. We remand for the trial court to enter an order on the merits of the petitioner’s motions to correct or modify sentence after mandate issues and jurisdiction returns to the trial court.

Petition for writ of certiorari GRANTED.

DAVIS and POLSTON, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.


text:
    Keith COVERDALE, Appellant, v. Robin SPENCER, Appellee.
    No. 1D06-5587.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Keith Coverdale, pro se, Appellant.
    No appearance for the Appellee.
   PER CURIAM.

Dismissed. See Fla. R.App. P. 9.020(h); Frantz v. Moore, 772 So.2d 581 (Fla. 1st DCA 2000). All pending motions are denied as moot.

DAVIS and POLSTON, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.


text:
    James J. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2149.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    James J. Brown, pro se.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee; Jay Taylor, Assistant State Attorney, Jacksonville, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the lower tribunal’s order denying successive motion for postconviction relief, rendered on or about May 3, 2006, in Duval County Circuit Court case number 16-1998-CF-8075-AXXX, is granted. Upon issuance of mandate herein, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(B).

PETITION GRANTED.

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


text:
    Joel BREWER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2459.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Joel Brewer, pro se, Petitioner.

      Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s recent actions, we determine that the granting of mandamus relief is not warranted at this time. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). Therefore, the petition for writ of mandamus is denied. However, we strongly encourage the circuit court to consider and dispose of the pending motion for postcon-viction relief promptly.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Germaine R. RUDDICK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3316.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.
    Germaine R. Ruddick, pro se.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Joseph R. FRANCIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3335.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2007.

      Larry D. Simpson of Judkins, Simpson & High, Tallahassee; Elliot H. Seherker and Elliot B. Kula of Greenberg, Traurig, P.A., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Joseph R. Francis petitions this court for a writ of habeas corpus, challenging an order of the Circuit Court for Bay County which revoked his pretrial release in a 2003 criminal matter pending there. Petitioner, however, is detained in Nevada by order of a United States District Judge who is presiding over charges of income tax evasion against Francis. Petitioner is not within the territorial jurisdiction of this court and not detained on authority of an order issued by a court under our supervisory jurisdiction. Therefore we do not have jurisdiction to issue a writ of habeas corpus. Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814 (Fla.1996); Murray v. Regier, 872 So.2d 217 (Fla.2002). The petition for writ of habeas corpus will be treated as seeking a writ of certiorari. Fla. R.App. P. 9.040(c).

Petitioner’s pretrial release was revoked because the court found probable cause that Francis, who faces new charges in Bay County of introduction of contraband into a correctional facility, had violated the terms of his release by committing new law violations. This, according to the circuit court, impugned the integrity of the judicial process and justified revocation of the bond in the 2003 case. Petitioner argues that the circuit court was required to reconsider conditions which would protect the community from physical harm and assure his presence at trial and that pretrial detention was permissible only if no such conditions were adequate. The state argues, and we agree, that such considerations are not required where the violation of pretrial release is commission of another criminal offense. The finding of the circuit court that the commission of the new offenses impugned the integrity of the judicial process was a permissible basis for revocation of pretrial release. Parker v. State, 843 So.2d 871, 878 (Fla.2003); see also Alexander v. Judd, 930 So.2d 847 (Fla. 2d DCA 2006); Perry v. State, 842 So.2d 301 (Fla. 5th DCA 2003).

PETITION DENIED.

BROWNING, C.J., DAVIS and POLSTON, JJ., concur.


author: STRINGER, Judge.

text:
    P.C. and P.C., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Leenetta Blanton-Grizzard, Esquire, Appellees.
    No. 2D07-878.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.
    Melissa A. Tartaglia of Tartaglia Law Group, New Port Richey; and Thomas Wade Young, Orlando, for Appellants.
    Bernie McCabe, State Attorney, Sixth Judicial Circuit, and Kathleen R. Kelesyan, Assistant State Attorney, Clearwater, for Appellee Department of Children and Family Services.
    Leenetta Blanton-Grizzard, pro se.
   STRINGER, Judge.

Appellants P.C. and P.C. petitioned for certiorari review of the trial court’s order denying their motion to intervene in the termination of parental rights proceedings relating to their former foster child. We treat their petition as a direct appeal of a final order. See Fla. R.App. P. 9.110(k); see also Adoption Miracles, LLC v. S.C.W. (In the Interest of S.N.W.), 912 So.2d 368, 370 (Fla. 2d DCA 2005) (holding that an order denying a motion to intervene in pending litigation is a final, appealable order because it completely disposes of the case as to the party seeking intervention). After a thorough review of the record on appeal, we find that the trial court did not err in denying the motion to intervene. Accordingly, we affirm.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.


text:
    George BROWN, Petitioner, v. Sergeant Alice L. WISE; Captain James R. Woodard; Brenda J. Crumpton, property room official; and classification specialist, Lori M. Elton, Respondents.
    No. 1D07-2124.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2007.
    George Brown, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Moore v. Corr. Med. Serv., 817 So.2d 963 (Fla. 1st DCA 2002).

ALLEN, WOLF, and LEWIS, JJ., concur.


text:
    Juan Pablo CAMPOS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2279.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2007.
    Juan Pablo Campos, pro se.
    Bill McCollum, Attorney General, Thomas Winokur and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ALLEN, WOLF, and LEWIS, JJ., concur.


text:
    Terry Lee HEATLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3835.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2007.
    Terry Lee Heatly, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

ALLEN, WOLF, and LEWIS, JJ., concur.


text:
    Michael McDONALD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3839.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2007.
    Michael McDonald, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ALLEN, WOLF, and LEWIS, JJ., concur.


text:
    Daniel C. MEDBERRY, Petitioner, v. Officer McCALLISTER, individually as a correctional officer at Union Correctional Institution, and Officer Ga-brielli, individually as a correctional officer at Union Correctional Institution, Respondents.
    No. 1D07-3888.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2007.
    Daniel C. Medberry, pro se.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Moore v. Corr. Med. Servs., 817 So.2d 963 (Fla. 1st DCA 2002); Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

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


text:
    Donald Hugh ARMOUR, Jr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-5427.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Donald Hugh Armour, Jr., pro se, Petitioner.
    Kim Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Donald Hugh Armour petitions this court for writ of certiorari challenging the circuit court’s order construing his petition for writ of habeas corpus as a petition for non-habeas relief and affirming the Florida Parole Commission’s suspension of his presumptive parole release date. We grant the petition.

The Commission issued an order granting parole to Armour in March 2003, setting his effective parole release date [EPRD] for April 29, 2003. The following month, the Commission postponed the release because it had received “new information,” namely that the State of Michigan had not completed its investigation of Armour’s proposed parole release plan. See § 947.1745(5)(a), Fla. Stat. (2005). Armour waived his right to a hearing and agreed to an extension of his EPRD to a date 30 days from the Commission’s receipt of Michigan’s completed investigation. Before receiving anything from the State of Michigan, however, the Commission issued an order rescinding Armour’s parole and suspending his presumptive parole release date [PPRD], finding that his “release would be contrary to the provisions of the Florida Statutes.”

In June 2003, Michigan informed the Commission that the conditions in Armour’s proposed plan were satisfactory and recommended that he be allowed parole release in Michigan. Thereafter, a parole examiner conducted an EPRD interview and recommended that Armour be released on parole, and included in the report that the Department of Corrections staff recommended that he be released on parole. The Commission nevertheless issued a report stating that it had decided not to authorize his EPRD and that his PPRD of September 18, 2003, would remain suspended.

Armour sought review from the Commission, claiming that it had “no new good cause or exceptional circumstance, no new information or unfavorable institutional conduct, whereby to justify its action.” The Commission denied the request for review, stating that there is no authority for appealing the suspension of a PPRD. Armour filed a petition for writ of habeas corpus in Leon County Circuit Court, seeking to compel the Commission to release him on parole consistent with the previously set EPRD and the parole plan approved by the State of Michigan. The circuit court determined that Armour was not properly seeking habeas relief, “[because the complaint does not challenge the lawful authority of the Department of Corrections’ detention of the plaintiff,” but instead sought certiorari or mandamus relief, and directed him to pay a filing fee.

The lower court departed from the essential requirements of law by construing Armour’s petition for writ of habe-as corpus as seeking non-habeas relief. See Thomas v. State, 751 So.2d 764 (Fla. 1st DCA 2000) (granting certiorari because the circuit court applied the incorrect law by treating petitioner’s 3.800(c) motion as seeking relief under rule 3.800(a), and did not reach the merits of the motion). Armour was not challenging the suspension of his PPRD but was challenging the rescission of his EPRD. This court has stated that “a Commission order suspending an inmate’s PPRD and thereby refusing to set an effective parole release date is appropriately reviewed by mandamus,” but that “the proper remedy to obtain review of a Commission’s decision after it has set an EPRD is by habeas corpus for release.” Williams v. Fla. Parole Comm’n, 625 So.2d 926, 934 (Fla. 1st DCA 1993). “[Judicial review is ... available through the common law writs of mandamus, for review of PPRD’s, and habeas corpus, for review of effective parole release dates.” Griffith v. Fla. Parole & Probation Comm’n, 485 So.2d 818, 820 (Fla.1986).

The Commission stated that the reason it was postponing Armour’s EPRD was because it did not have the information it needed from Michigan, yet it rescinded his EPRD before receiving the information from Michigan. Armour claimed the Commission was bound by the EPRD unless it received new and prejudicial information, and that it rescinded his parole based upon the same information the Commission had already considered when it established his EPRD.

By concluding that Armour was challenging the suspension of his PPRD, which it reviewed for abuse of discretion, rather than whether the Commission had the statutory authority to rescind his EPRD, the circuit court violated a clearly established principle of law resulting in a miscarriage of justice. See, e.g., Howard v. Fla. Parole Comm’n, 939 So.2d 247 (Fla. 1st DCA 2006). We therefore grant the petition for writ of certiorari and direct the lower court to reinstate Armour’s petition for writ of habeas corpus, to vacate the order directing him to pay a filing fee, and to transfer his petition to the Union County Circuit Court, the county where Armour is incarcerated. See, e.g., Carter v. Fla. Parole Comm’n, 955 So.2d 665 (Fla. 1st DCA 2007); Knowles v. Fla. Parole Comm’n, 846 So.2d 1246 (Fla. 1st DCA 2003).

WOLF, PADOVANO, and ROBERTS, JJ., concur.

      . The petition for writ of certiorari was timely, because his motion for rehearing below was timely under the appellate rules and thus tolled the time for filing his notice of appeal. See Newell v. Moore, 826 So.2d 1033 (Fla. 1st DCA 2002).

      . The report recounted the facts of Armour’s murder conviction in 1976, six disciplinary reports he received between 1978 and 1998, and five disciplinary reports he received while he was imprisoned in Nevada and Oregon between 1986 and 1991. The Commission noted his history of substance abuse and the fact that in a psychological evaluation in 2001, he denied any history of alcohol or drug abuse, although he had previously received four disciplinary reports for consumption of intoxicants while incarcerated. The Commission observed that there is no known method to reliably predict future violent behavior, and determined that Armour "is still in need of evaluation, observation, and treatment and recommend[ed] that he participate in anger and stress management, mental health treatment, and substance abuse.” The Commission concluded that these facts "have demonstrated his unsuitability for community based supervision and are not conducive indicators for a successful parole.”


text:
    Walter K. PENDARVIS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4760.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Walter K. Pendarvis, pro se.
    Bill McCollum, Attorney General, and Kathleen Von Hoene, General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Walter Pendarvis timely petitions for certiorari review of an order of the circuit court denying his petition for writ of mandamus, in which he challenged the Department of Corrections’ gain-time computation. The circuit court denied that claim on the merits, and Pendarvis does not challenge that ruling before this Court. However, he asserts that the circuit court erred when it imposed a lien on his inmate trust account. The Department concedes this error and we agree. See Mathis v. McDonough, 957 So.2d 95 (Fla. 1st DCA 2007).

Accordingly, we quash the order imposing a lien on petitioner’s inmate trust account and remand to the circuit court with instructions to direct the reimbursement of any funds collected pursuant to the improper lien.

WOLF, PADOVANO, and ROBERTS, JJ., concur.


text:
    Chambree PAYNE, Appellant, v. WAL-MART, and Sedgwick CMS, Appellees.
    No. 1D06-4824.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Nora Leto, of Kaylor & Kaylor, P.A., Winter Haven, for Appellant.
    Thomas P. Vecchio, of Ross Vecchio, P.A., Lakeland, for Appellees.
   PER CURIAM.

We AFFIRM the JCC’s order on trial attorney’s fees and costs and DENY the motion for appellate attorney’s fees. Buitrago v. Landry’s, 949 So.2d 1046 (Fla. 1st DCA 2006); Lundy v. Four Seasons Ocean Grand Palm, Beach, 932 So.2d 506 (Fla. 1st DCA 2006), review denied 939 So.2d 93 (Fla.2006).

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


text:
    Michael JESSE, Appellant, v. COMMERCIAL DIVING ACADEMY OF JACKSONVILLE, INC., Appellee.
    No. 1D06-6260.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.

      Michael P. Milton, and C. Ryan Eslinger of Milton, Leach, D’Andrea Charek & Milton, P.A., Jacksonville, for Appellant.
    Kenneth A. Tomchin, Bryan R. Rendzio, and Jay B. Watson of Tomchin & Odom, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order dismissing with prejudice his personal injury action based on a determination that appellant intentionally repeatedly gave false testimony on a material issue during discovery. Our standard of review is abuse of discretion. See Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572, 574 (Fla. 1st DCA 2003); Baker v. Myers Tractor Servs., Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000). We have carefully reviewed the record, and conclude that the trial court’s findings of fact are supported by competent substantial evidence. Moreover, those findings demonstrate clearly and convincingly that appellant did, in fact, intentionally testify falsely on a material issue. Accordingly, we hold that the trial court did not abuse its discretion when it dismissed appellant’s action with prejudice as a sanction for such conduct.

AFFIRMED.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


text:
    E.K. a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0950.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s ruling, which permitted the State to have both first and last closing arguments, where Appellant did not present any testimony. It appears the trial court erroneously believed the recent enactment of section 918.19, Florida Statutes (2006), governed the order of closing arguments in juvenile cases. It does not.

Section 918.19, Florida Statutes applies only to the order of closing arguments in adult criminal cases. See id.; see also Fla. R.Crim. P. 3.381. In juvenile proceedings, a child offering no testimony other than his or her own, is entitled to concluding argument. See Fla. R. Juv. P. 8.110(d).

In this case, the arguments were made before the trial court sitting as the finder of fact. However, because the right to final closing argument is a vested procedural right, the error cannot be considered harmless. See Wike v. State, 648 So.2d 683, 686 (Fla.1994); Freeman v. State, 846 So.2d 552 (Fla. 4th DCA 2003). Consequently, Appellant’s adjudication of delinquency is REVERSED and the case REMANDED for additional proceedings.

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


text:
    N.S., a child, Petitioner, v. Anthony FLOWERS, Superintendent, Palm Beach Regional Juvenile Detention Center, Respondent.
    No. 4D07-3030.
    District Court of Appeal of Florida, Fourth District.
    Aug. 14, 2007.
    Carey Haughwout, Public Defender, and Daniel Cohen, Matthew Blust and Lindsey Hanson, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

N.S., a juvenile, petitions this court for a writ of habeas corpus, contending that she is being unlawfully detained in secure detention despite a risk assessment instrument (RAI) score of zero. The trial court did not give written reasons for ordering N.S.’s more restrictive placement. A trial court is required to provide written reasons if it orders a more restrictive placement than indicated by the RAI. See § 985.255(2), (3)(b), Fla. Stat. (2006); M.P. v. Gardner, 838 So.2d 711, 713 (Fla. 4th DCA 2003); T.D.S. v. State, 922 So.2d 346 (Fla. 5th DCA 2006). Accordingly, the petition for writ of habeas corpus is hereby granted. The circuit court shall immediately release N.S. from secure detention. It may revisit the issue and enter written findings that would support N.S.’s continued detention if there is a basis to do so. See D.B. v. State, 848 So.2d 1219 (Fla. 3d DCA 2003).

STONE, WARNER and STEVENSON, JJ., concur.


text:
    Terrance Jamel WOLFE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3519.
    District Court of Appeal of Florida, Fifth District.
    Aug. 14, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Wilcher v. State, 946 So.2d 114 (Fla. 5th DCA 2007).

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


text:
    W.T. PARKER, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-6386.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2007.
    W.T. Parker, pro se.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

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