author: SHEPHERD, J.

text:
    James Russell WARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-685.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael E. Hantman and Paulette R. Taylor, Assistant Attorneys General, for ap-pellee.
    Before COPE and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Defendant, James Russell Ward, appeals his conviction and sentence. Upon careful consideration, we find no merit in any of the challenges defendant makes to his conviction. However, we find it necessary to address the enhancement of his sentence and certify a question of great public importance.

Defendant was found guilty by a jury of criminal mischief and burglary of an unoccupied dwelling. At the sentencing hearing, the State requested a prison .release reoffender (PRR) sentence be imposed based upon the burglary conviction, a qualifying offense under the PRR statute. See § 775.082(9)(a)lq, Fla. Stat. (2002). To establish that Ward qualified as a PRR, the State needed to prove defendant committed the burglary within three years after being released from prison. § 775.082(9)(a)l, Fla. Stat. (2002). Ward alleges the State utilized impermissible hearsay evidence to meet this requirement.

The alleged hearsay evidence offered at the hearing consisted of a document on Florida Department of Corrections (the Department) letterhead, which stated: STATE OF FLORIDA)

COUNTY OF LEON)

I, MICHELLE GLISAR, RECORDS MANAGEMENT ANALYST, CENTRAL RECORDS OFFICE, STATE OF FLORIDA DEPARTMENT OF CORRECTIONS, DO HEREBY CERTIFY THAT THIS SEAL IS THE OFFICIAL SEAL OF THE FLORIDA DEPARTMENT OF CORRECTIONS. I ALSO CERTIFY THAT THE LAST RELEASE DATE FOR INMATE JAMES WARD, DC# 180200, B/M, DOB: 11/23/1967, WAS DECEMBER 25, 1999, FOR CASE #97-31989, 98-07938-MIAMI DADE COUNTY, FLORIDA.

GIVEN UNDER MY HAND AND SEAL, THIS JANUARY 13, 2005.

[Signature]

MICHELLE GLISAR,

RECORDS MANAGEMENT ANALYST

Defendant objected to the offer on the ground the document was not self-authenticating and did not fall within any exception to the rule excluding hearsay.' The State argued the letter was admissible under the public records exception to the hearsay rule, Section 90.803(8), Florida Statutes (2002). The trial court overruled the objection and sentenced defendant as a PRR.

The public records exception to the hearsay rule permits otherwise inadmissible hearsay so long as the hearsay consists of:

Records, reports, statements reduced to writing, or data compilations, in any fprm, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.

§ 90.803(8), Fla. Stat. (2002) (emphasis added). Under Florida law, the Department has a statutory duty to “obtain and place in its permanent records information as complete as may be practicably available on every person who may become subject to parole.” § 945.25(1), Fla. Stat. (2002); see also Yisrael v. State, 938 So.2d 546, 548-9 (Fla. 4th DCA 2006), review granted, 956 So.2d 458, 458 (Fla.2007). An inmate’s release date is the type of information falling within this statutory duty. See Yisrael, 938 So.2d at 548-49. Ward’s release date record — the “matter observed” under the public records exception — was created by personnel employed by the Department and observed by Analyst Glisar for purposes of assisting the State in enhancing defendant’s sentence. Ward contends Analyst Glisar qualifies as “other law enforcement personnel” for purposes of the public records exception. § 90.803(8), Fla. Stat.'(2002).

Although the , Florida legislature has proven itself fully up to the task of crafting and varying the scope of the term “law enforcement personnel” in the Florida Statutes, it has not defined “law enforcement personnel” for purposes of section 90.803(8) of the Florida public records law. Cf § 496.404(12)(b), Fla. Stat. (2002) (defining “law enforcement officer” to include “any person who is ... employed by ... the state ... and ... [w]hose responsibility includes supervision, protection, care, custody, or control of inmates within a correctional institution”); § 784.07(i)(a), Fla. Stat. (2002) (defining “law enforcement officer” to include “correctional officer[s]”); § 790.001(8)(d), Fla. Stat. (2002) (defining “law enforcement officer” to include designated employees “of the state prisons or correctional systems who ha[ve] been so designated by the Department of Corrections”); § 112.531(1), Fla. Stat. (2002) (defining “law enforcement officer”); § 250.535(l)(e), Fla. Stat. (2002) (defining “law enforcement agency”); § 397.311(17), Fla¡ Stat. (2002) (defining “law enforcement officer” as “a law enforcement officer as defined in s. 943.10(1)”); § 394.455(16), Fla. Stat. (2002) (defining “law enforcement officer” as “a law enforcement officer as defined in s. 943.10”); § '403.413(2)(c), Fla. Stat. (2002) (defining “law enforcement officer”); § 539.001(2)(b) (defining appropriate law enforcement official); § 705.101(4), Fla. Stat. (2002) (defining “law enforcement officer”); § 741.28(4), Fla. Stat. (2002) (defining “law enforcement”); § 896.101(2)(d), Fla. Stat. (2002) (defining “law enforcement officer”); § 901.1505(1), Fla. Stat. (2002) (defining “federal law enforcement officer”); § 934.02(6), Fla. Stat. (2002) (defining “law enforcement officer”); § 943.10, Fla. Stat. (2002) (defining “law enforcement officer”). Therefore, lacking any legislative guidance for this purpose, defendant argues “other law enforcement personnel” within the meaning of the Florida public records law includes records personnel. Defendant argues the use of the word “personnel” rather than “officers” in the phrase broadens the scope of the exception.

Although defendant’s argument on appeal is supportable both by reference to .the plain and ordinary meaning of the phrase “law enforcement” as can be found in a dictionary, see, e.g., Black’s Law Dictionary 907 (8th ed.1999) (defining “law enforcement” as “[t]he detection and punishment of violations of the law[]” and “[plolice officers and other members of the executive branch of government charged with carrying out and enforcing the criminal law”) (emphasis added); Montgomery v. State, 897 So.2d 1282, 1285 (Fla.2005) (approving the use of dictionary definitions “when necessary”), and from the breadth of the charge given to the Department by the Florida Legislature, see § 945.025(1), Florida Statutes (2002) (stating the Department has “supervisory and protective care, custody, and control of the inmates, buildings, grounds, property, and all other matters pertaining to the following facilities and programs for the imprisonment, correction, and rehabilitation of adult offenders”); § 945.04(1), Fla. Stat. (2002) (“The Department of Corrections shall be responsible for the inmates and for the operation of, and shall have supervisory and protective care, custody, and control of, all buildings, grounds, property of, and matters connected with, the correctional system.”), we nevertheless conclude defendant’s argument is foreclosed by Burgess v. State, 831 So.2d 137, 142 (Fla.2002). In Burgess, the Florida Supreme Court considered whether a trial court could rely upon a sworn arrest report to decide — in a proceeding brought under Florida Rule of Criminal Procedure 3.800(a) — whether consecutive habitual offender sentences were illegal. Id. at 139. Answering the question in the negative, our high court held that “unlike the information in the police report which petitioner [sought] to rely on, the jail records relied upon in [an earlier case, State v. Mancino, 714 So.2d 429, 430 (Fla.1998) ] clearly fall under the public records exception to the hearsay rule.” Burgess, 831 So.2d at 142. Although Analyst Glisar’s statement relies upon the state prison records maintained by the Department rather than jail records, based upon the language of Burgess, we conclude we have little choice but to affirm the trial court’s decision that Analyst Glisar’s statement is admissible under the public records exception.

While we note the First District has found statements such as the one here inadmissible, Gray v. State, 910 So.2d 867, 869-70 (Fla. 1st DCA 2005), review denied, 920 So.2d 628, 628 (Fla.2005), we decline to certify conflict because it is unclear, and we are unwilling to speculate, whether the State argued a public records exception theory of admissibility in that case. See Gray, 910 So.2d at 869 (noting “the State proved no proper predicate for its admission under any exception to the rule excluding hearsay”). However, because the issue presented to us is recurrent in sentencing proceedings, we believe it should be authoritatively resolved. Accordingly, we certify the following question to the Florida Supreme Court as one of great public importance:

WHETHER A CERTIFICATION OF A DEFENDANT’S RELEASE DATE BY THE DEPARTMENT OF CORRECTIONS IS ADMISSIBLE IN SENTENCING PROCEEDINGS UNDER THE HEARSAY EXCEPTION FOR PUBLIC RECORDS AND REPORTS UNDER SUBSECTION 90.803(8), FLORIDA STATUTES?

Defendant’s conviction and sentence are affirmed with question of great public importance certified.

      . Defendant also argues that even if the Department’s certification is admissible, the State’s proof fails because there is an error in the date of birth contained therein. The date of birth shown in this certification is November 23, 1967. By contrast, the defendant's date of birth shown in the certification by the clemency coordinator is one year earlier, November 23, 1966. Trial counsel argued that, given the one-year discrepancy in birth year, it followed that the State had failed to prove defendant qualified as a PRR.
      The defense objection on this point was properly overruled. The Department’s certification identifies the inmate as being James Ward, and the certification includes circuit case number 97-31989 from Miami-Dade County, Florida. State Exhibit 2 at the hearing below was the judgment and sentence against this defendant in Miami-Dade County circuit court case number 97-31989. That being so, it is clear the certification refers to this defendant, notwithstanding the discrepancy in the date of birth.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Samuel MANDEL and Annette Mandel, Appellants, v. DECORATOR’S MART, INC. OF DEERFIELD BEACH, John E. Martin and Kathy Martin, Appellees.
    Nos. 4D05-2400, 4D06-2243.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Oct. 25, 2007.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellants.
    Keith T. Grumer and Maidenly Maealu-so of Grumer & Macaluso, P.A., Fort Lauderdale, for appellees.
   GROSS, J.

We write to address an award of attorney’s fees to a prevailing defendant under the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-501.213, Florida Statutes (2003). We affirm all aspects of the award except that portion pertaining to counsel’s travel expenses.

Samuel and Annette Mandel purchased a $3.4 million oceanfront condominium. To complete the interior design of their unit, the Mandéis entered into a contractual relationship with John and Kathy Martin and Decorator’s Mart, Inc. The Martins are interior designers; Decorator’s Mart is a furniture showroom founded 43 years ago by Kathy Martin’s parents.

Experienced in art and antique dealing, the Mandéis were hands-on clients. They were actively involved in the minute details of the project, from hiring vendors and subcontractors to reviewing billings and demanding credits. There was a June 23, 2000 written agreement, an addendum, and multiple oral arrangements.

In May 2002, the Mandéis demanded to see every invoice and backup vendor invoice for the project. The Martins complied with one exception — the vendor cost invoices for the winning Decorator’s Mart bids. After reviewing the invoices, the Mandéis and the Martins disagreed over the amount of a refund. An altercation ensued and the Mandéis accused the Martins of forging invoices. Samuel Mandel showed the Martins their retainer check for legal counsel and threatened to bury them in legal debt.

On June 5, 2002, the Mandéis filed suit. An amended complaint sought an accounting and asserted claims for breach of contract, replevin, and restitution. Decorator’s Mart and the Martins counterclaimed for breach of contract, services rendered, an open account, and account stated, claiming they were owed $70,794.41.

During discovery, the Mandéis learned about money certain subcontractors had paid to the Martins. The Mandéis characterized the payments as “kickbacks”; the Martins labeled them “referral commissions.” In August, 2003, the Mandéis filed a third amended complaint, adding claims for deceptive and unfair trade practices, in violation of section 501.201, Florida Statutes (2003), and fraud in the inducement. Alleging the commission of conduct more odious than a breach of contract, this pleading increased the financial risk for both sides. Section 501.2105(1), Florida Statutes (2003) provides for prevailing party attorney’s fees:

In any civil litigation resulting from an act or practice involving a violation of this part ..., the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.

After a five day trial, the jury returned a verdict against the Mandéis on their breach of contract claim against the Martins, and on their claims, for fraudulent misrepresentation and unfair and deceptive trade practices against all three defendants. The jury found a breach of contract by Decorator’s Mart and awarded the Mandéis $7,490.

On the counterclaim against the Man-dels, the jury awarded $49,852.32 to the Martins and $4,151,83 to Decorator’s Mart. The final judgment found that the Martins and Decorator’s Mart were the prevailing parties for attorney’s fees purposes.

After a hearing, the court awarded $170,609.30 for attorney’s fees under section 501.2105(1), reducing the amount by 5% for time spent on a replevin claim separate and apart from the other claims. The court found these other claims to be “inextricably intertwined” because they shared a “common core of facts” with the section 501.201 claim.

The Mandéis attack the attorney’s fee award on multiple grounds.

First, they argue that the court erred in ruling that the multiple claims in the lawsuit were not separate and distinct for the purpose of calculating the award under section 501.2105(1).

The language of section 501.2105 takes a broad view of compensable attorney time on a case involving a claim of a deceptive or unfair trade practice. Section 501.2105(2) requires that the prevailing party’s attorney submit an affidavit of “time spent on the case.” Similarly, section 501.2105(3) allows a trial judge to award a “legal fee” for hours “actually spent on the case.” This statutory language

contemplates recovery of attorney’s fees for hours devoted to the entire litigation ... and does not require allocation of attorney time between the chapter 501 count and other alternative counts based on the same consumer transaction unless the attorney’s services clearly were not related in any way to establishing or defending an alleged violation of chapter 501.

Heindel v. Southside Chrysler-Plymouth, Inc., 476 So.2d 266, 271 (Fla. 1st DCA 1985). This means that where Chapter 501 claims are based on the same transaction as alternative theories of recovery, “no allocation of attorney’s services need be made except to the extent counsel admits that a portion of the services was totally unrelated to the 501 claim or it is shown that the services related to issues, such as punitive damages, which were clearly beyond the scope of a 501 proceeding.” Id. at 272; see Smith v. Bilgin, 534 So.2d 852, 854 (Fla. 1st DCA 1988).

As alleged in the Mandéis’ third amended complaint, the same conduct supports the contract, fraud, and Chapter 501 claims. During opening statement, the Mandéis’ lawyer used the breach of contract allegations to explain his theory of the Chapter 501 claim. Evidence at trial relevant to one theory of recovery was also relevant to whether a deceptive or unfair trade practice had occurred. In opposition to a motion for directed verdict, the Man-dels’ lawyer argued that facts supporting the Chapter 501 claim also supported his fraud and contract counts.

Because the fraud and contract claims arose from the same “common core” of facts as the Chapter 501 claim, they were not “clearly beyond the scope of a 501 proceeding” as contemplated in Heindel. 476 So.2d at 272. The trial court correctly awarded attorney’s fees for attorney time spent on the fraud and contract claims. See LaFerney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534 (Fla. 5th DCA 1982).

The Mandels rely on Avatar Development Corporation v. DePani Construction, Inc., 883 So.2d 344 (Fla. 4th DCA 2004) and Fielder v. Weinstein Design Group, Inc., 842 So.2d 879 (Fla. 4th DCA 2003), to argue that the claims in this case are separate and distinct. However, neither case involves a Chapter 501 claim intertwined with another legal theory based on a common core of facts. Both cases concern a determination of whether two claims are separate and distinct enough to support an award of prevailing party attorney’s fees.

In Avatar, a stucco contractor sued a developer for breach of contract, foreclosure of a construction lien, and declaratory judgment to interpret the termination clause of the contract. The court held that the lien foreclosure claim for completed work was separate and distinct from the claim for loss of future profits under the contract, so the prevailing party on each claim was entitled to fees. 883 So.2d at 346. This is different from the issue of whether work relating to a breach of contract claim falls under the umbrella of a Chapter 501 claim so that it is compensa-ble.

Although Fielder involved an interior designer/client dispute, the client did not bring a Chapter 501 claim. The interior designer sued for unpaid merchandise. The client counterclaimed for improper charges on previously paid invoices. This court found that the “claims were distinct,” so there could “be a prevailing party on each claim.” 842 So.2d' at 880. Fielder has nothing to do with the question here — whether attorney time is com-pensable spent on a claim related to a Chapter 501 claim. Time spent on an intertwined contract claim could be recoverable under section 501.2105 even though the party seeking Chapter 501 fees was not the prevailing party on a related contract count.

The Mandéis’ second basis for attacking the fee award is that the Martins should not be entitled to any fee incurred prior to the time they amended their complaint to include the Chapter 501 claim. There is no basis, statutory or otherwise, to so limit the recovery. If legal work done early in a case pertains to a subsequently filed Chapter 501 claim, that work is com-pensable to the prevailing party as “hours spent on the case” under section 501.2105(3).

We agree with the Mandéis’ third point, that the award of fees should not have included the travel time of the attorneys. In Fence Wholesalers of America, Inc. v. Beneficial Commercial Corporation, 465 So.2d 570 (Fla. 4th DCA 1985), we held that without proof that a competent local attorney could not be obtained, an award of attorney’s fees from an opponent should not include travel time over and above what a local attorney would charge. See also Gwen Fearing Real Estate, Inc. v. Wilson, 430 So.2d 589, 591 (Fla. 4th DCA 1983). As the second district noted in Chandler v. Chandler, 330 So.2d 190,191 (Fla. 2d DCA 1976),

We are aware of no authority for including [travel time] and, indeed, Canon 2 of the Code of Professional Responsibility indicates to the contrary when, among other factors properly to be considered in determining a reasonable fee, it cites the fee ‘customarily charged in the Locality for similar legal services.... ’ Certainly a reasonable fee for Local counsel would not contemplate the inclusion of travel time as compensable time. It would be incongruous, to say the least, if in the ordinary case nonlocal counsel should fare better insofar as his fees may be assessed against the other party.

Here, appellees’ attorneys practice in Fort Lauderdale. Many competent Palm Beach County attorneys could have handled the case. Accordingly, a reduction of attorney fees by the amount representing travel time is required.

The appellees cite primarily to Wright v. Wright, 577 So.2d 1355 (Fla. 1st DCA 1991), to support their contention that travel fees are appropriate. Wright is distinguishable because it involves special circumstances not present here. Wright held that an award of travel time to the wife’s attorney in a divorce case was proper, even though the wife hired an attorney from Jacksonville, 60 miles away from her Lake City residence. Id. at 1357-58. In ruling that the trial judge should have awarded the wife all the attorney’s fees that she requested, the court pointed to the special circumstances in the case — the small community, the prominence of her husband in the community, and the reasonableness of counsel’s bill. Id. at 1358.

As to the total amount of the attorney’s fee award, we cannot say that the trial court abused its discretion in light of the evidence at the fee hearing. See Humane Soc. of Broward County, Inc. v. Fla. Humane Soc., 951 So.2d 966, 968 (Fla. 4th DCA 2007) (citing General Motors Acceptance Corp. v. Laesser, 791 So.2d 517 (Fla. 4th DCA 2001) (citing First Fed. Sav. & Loan Ass’n of Palm Beaches v. Bezotte, 740 So.2d 589, 590 (Fla. 4th DCA 1999))).

We find no abuse of discretion in the trial court’s evidentiary rulings and no fundamental error in comments made by Kathy Martin.

Affirmed in part, reversed in part, and remanded to the circuit court to remove from the attorney’s fee award that amount attributable to travel hours in excess of what a local attorney would have spent on the case.

STONE and POLEN, JJ., concur.

      . Our experience is that it is not uncommon for litigants to inject claims of fraud and deceptive trade practices into a contractual dispute. This tactic complicates a lawsuit, raises the stakes, and increases the litigation expenses. We have encountered few cases where such claims were successful. For example, there is a difference between establishing a cause of action for fraudulent inducement and proving that someone lied during the performance of a contract (i.e., 'T am positive that the curtains were delivered last Friday.”).


author: WALLACE, Judge.

text:
    Paul A. O’BYRNE, Appellant, v. Molly MILLER, Appellee.
    No. 2D06-4553.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      Paul A. O’Byrne, pro se.
    Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellee.
   WALLACE, Judge.

Paul A. O’Byrne (the Father) appeals a final judgment that increased the amount that he is required to pay monthly to Molly Miller (the Mother) for the support of their minor child. The Father raises multiple issues concerning the trial court’s calculation of the amount of the increase in his monthly child support obligation. The Father also challenges the trial court’s decision to make the increase in his child support obligation retroactive to the date of the filing of the Mother’s petition for modification and the money judgment against him stemming from that decision. With one exception that we explain below, we affirm the final judgment.

Unfortunately, Mr. O’Byrne — who has represented himself both in the trial court and before this court — has not furnished a record adequate for appellate review of the issues that he raises. The evidentiary hearing on the Mother’s petition for modification was held on two separate days in June and August 2006. The' only transcript in our record consists of an excerpt of the proceedings on the first day of the hearing; there is no transcript at all from the second day of the hearing. Because the parties were unable to agree on a statement of the evidence presented on the second day of the hearing, the trial court prepared a “Statement of Proceedings” of the second day in accordance with Florida Rule of Appellate Procedure 9.200(b)(4). The trial court prepared the “Statement of Proceedings” in March 2007, and it appears that the trial court did its best to reconstruct the proceedings that had occurred approximately seven months earlier. Nevertheless, the Statement of Proceedings has too few particulars to permit appellate review of the issues raised by the Father. Moreover, despite the Mother’s objections about the incompleteness of the record, the Father has not furnished a complete transcript of the proceedings on the first day of the hearing. Subject to the exception to be discussed below, the inadequacy of the record compels us to affirm the trial court’s final judgment. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Metzler v. Metzler, 779 So.2d 412, 412 (Fla. 2d DCA 2000). Moreover, the final judgment “on its face reveals neither error nor abuse of discretion.” Am. Bankers Ins. Co. v. Zapata, 761 So.2d 1216, 1217 (Fla. 2d DCA 2000) (citing Applegate, 377 So.2d 1150).

At oral argument, the Mother’s attorney properly conceded that the trial court’s final judgment should be corrected in one respect. When the final hearing was held, the Mother was obligated on an installment contract with an orthodontist for the child’s necessary treatment. The contract is payable at $87.20 monthly for twenty months. The trial court added the $87.20 monthly payment amount to the basic child support obligation that it used to calculate the Father’s share of the monthly child support obligation. The Mother agrees that the trial court should have ordered the $87.20 monthly amount to be “separately paid on a percentage basis.” § 61.30(8), Fla. Stat. (2006). The use of this approach will make it unnecessary for the Father to move for a reduction in the amount of his monthly child support obligation when the twenty-month contract has been paid.

Accordingly, we reverse the final judgment to the extent that it included the $87.20 for the orthodontic services contract in the amount of the basic child support obligation that the trial court used to calculate the Father’s share of the monthly child support obligation. We remand this case to the trial court for the entry of an amended final judgment that will recalculate the amount of the Father’s monthly child support obligation and direct that the $87.20 monthly amount for the orthodontic services contract be paid separately by the parties in accordance with their respective shares of the monthly child support obligation. In all other respects, we affirm the final judgment.

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

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

      . We commend Lorena L. Kiely, the Mother’s attorney, for her professionalism and for her candor to this court. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 571-73 (Fla.2005).


author: ALTENBERND, Judge.

text:
    Luis VALDEZ-GARCIA, a/k/a Luis Garcia-Valdez, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2441.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      Luis Valdez-Gareia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Luis Valdez-Gareia, a/k/a Luis Garcia-Valdez, appeals an order dismissing his petition for a writ of habeas corpus for lack of jurisdiction. Mr. Garcia filed his petition in the circuit court of the county in which he was convicted rather than the circuit court of the county in which he was incarcerated. We affirm.

The circuit court correctly determined that it did not have jurisdiction to treat the petition as a petition for a writ of habeas corpus. However, to the extent the claims in the petition sought to collaterally attack Mr. Valdez-Garcia’s judgment, the petition should have been treated as a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Curtis v. State, 870 So.2d 180, 186 (Fla. 2d DCA 2004); Harris v. State, 789 So.2d 1114, 1115 (Fla. 1st DCA 2001). Nevertheless, we affirm because any such motion was untimely and procedurally barred. Further, the circuit court was not required to transfer this petition to a circuit court with jurisdiction over the habeas petition because it did not allege any entitlement to relief that could have been provided by such a court.

We write to emphasize that a defendant rarely, if ever, has a lawful basis to file a postconviction petition for habeas corpus in the circuit court of the county where he was convicted,-unless it is also the circuit court of the county where the prisoner is detained. ' Since 1879, Florida’s habeas corpus law has provided that petitions for habeas corpus shall be filed only in the circuit court of the county where a prisoner is detained. Ch. 3129, § 8, Laws of Fla. (1879). When an imprisoned defendant wishes to collaterally attack his judgment or sentence in the circuit court of the county where he was convicted, the proper procedure is to file a motion for postcon-viction relief under rule 3.850.

On May 24, 2001, Mr. Valdez-Gareia attacked his girlfriend with a knife in Tampa, Florida. As a result, he was convicted of attempted murder, armed burglary of a dwelling, aggravated assault, and battery in the circuit court of the Thirteenth Judicial Circuit in April 2002.

Mr. Valdez-Gareia appealed his judgments and sentences to this court. In that appeal, he argued that the trial court should have conducted a competency evaluation prior to trial and that he was absent without • a valid waiver during critical stages of his trial. This court affirmed his judgments and sentences in 2003 without a written opinion and issued mandate on March 21, 2003. See Garcia-Valdez v. State, 840 So.2d 234 (Fla. 2d DCA 2003).

It does not appear that he filed any postconviction proceedings during the two-year period following the issuance of our mandate. Therefore, after March 21, 2005, any rule 3.850 motion attacking Mr. Valdez-Garcia’s convictions would be untimely, unless the motion was based either on newly discovered evidence or on a recent decision of the United States Supreme Court or of the Florida Supreme Court given retroactive application. See Brown v. State, 827 So.2d 1054, 1055 (Fla. 2d DCA 2002).

In March 2006, Mr. Valdez-Garcia filed this petition for habeas corpus in the circuit court of the Thirteenth Judicial Circuit. The petition did not challenge the conditions of his confinement, such as the right to immediate release, but it instead challenged the correctness of his convictions based on issues similar to those raised in his direct appeal. He claimed that his convictions were invalid because he was not competent to stand trial, his trial counsel was ineffective, and his limited ability to speak English prevented him from meaningful participation in the trial. Despite some of these being issues cognizable in a rule 3.850 motion, he did not allege any exception to the two-year timeliness requirement. See Fla. R. Crim. P. 3.850(b). The circuit court dismissed this petition for lack of jurisdiction because Mr. Valdez-Garcia was incarcerated in Zephyr-hills, Florida, in a facility outside the territorial jurisdiction of the Thirteenth Judicial Circuit.

The writ of habeas corpus is an ancient writ with its origins dating as early as the Magna Carta in 1215. See William Blackstone, 3 Commentaries on the Laws of England *133. The modern writ dates to the British Habeas Corpus Act of 1679 and has been consistently used as a method to obtain jurisdiction over a jailor or other person who is illegally detaining a person so that a court may order the release of the person illegally detained. See 28 Fla. Jur. Habeas Corpus and Postconviction Remedies § 1 (2007); Allison v. Baker, 152 Fla. 274, 11 So.2d 578, 579 (1943).

Some of Florida’s oldest laws create the procedures for writs of habeas corpus. Before Florida’s statehood, the Legislative Council of the Territory of Florida enacted directions for the mode of suing and prosecuting the writ. See Act of September 16, 1822, § 1-11. The right is also secured by the United States Constitution and the State of Florida Constitution. U.S. Const, art. I, § 9; art. I, § 13, Fla. Const. In 1879, these statutes were amended to specify that in cases before the circuit court, the petition for writ of habeas corpus “shall be filed with the Clerk of the Circuit Court of the county in which the prisoner is detained.” See ch. 3129, § 8. This provision remains unchanged today as section 79.09, Florida Statutes (2006).

Because the writ is designed to obtain power over the jailor to order the release of the prisoner, it does not function well as a method to review the legal correctness of a criminal judgment. The court or the judge that issued the judgment is not a necessary party to the proceeding and is usually uninvolved in the case. In part because a petition for habeas corpus must be filed with the clerk of the circuit court of the county where the prisoner is detained, that court’s scope of review over the criminal judgment is not a broad review of all collateral issues but a narrow review to determine “whether the court that entered the order was without jurisdiction to do so or whether the order is void or illegal.” See Alachua Reg’l Juvenile Detention Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996).

These limitations help explain why the Florida Supreme Court promulgated rules to collaterally attack a conviction. In the wake of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), many state prisoners belatedly acquired constitutional rights which were not recognized at the time of their conviction. See Roy v. Wainwright, 151 So.2d 825, 826 (1963). At that time, the writ of habeas corpus was the only available method to attack these convictions. Id. The circuit courts in the counties where the prisoners were incarcerated faced a flood of petitions over which they could only exercise a limited scope of review. In response to a recommendation by the Florida Judicial Council, the Florida Supreme Court utilized its rulemaking authority to promulgate Criminal Procedure Rule 1, which is now known as rule 3.850. Id. at 827 (citing art. V, § 3, Fla. Const.). The rule created a better method for collateral review of claims attacking a conviction in the court that tried the criminal case, thus replacing the use of the writ of habeas corpus for most of these types of claims.

Though prisoners filing habeas petitions in the circuit court are subject to the jurisdictional requirement of section 79.09, there is no counterpart to that statute for petitions seeking habeas corpus relief from the district courts of appeal or from the supreme court. Both of these courts have jurisdiction to hear such petitions. Art. V, §§ 3(b)(9), 4(b)(3), Fla. Const. Because the supreme court has statewide jurisdiction, this is not a troublesome issue for that court. However, for the district courts of appeal the absence of such a statute initially created a degree of confusion. In T.O. and Murray v. Regier, 872 So.2d 217 (Fla.2002), the supreme court created rules governing the district courts that are comparable to the policy established in section 79.09. This case law, however, inadvertently contributed to the confusion described in the next paragraph.

In explaining the limited scope of review conducted by a court with jurisdiction over a petition for writ of habeas corpus, the case law has sometimes explained through negative inferences that the circuit court issuing the judgment had a broader scope of review in collateral proceedings challenging the judgment. Over time, this explanation has transformed itself into the apparent recognition of “an exception to this general rule,” suggesting that a petition for writ of habeas corpus could be filed in the circuit in which the judgment was entered as a method to challenge collaterally the criminal judgment on broader grounds. Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003) (citing Sheriff v. Moore, 781 So.2d 1146 (Fla. 1st DCA 2001)); McLevy v. State, 787 So.2d 194 (Fla. 1st DCA 2001); McLeroy v. State, 704 So.2d 151 (Fla. 5th DCA 1997); Leichtman v. Singletary, 674 So.2d 889 (Fla. 4th DCA 1996); see also Frederick v. State, 714 So.2d 1043, 1043 (Fla. 4th DCA 1998) (stating “[hjabeas petitions directed to trial issues must be brought in the circuit court of the county where the trial occurred”).

Some of these cases cite to this court’s opinion in State v. Broom, 523 So.2d 639, 640 (Fla. 2d DCA 1988). We conclude that those courts have misread our opinion in Broom, which was intended to explain the limited role of habeas corpus after the creation of rule 3.850. In Broom, this court discussed the limited topics that appeared still viable for habeas review at that time. We stated:

When Rule 3 states that habeas may still be used if Rule 3 is “inadequate or ineffective” to test the legality of detention, it does not mean in areas in which Rule 3 is applicable (collateral attack of the judgment or sentence). Rather, ha-beas is still viable in areas in which Rule 3 does not apply at all because those matters do not involve a collateral attack of the judgment and sentence, such as: (1) to attack computations of gain time and other determinations of the parole and probation commission, see Lowe v. Fla. Parole & Probation Comm’n, 416 So.2d 470 (Fla. 2d DCA 1982); (2) to test pretrial detention and the denial of pretrial bond or excessive pretrial bond, see State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971); Medina v. Sandstrom, 384 So.2d 927 (Fla. 3d DCA 1980); (3) to determine the right to a delayed appeal, see Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); (4) to challenge extradition, see State v. Cox, 306 So.2d 156 (Fla. 2d DCA 1974); and (5) to challenge the effectiveness of appellate counsel in a previous appeal, see Middleton v. State, 465 So.2d 1218 (Fla. 1985). Rule 3 is not available to collaterally attack the above matters, which do not go to the validity of the judgment and sentence.

Broom, 523 So.2d at 641.

Since 1988, several of the applications of habeas corpus described in Broom have been eliminated or restricted by changes in the law. These changes demonstrate that the writ of habeas corpus is “the great and efficacious writ,” not because it cannot be replaced or supplanted by better procedures, but because it has provided a constitutional remedy to assure the right to seek one’s freedom from detention whenever the law does not otherwise provide an adequate mechanism to obtain relief from illegal detention. Rule 3.850(h) expressly recognizes that the writ remains available for the rare case in which a prisoner has been provided no adequate or effective way to test the legality of his or her “detention” despite the procedures in rule 3.850. This provision, however, does not overrule the jurisdictional language of section 79.09.

We conclude that neither the supreme court nor the legislature has recognized an exception to section 79.09 that would authorize a prisoner to file a petition for a writ of habeas corpus in the court that entered the criminal judgment when the prisoner is housed in another circuit. When such petitions are filed, they are normally either improperly styled efforts to seek postconviction relief challenging the judgment or sentence, or they are challenges to detention filed in the wrong circuit. As such, the trial court should consider whether to treat the petition as seeking the remedy provided by rule 3.850 or whether the matter should be transferred. See art. V, § 2(a), Fla. Const. (requiring that no cause shall be dismissed because an improper remedy has been sought and requiring the supreme court to implement rules to transfer matters filed in the wrong court). Thus, the above-cited case law suggesting an exception to the jurisdictional requirement of section 79.09 invariably seems to resolve the case by properly treating the petition as if it were a motion under rule 3.850. Johnson, 947 So.2d at 1193; Richardson, 918 So.2d at 1001-02; Collins, 859 So.2d at 1246; Frederick, 714 So.2d at 1043; Calloway, 699 So.2d at 849.

In this case, although the circuit court should have treated the petition as if it were a motion seeking relief under rule 3.850, the petition was untimely and alleged no basis for review under rule 3.850 after the expiration of the standard two-year period. There is also no reason to transfer the petition to the circuit in which Mr. Valdez-Gareia is incarcerated because the petition on its face did not allege any ground that could authorize that court to order his release from unlawful detention. Accordingly, we affirm.

Affirmed.

CASANUEVA and SALCINES, JJ., Concur.

      . These territorial statutes became the law of the State of Florida in 1845 by virtue of article XVII, section 1, of the 1838 Florida Constitution.

      . See also Vazquez v. State, 948 So.2d 930, 930 (Fla. 3d DCA 2007); Johnson v. State, 947 So.2d 1192, 1193 (Fla. 3d DCA 2007) (stating defendant required to file petition attacking the validity of judgment in circuit that imposed the sentence) (citing Calloway v. State, 699 So.2d 849, 850 (Fla. 3d DCA 1997)); Vale v. State, 946 So.2d 104, 104 (Fla. 5th DCA 2007) (explaining "jurisdiction for habeas proceedings rests with the trial court that imposed the sentence and rendered the judgment of conviction”); Richardson v. State, 918 So.2d 999, 1001 (Fla. 5th DCA 2006).

      .For example, gain time and other determinations of the parole and probation commission are usually handled administratively by the Department of Corrections and challenged in court by writ of mandamus. See Bush v. State, 945 So.2d 1207, 1210 (Fla. 2006); Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217 (Fla.1998). Belated appeals and ineffective assistance of appellate counsel are now addressed by Florida Rule of Appellate Procedure 9.141(c). See Sims v. State, 876 So.2d 561 (Fla.2004). Despite the creation of this rule, many petitions for belated appeals are styled under the rubric of habeas corpus instead of filed as rule 9.141(c) motions. See, e.g., Harris v. State, 911 So.2d 221 (Fla. 2d DCA 2005).

      . William Blackstone, 3 Commentaries on the Laws of England *131.

      . Given the flexibility and the long history of the writ of habeas corpus, we cannot rule out the possibility that the writ could have a proper postconviction use in the court that entered the judgment and conviction. At this point, however, we are unable to provide an example of such a circumstance. Perhaps, if there were an issue of constitutional dimension that could be raised only after the expiration of the two-year period and the rules providing for motions under rule 3.850 beyond the normal two-year period did not permit a review of that important issue, then a petition for habe-as corpus in the court that entered the judgment and conviction might be appropriate.

      . See also Fla. R. Civ. P. 1.060(b) (allowing for transfer of actions filed in the wrong county); Fla. R. App. P. 9.040(b)(1), (c) (providing for transfer of proceeding commenced in an inappropriate court to an appropriate court and for treating cause as if a proper remedy had been sought when party seeks an improper remedy); Bush v. State, 945 So.2d 1207, 1214 (Fla.2006) (stating that transfer, rather than dismissal, is the preferred remedy for improper venue).

      . By treating the habeas petition as a rule 3.850 motion, the trial court conserves judicial resources and promotes efficiency by disposing of the claims initially. Otherwise, many petitioners will file the same claims in a properly titled motion, expending more of the court’s time and resources. Moreover, an appeal of an unsuccessful petition for writ of habeas corpus aimed at a conviction or sentence and filed in the county of conviction typically requires full briefing and the compilation of a complete record. This is not only more expensive for both the trial court and the appellate court, but it is also a more time-consuming appellate proceeding.


author: PER CURIAM. ALTENBERND, Judge,

text:
    John KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5319.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
   PER CURIAM.

Affirmed. See Lyell v. State, 872 So.2d 447 (Fla. 2d DCA 2004); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003).

WHATLEY and CASANUEVA, JJ., Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in the per curiam opinion. However, I write to point out a possible problem arising from this court’s previous review in case number 2D04-3509 of another of Mr. Knight’s convictions, circuit court case number CRC94-09266CFANO.

In that case, Mr. Knight was convicted of attempted second-degree murder. The jury’s verdict stated: “The defendant is Guilty of Attempted Murder in the Second Degree, a lesser included offense.” On the basis of an allegation in the information of the use of a firearm, the trial court reclassified the conviction from a second-degree felony to a firsfidegree felony and imposed a guidelines upward departure sentence of thirty years in prison along with a firearm mandatory minimum sentence of three years in prison.

In 2000, Mr. Knight challenged his sentence by a postconviction motion claiming that, on account of the jury not making a sufficient finding of his use of a firearm, his conviction was illegally reclassified from a second-degree to a first-degree felony and the firearm mandatory minimum sentence was illegally imposed.

The State conceded that the firearm mandatory minimum was illegal due to an insufficient jury finding, and the trial court struck it. However, the State argued that the jury verdict was sufficient to support the reclassification relying upon Miller v. State, 460 So.2d 373 (Fla.1984), and Luttrell v. State, 513 So.2d 1298 (Fla. 2d DCA 1987).

Unfortunately, the State overlooked the later Florida Supreme Court opinion in State v. Tripp, 642 So.2d 728 (Fla.1994). Tripp held that a jury verdict which “found Tripp guilty of ‘charges made against him in the Information’ ” was insufficient to allow reclassification of attempted first-degree murder from a first-degree felony to a life felony, even though “the information alleged that Tripp used a weapon during the commission of attempted first-degree murder.” Tripp, 642 So.2d at 730. In Tucker v. State, 726 So.2d 768, 772 (Fla.1999), the court reaffirmed its holding in Tripp.

Even though Mr. Knight committed his offense before the Tripp opinion issued on July 7, 1994, he was sentenced on April 17, 1995, and his conviction and sentence did not become final until August 21, 1996. Therefore, Tripp is controlling precedent. See Robinson v. State, 704 So.2d 161 (Fla. 2d DCA 1997) (en banc).

Under Tucker and Tripp, it would appear that Mr. Knight’s conviction should not have been reclassified from a second-degree to a first-degree felony and his thirty-year prison sentence exceeds the statutory maximum sentence of fifteen years in prison for a second-degree felony.

In 2004, Mr. Knight challenged his sentence by a motion to correct an illegal sentence again claiming that, on account of the jury not making a sufficient finding of his use of a firearm, his conviction was illegally reclassified from a second-degree to a first-degree felony. The trial court determined that this claim was procedurally barred as successive. On appeal, this court affirmed without opinion and apparently without realizing the illegality of the sentence.

However, this proceeding is not a challenge to the sentence for the attempted second-degree murder conviction. Because the term of court in which the decision in 2D04-3509 was issued has expired, this court has no jurisdiction to reopen that case. See State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So.2d 980 (Fla.1981).

I am inclined to believe that Mr. Knight’s sentence is facially illegal and constitutes the type of manifest injustice that the trial court could and should review if Mr. Knight files with the circuit court another motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) challenging the sentence imposed in circuit court case number CRC94-09266CFANO. See State v. McBride, 848 So.2d 287 (Fla.2003); Cillo v. State, 913 So.2d 1233 (Fla. 2d DCA 2005); Lawton v. State, 731 So.2d 60 (Fla. 2d DCA 1999). Correction of that sentence may entitle Mr. Knight to an immediate release from prison.


author: POLSTON, J.

text:
    SEAY OUTDOOR ADVERTISING, INC., Appellant, v. Claude Mark LOCKLIN, Appellee.
    No. 1D07-2187.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.

      Frank A. Baker, Marianna, for Appellant.
    Dan Stewart, Pace, for Appellee.
   POLSTON, J.

Appellant Seay Outdoor Advertising, Inc. argues that the trial court committed reversible error by granting appellee Claude Mark Locklin’s motion, filed pursuant to Florida Rule of Civil Procedure 1.540(b), to vacate the default final judgment entered against him. The trial court entered the default final judgment by granting Seay’s motion to impose sanctions against Locklin for completely failing to respond to discovery, and by striking Locklin’s pleadings. We reverse because Locklin failed to demonstrate due diligence in seeking to vacate the final judgment entered against him.

I. BACKGROUND

The underlying case on the merits is an action for breach of contract originally filed in 2000 by Seay against Locklin (Case No. 00-1-56-CA), and then consolidated with an action filed by Locklin’s corporation, Skyline Outdoor Communications, Inc., against Seay’s principal, Jim Harkins (Case No. 01-1272-CA).

Locklin was originally represented in this action by attorney Charles P. Hoskin. On March 19, 2008, the trial court granted Mr. Hoskin leave to withdraw, on his motion indicating that he had been unable to contact Locklin for several months and was therefore unable to proceed further in the case. In the Order Permitting Withdrawal of Attorney, Locklin and Skyline were afforded 30 days within which to retain substitute counsel, after which time all pleadings were to be served on Locklin and Skyline at Locklin’s address, 5664 Du-pree Road, Milton, FL, 32570. Locklin and Skyline did not retain substitute counsel, as directed by the trial court, at any time prior to entry of judgment.

In 2001, Seay served interrogatories and a request to produce documents on Lock-lin, but no response was made. Seay served a motion to compel discovery and notice of hearing on June 28, 2005 (about 12 days prior to the landfall of Hurricane Dennis). That motion was sent to Locklin at 5664 Dupree Road, Milton, FL, 32570, in accordance with the Order Permitting Withdrawal of Counsel. The regular mail service of the motion and notice were not returned as undelivered to Seay’s counsel. Locklin did not respond to the motion and, as a result, the trial court entered an order compelling discovery on August 22, 2005. That order was also served on Locklin at his record address, 5664 Dupree Road. The order stated in relevant part:

1. The defendant LOCKLIN is hereby ordered and directed to furnish full and complete response to the interrogatories served June 5, 2001, said responses to be received by plaintiffs counsel on or before September 12, 2005. In the event that the defendant LOCKLIN shall fail to fully comply with the provisions of this order, this Court may, upon due motion, notice and hearing, impose further sanctions, including, but not limited to, the striking of defendant’s pleadings and the entry of default judgment against defendant.

(Emphasis added).

When Locklin did not respond to the Order On Plaintiffs Motion To Compel Discovery, Seay then served its Motion To Impose Sanctions And Notice Of Hearing on September 14, 2005, at Locklin’s address of record, 5664 Dupree Road. At the hearing on that motion, Locklin did not appear and, based on the matters presented, the trial court imposed sanctions, including striking Locklin’s pleadings and entering default judgment as warned in its earlier order. The Final Judgment, dated and filed October 24, 2005, was sent to Locklin at the same address, 5664 Dupree Road.

More than 10 weeks later, on January 10, 2006, Locklin filed a motion to vacate the final judgment under Fla. R. Civ. P. 1.540(b). In that motion, Locklin asserted that the judgment should be set aside because of excusable neglect and, alternatively, that the judgment was void.

At the hearing on Locklin’s motion for relief, before a different trial judge, Lock-lin testified that his home at 5664 Dupree Road was damaged by Hurricane Dennis (which hit the western Panhandle on July 10, 2005) and that, as a result of that damage, he moved to a rental property on Mayberry Lane in Milton, 20 miles away. Because of this change of address, Locklin stated, under oath, that he did not receive any of the documents listed in paragraph 6 of his motion for relief. Among the documents listed in Locklin’s paragraph 6 is Seay’s initial motion to compel discovery served June 28, 2005, about 12 days before Hurricane Dennis’ landfall. Locklin offered no explanation as to why he didn’t get Seay’s initial discovery motion and notice of hearing, which were directed to 5664 Dupree Road, at a time when Locklin was still living there. In any case, Lock-lin’s testimony and position at the hearing was that he did not receive notice of any of the matters under discussion.

On cross-examination, Locklin acknowledged that he did receive a copy of the final judgment rendered in October 2005, which was sent to Locklin at 5664 Dupree Road. Locklin also admitted actual knowledge of the withdrawal of his prior attorney (Mr. Hoskin) and that he had received a copy of the March 2003 Order Permitting Withdrawal at his 5664 Dupree residence. Although the Order Permitting Withdrawal gave Locklin 30 days to retain substitute counsel, Locklin did not do so. In addition, although Locklin was aware that the Order Permitting Withdrawal listed 5664 Dupree Road as the address for service of pleadings, Locklin did not at any time file a change of address with the trial court.

At the hearing, Seay asserted that, where a movant fails to comply with an order to obtain substitute counsel, fails to provide a proper address other than the address of record in the case, and fails to pursue its own claim for an extended period of time, then the movant may not rely upon “excusable neglect”. Moreover, Seay argued that Locklin’s delay in filing his motion for relief (10 weeks) demonstrated a lack of due diligence.

In its Amended Order, the trial court notes that the Order Permitting Withdrawal dated March 2003 allows for service of pleadings at 5664 Dupree and that it was this address that sustained damage. The trial court held:

Defendant requests the Court to set aside the order imposing sanctions and default final judgment on two separate grounds: (1) mistakes, inadvertence, or excusable neglect, and (2) that the judgment is void. A motion to vacate judgment must be filed within one year if based on mistake or excusable neglect and within a reasonable time if the judgment is asserted to be void. In the instant case the motion to vacate was filed within ten (10) weeks. Florida’s long standing public policy favors adjudication of lawsuits on the merits. Reasonable doubt as to this question is resolved in favor of allowing a trial upon the merits. The file reflects that the defendant filed an answer and affirmative defenses to plaintiffs complaint. The Court is persuaded that notices were sent and has doubts as whether the defendant received the notices. Accordingly, the court will allow this case to be resolved on the merits based on excusable neglect.

(Emphasis in original).

Seay’s notice of appeal from the original trial court order dated April 5, 2007, and from the Amended Order rendered April 9, 2007, was timely filed on April 18, 2007.

II. DUE DILIGENCE

Locklin’s 1.540(b)(1) motion to vacate the final judgment because of “mistake, inadvertence, surprise, or excusable neglect” should be granted “on a showing of excusable neglect, due diligence in pursuing relief, and the assertion of a meritorious defense.” See Rice v. James, 740 So.2d 7 (Fla. 1st DCA 1999) (emphasis added).

We hold that Locklin failed to demonstrate due diligence. See Hepburn v. All Am. Gen. Constr. Corp., 954 So.2d 1250 (Fla. 4th DCA 2007) (holding that setting aside a default judgment was reversible error because a four-month delay between the time All American found out about the default judgment and the motion to vacate was not an exercise of due diligence that precluded the granting of a motion to vacate); Masot v. Hoteles Doral, C.A., 645 So.2d 184, 185 (Fla. 3d DCA 1994) (reversing the order vacating the final summary judgment, holding that Hoteles did not make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect because it failed to obey a court’s order to secure new counsel, to provide a sufficient current address, and to diligently participate in the case); John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385-86 (Fla. 4th DCA 1980) (stating that “[t]he law requires certain diligence of those subject to it, and this diligence cannot be lightly excused;” holding that the failure of a spouse to understand and act upon service of process was not excusable neglect).

Locklin testified that he received the final judgment but gave no reason for the ten-week delay in filing his motion to vacate, and this issue was not addressed by the trial court. In Lazcar Int’l, Inc. v. Caraballo, 957 So.2d 1191 (Fla. 3d DCA 2007) (reversing order granting a motion to vacate a final default judgment with directions to reinstate the judgment), the court held that Caraballo failed to present any evidence to explain her six-week delay in filing a motion to vacate after learning of the default judgment. Id. at 1192. The court ruled:

Absent competent substantial evidence of some exceptional circumstance explaining the delay, Westinghouse Credit Corp., 356 So.2d at 1330, a six-week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law. See, e.g., Trinka v. Struna, 913 So.2d 626, 628 (Fla. 4th DCA 2005)(find-ing “[t]hat defendant’s attorney ignored his duty to act with all due diligence” where “more than a month passed between the discovery of the default and the entry of the final judgment without any attempt to vacate the default”); Fischer v. Barnett Bank of S. Fla., N.A., 511 So.2d 1087, 1088 (Fla. 3d DCA 1987)(finding a “five week delay by the defendants [in filing motion to vacate] entirely inexcusable”); Bayview Tower Condo. Ass’n v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985)(finding a delay of one month “showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below”); see also Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 304 (Fla. 2d DCA 2004)(concluding “that the seven-week delay here was unreasonable”). Of course, here, there is no competent evidence of any circumstance, exceptional or not, explaining the delay. However, even if the unsworn argument of defense counsel at the hearing on the motion to vacate is considered, the order under review still fails. We find nothing said by defense counsel to be graspable by Caraballo as an “exceptional circumstance” to explain the delay.

Id. at 1193. Because no reason for the ten-week delay was given, no due diligence was shown.

III. VOID

Locklin also makes a tipsy coachman argument that the trial court should have vacated the final judgment under Florida Rule of Civil Procedure 1.540(b)(4) (permitting the trial court to grant relief from a final judgment if the party seeking relief can demonstrate “that the judgment or decree is void”). Locklin has asserted two reasons that the judgment was void: (i) he did not receive notice of the hearing that resulted in the judgment, citing Greisel v. Gregg, 733 So.2d 1119 (Fla. 5th DCA 1999), and (ii) section 607.1622(8), Florida Statutes, prohibits a corporation that fails to file an annual report to maintain or defend any action until all fees and taxes due are paid.

First, we reject Locklin’s argument that he did not receive notice of the hearing which resulted in the judgment. In Greis-el, cited in support for his position, the court ruled that, “[a] final judgment is void where the notice of hearing that resulted in the judgment was sent to an incorrect address and, as a result, the defendant failed to receive notice.” 733 So.2d at 1121 (emphasis in original). Nonetheless, Greisel is distinguishable from the instant case.

In this case, the undisputed facts show appellant sent all pleadings, including the notice of hearing, to appellee'at his last known address, 5664 Dupree Road, as ordered by the trial court. Between the entry of the Order Permitting Withdrawal Of Counsel on March 20, 2003, and the filing of his motion for relief from the judgment on January 10, 2006, Locklin did not retain substitute counsel (as directed by the trial court), did not file or serve any notice of change of address, and took no action to advance the cause, either in the defense of Seay’s case against him or his consolidated case, in which his company Skyline was the claimant. It was Locklin’s obligation to notify the court if he moved from that address. Accordingly, Seay did not send notice to an incorrect address, as in Greisel, and the final judgment is not void for lack of notice.

Second, we agree with the trial court’s rejection of Locklin’s statutory argument relating to the administrative dissolution of Seay. The trial court’s order stated:

The Court has reviewed Florida Statutes 607.1421 and 607.1622 and the case law. The Court concludes that an administratively dissolved corporation may maintain and defend a claim that accrued prior to administrative dissolution. Accordingly, plaintiff may maintain and defend this action.

Section 607.1421(3), Florida Statutes, states that administratively dissolved corporations cannot carry on business, but it may wind up and liquidate its business and affairs. See also section 607.1405(2)(e), Florida Statutes (stating that the “[djisso-lution of a corporation does not ... [prevent commencement of a proceeding by or against the corporation in its corporate name”).

Construing the statutes together, the Second District, in PBF of Fort Myers, Inc. v. D & K P’ship, 890 So.2d 384 (Fla. 2d DCA 2004) (reversing the trial court’s order dismissing the corporation’s counterclaim), held that an administratively dissolved corporation could continue a cause of action if the action was initiated before the corporation’s dissolution. The court noted, “if a corporation was- administratively dissolved for failing to file its annual report, arguably ‘section 607.1622(8) would preclude an administratively dissolved corporation’s suit on a cause of action accruing after its dissolution.’ ” Id. at 386 (citing Levine v. Levine, 734 So.2d 1191, 1197 (Fla. 2d DCA 1999)) (emphasis added). But the court noted that the corporation filed its counterclaim two years before its administrative dissolution. Id. at 385. Accordingly, the court noted, “[o]ur statement in Levine supports reversal here because the cause of action accrued before the dissolution of the corporation.” Id. at 386.

Similarly, in the instant case, Seay filed its breach of contract action against Lock-lin before it was administratively dissolved. The complaint was filed in October 2000, and Seay was administratively dissolved in September 2003, approximately three years later. Because Seay’s cause of action against Locklin was filed before its administrative dissolution, the cause of action may continue after the dissolution, as ruled by the trial court. Therefore, the default final judgment is not void because of Seay’s administrative dissolution.

Conclusion

Because Locklin failed to demonstrate due diligence in seeking to vacate the final judgment entered against him, we reverse with directions for the trial court to reinstate the judgment.

REVERSED and REMANDED with directions.

WOLF and PADOVANO, JJ., concur.

      . We need not address the applicable year of statutes because no change has occurred in them during the relevant time frames in this case.


author: PALMER, C.J. GRIFFIN, J.,

text:
    MARION COUNTY, Florida, et al., Appellants, v. Michelle KIRK, Appellee.
    No. 5D06-3701.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.

      Thomas L. Wright, County Attorney, and Thomas D. MacNamara, Chief Assistant County Attorney, Ocala, for Appellant Marion County.
    Michael P. Donaldson and Christine R. Davis of Carlton Fields, P.A., Tallahassee, and Michael E. Dean of Dean & Dean, LLP, Ocala, for Appellant C & K Investments.
    No Appearance for Appellee.
   PALMER, C.J.

Marion County and its Board of County Commissioners (BCC) appeal the trial court’s order granting appellee Michelle Kirk’s petition for a writ of mandamus, thereby compelling BCC to comply with the notice requirements of its land development code and reconsider its grant of a special use permit. Determining that Kirk was not legally entitled to receive mandamus relief in this matter, we reverse.

BCC approved an application for a special use permit which allowed C & K Investment, Inc., to develop and operate a sand mine. Kirk responded by filing a petition in the circuit court seeking a writ of mandamus against BCC. The petition alleged that BCC failed to comply with the mailing requirements related to the proposed special use permit with respect to at least four adjacent landowners. The petition requested the circuit court to issue a writ of mandamus requiring BCC to comply with its notice rules and to reconsider the special use permit application.

The trial court conducted an evidentiary hearing on Kirk’s petition. During the hearing, the zoning director for Marion County testified that special use permit applications are processed consistent with the requirements of the Land Development Code. The Land Development Code provides for and defines due public notice as follows:

Publication of notice shall be given at least ten days prior to said meeting in a newspaper of general circulation in the County. Due public notice for public hearings of the Zoning Commission and the Board of County Commissioners for rezoning of property shall include mailed written notice to all owners of property within 300 feet of the boundaries of the property subject to rezoning whose address is know by reference to the latest ad valorem tax records and to all parties of interest who timely request such notice in writing to the Zoning Director.

The zoning director explained that a staff member maps the property owners who live within 300 feet of the proposed projects and the zoning department then creates a mailing list for those owners. The zoning director’s office thereafter prepares the notices for placement in the U.S. mail. The Municipal Service Taxing Unit (MSTU) handles all of the mailing for the county and mails the notices to those persons on the mailing address list. The director testified that his office complied with these procedures and, to the best of his knowledge, the notices were mailed.

Upon review,. the trial court granted Kirk’s mandamus petition concluding that, although the mapping specialist testified that she delivered the notices to the MSTU, there was no testimony that it was ordinary and usual for the MSTU employees to mail out the notices. The trial court did note that the zoning director testified that he and the employees of his office did their job on a timely basis and in the ordinary scope of their employment, and that they followed the rules that bind them.

Marion County, joined by C & K Investment, filed a timely motion for rehearing and attached affidavits prepared by the director of MSTU and the deputy clerk of the circuit court to the motion. In his affidavit, the director averred that MSTU is responsible for all mailings for nine county departments, including the zoning department, and that all notices to surrounding property owners with respect to the public hearing at issue were mailed. The deputy clerk averred that she was present at that public hearing, that a petition opposing the proposed special permit was presented at that meeting, and that the second signatory on the petition was Kirk. The petition listed, on its face, the time and place of the public meeting (hence showing that Kirk had actual notice of the meeting). The trial court refused to consider the affidavits and denied the motion for rehearing. This appeal followed.

Mandamus is a discretionary writ, awarded, not as a matter of right, but in the exercise of sound judicial discretion. Therefore, this court reviews the trial court’s order for an abuse of discretion. Wright v. Frankel, 32 Fla. L. Weekly D97, 2006 WL 3780671 (Fla. 4th DCA Dec.27, 2006). Here, the trial court abused its discretion in granting Kirk mandamus relief.

Mandamus is an inappropriate remedy under the facts presented in this ease because rulings of a board acting in its quasi-judicial capacity are subject to review by certiorari. See Bd. of County Comm’rs. of Brevard County v. Snyder; 627 So.2d 469, 474 (Fla.1993). When a matter is open to review by certiorari, mandamus is an inappropriate remedy. Mellon v. Cannon, 482 So.2d 604, 604 (Fla. 5th DCA 1986). Accordingly, we reverse the trial court’s grant of the writ of mandamus and remand for further proceedings consistent with this opinion.

In closing, we note that, even if the mandamus petition had not been procedurally improper, it would still have been erroneously entered since the trial court improperly disregarded the presumption of routine practice in mailing notices prepared by the county and delivered to MSTU for mailing. See § 90.406, Fla. Stat. (2006). Furthermore, the grant of mandamus relief was not proper because the affidavits attached to Marion County’s motion for rehearing conclusively established that the notices were properly mailed, thereby curing any deficiencies the trial court discerned. Generally, a court presented with evidence on timely rehearing that cures the basis for its earlier ruling abuses its discretion in entering an order denying rehearing. See Huet v. Tromp, 912 So.2d 336 (Fla. 5th DCA 2005)(citing Nat’l Enter., Inc. v. Martin, 679 So.2d 331 (Fla. 4th DCA 1996)). See also Crouch v. Crouch, 898 So.2d 177, 184 (Fla. 5th DCA 2005).

REVERSED AND REMANDED.

SAWAYA, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent because the trial court did not abuse its discretion. At the scheduled hearing on the petition on August 2, 2006, the County represented to the court that it was prepared to go forward with the hearing to prove that notification as required by the County Code was given to all property owners within 300 feet. The County offered witnesses to show how the 300 feet was calculated, identification of the property owners in that 300 feet and the procedure followed for notification of all property owners, including Petitioner, Kirk. These witnesses all testified, however, that once the notices are prepared, they send them to another department, the Municipal Service Taxing Unit, which “does all the mailing for our County.” There was no evidence offered of what happens to notices after they are sent to the mailing department. The trial court reviewed all the evidence at the close of the hearing and then explained his ruling:

THE COURT: Now, what was lacking in the testimony? What was lacking was that in the ordinary course and scope of doing these things, that it was ordinary and usual that the MSTU people always mailed these things out. You could sort of rely on that, sort of like you tacitly understand, when you get into your car and there’s gas in it and you turn the key on and the battery is working, that the doggone thing is going to crank up and go.
That was not present here. We got right up to the MSTU, and then the evidence stopped. And for that reason, I grant the Writ of Mandamus and require that there be a renotification.

This was a proper decision for the judge to make based on the evidence presented.

The County then filed its motion for rehearing in which it claimed that due to “irregularities” in the mandamus proceeding on the part of the trial court, such as the failure to issue an order to show cause, the County had been “unprepared” at the hearing. The trial court rejected this argument. The court further expressly found that the County’s lack of preparation was not grounds to change the decision on rehearing because the County failed to show it had exercised due diligence in preparing for the hearing. These are findings appropriate for the court to make and based on these findings, there could be no abuse of discretion in denying the motion for rehearing.

Finally, the question whether this was properly a mandamus proceeding does not make this decision reversible. The County did have a mandatory, ministerial duty to provide notice to all property owners within 300 feet and to conduct a hearing only after proper notice was given. Since the assertedly improperly noticed hearing had already been conducted, arguably another writ, such as prohibition, would have been more apt. One thing is for sure, however, this did not have to be brought as a certio-rari review of the County’s approval of the special use permit. Cf. Bhoola v. City of St. Augustine Beach, 588 So.2d 666 (Fla. 5th DCA 1991). Consistent with the provisions of Florida Rule of Civil Procedure 1.630 and Florida Rule of Appellate Procedure 9.040(e), the correct denomination of the writ is not essential. Courts should, and indeed, this court generally does, treat the application for any extraordinary writ as what it ought to be.

It does appear that a more correct result would have been reached if the trial judge had exercised his discretion to grant rehearing and had taken further evidence on the County’s procedure for mailing of notice and Ms. Kirk’s actual knowledge of the hearing, but this is a decision allocated to the trial court, not to us.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Lorraine GRAYSON, Appellee.
    No. 5D06-3131.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellant.
    Mark S. Blechman of Mark S. Blech-man, P.A., Orlando, for Appellee.
   GRIFFIN, J.

The State appeals an order granting Appellee, Lorraine Grayson’s [“Grayson”] motion to dismiss an information. We reverse.

The State filed an information against Grayson, alleging that on October 14, 2004, Grayson “knowingly and willfully” made a false report of child abuse in violation of sections 39.01(27) and 39.205(6), Florida Statutes (2004). Grayson moved to dismiss the information on the ground that the Department of Children and Family Services [“DCF”] had revealed her identity in violation of her statutory right to confidentiality. Following an evidentiary hearing, the trial court entered an order dismissing the information. Grayson, a Florida Highway Patrol trooper, conducted a traffic stop of a vehicle occupied by Cynthia Shattuck and her two minor children on September 16, 2004. Ms. Shat-tuck was issued a citation for speeding. According to Grayson’s notes, Shattuck disputed that she was speeding and told Grayson that she was on her way to pick up a foster child. As soon as Ms. Shattuck pulled away from the area of the traffic stop, she contacted the Florida Highway Patrol to file a complaint against Grayson for rude and discourteous behavior. The complaint was assigned to an investigating sergeant to conduct an inquiry. The sergeant met with Grayson on October 11, 2004, to discuss the complaint. The complaint was ultimately classified as “not sustained.”

On October 12, 2004, the next day, Gray-son contacted DCF’s abuse hotline and made a complaint against Ms. Shattuck, referencing the date of the traffic stop. Grayson alleged that Ms. Shattuck was a foster parent and the children were in danger. Specifically, Grayson stated: “There is a concern for the children in the care of the foster mother, Cynthia Shat-tuck. The mother was stopped for speeding and she was yelling and screaming at the officer in the presence of the children. As a result, the female child, approximately twelve years old, who was in the front seat, appeared to be “very scared and fragile.” In the call to the hot line, Gray-son did not identify herself.

DCF assigned Investigator Lawrence Palmer to investigate the abuse allegation; he testified at the evidentiary hearing about his visit to the Shattuck residence and interview with the family. He did not disclose Grayson’s identity as the reporter of abuse to the Shattucks. He did not know who made the report. Investigator Palmer testified that he “interviewed them in regards to the report that I received.” He first determined that the children were not foster children. Then he addressed the particular allegations of the report by reading to Ms. Shattuck directly from the hotline abuse report. He inquired about the events surrounding the traffic stop and requested to see the citation Ms. Shattuck was issued. He testified that he wanted to cheek for any correlation between the report and the citation, especially the dates. He also said he always gets all the physical evidence he can. Ultimately, DCF concluded their investigation, finding “no credible evidence” existed to support the abuse complaint. Immediately after Investigator Palmer left the Shattuck residence, Ms. Shattuck filed a complaint against Grayson for filing a false abuse report.

At issue is whether it was improper for Investigator Palmer to have inquired into the details of the traffic stop if doing so disclosed Grayson’s identity. The State contends that, given the nature of the abuse allegations in the hot line abuse report, it was inevitable that when Investigator Palmer asked Ms. Shattuck about the traffic stop, Ms. Shattuck would be able to figure out who had called the hotline. The State contends alternatively that even if Investigator Palmer unlawfully disclosed Grayson’s identity, dismissal of the criminal charge for filing a false report, thereby insulating Greyson from prosecution, was not an appropriate or available remedy. See Simmons v. State, 887 So.2d 1288, 1285 (Fla.2004).

The trial court concluded that, because Investigator Palmer’s stated purpose for the investigation was to determine whether the children were in a foster home and whether the children were in danger on the date of the investigation, Investigator Palmer’s inquiries into the traffic stop and his request for a copy of the citation issued by Grayson were “unnecessary.” By- “unnecessarily” asking questions about the contents of the abuse report and by asking about a citation, Investigator Palmer “disclosed” Grayson’s identity in violation of section 39.202(5). The court found that an information based on a violation of section 39.202(5) is “invalid and must be dismissed.”

The problem in this case arises from the competing, considerations contained in Part II (Reporting Child Abuse) and Part III (Protective Investigations) of Chapter 39. On the one hand, Chapter 39 contains several provisions designed to encourage persons who suspect abuse to report it, mainly by offering anonymity and confidentiality. On the other hand, the prompt, vigorous and skillful investigation of reports is mandated. The dilemma is how to conduct an effective investigation of an abuse report without revealing information that might allow the accused .abuser to guess who may have made the report.

Several sections of Chapter 39 are relevant. Section 39.202(1), Florida Statutes (2004), provides that all calls to' the central abuse hotline are confidential, but after a person is determined to have made a false report, that person is no longer entitled to confidentiality. See also §§ 39.205(5), 206(9), Fla. Stat. (2004). Section 39.202(5) provides for limited release of the name of the person reporting the abuse to certain department employees and law enforcement. Section 39.301(5)(a)2, Florida Statutes (2004), requires a child protective investigator to inform any subject of an investigation of the purpose of the investigation. Sections 39.202(8) and 39.205(3) make it a second-degree misdemeanor to knowingly and willfully disclose confidential information from the abuse hotline 'to an unauthorized person, while section 39.205(6) provides that a person who knowingly and willfully makes a false report of child abuse is guilty of a third-degree felony. Section 39.01(27) defines “false report” as “a report of abuse, neglect, or abandonment of a child to the central abuse hotline which report is ‘maliciously made’ for specified purposes such as harassment or acquiring custody of a child.” The burden is on DCF to determine if a false report has been made. See § 39.205(4) & (5), Fla. Stat. (2004). If DCF determines that a report is false, then it refers the report to law enforcement.

Common sense dictates that an investigator, must be able to disclose enough information to allow an adequate investigation. Chapter 39 requires the accused abuser to be told the “purpose of the investigation” and it forbids revelation of the “name” of the reporter, but it does not fill in the interstices. Investigator Palmer testified that people being investigated by DCF often figure out who called in the report based on the allegations of abuse. When Grayson called the abuse hotline, she said:

“[TJhere is a concern for the children in the care of the foster mother, Cynthia Shattuck. The mother was stopped for speeding and she was yelling and screaming at the officer in the presence of the children. As a result, the female child, approximately 12 years old, who was in the front seat, appeared to be very scared and fragile.

It is hard to imagine how this event could be investigated without the subject figuring out that the person who reported the abuse was the only other adult present by the side of the road during the traffic stop. The trial court sidestepped this issue by seizing on deposition testimony of Investigator Palmer that he was concerned with the children’s well-being at the time of the investigation, presumably suggesting that Investigator Palmer had no business mentioning the abuse report at all.

The trial court suggested that the case of State v. White, 867 So.2d 594 (Fla. 2d DCA 2004), authorized dismissal of the information in this case. In White, the State appealed an order suppressing evidence in a prosecution for making a false report of child abuse. The State had filed an information against White, alleging a knowing, willful, and malicious making of a false report of child abuse in violation of section 39.205(6), Florida Statutes. White had made an anonymous call to DCF’s central abuse hotline, which DCF investigated and determined to be unfounded. Afterward, the father contacted the DCF investigator to find out who had made the report, and the investigator informed the father that he could not disclose that information.

After the investigator refused to give the father any information about the caller, the father went to the St. Petersburg Police Department. At the father’s urging to prosecute, the detective obtained an audiotape of the hotline call from DCF. He played the tape for the father and daughter so that they might identify the voice. They identified White as the caller, the police confronted him with this, information, and she admitted that she made the call. When White was charged, she filed a motion to suppress,- alleging that DCF and the detective had acted illegally and had violated section 39.202(4) by making available an audiotape of her child abuse hotline call to the subjects of the abuse report for the purpose of identifying her as the caller. The trial court entered an order suppressing the audiotape of the hotline call, any transcript of the call, the voice identification of White as the caller and statements that White made to the police after she was questioned as a result of the identification made by the subjects of the report.

The Second District affirmed, agreeing with the lower court that law enforcement was prohibited from publishing a copy of the anonymous hotline call to the father and daughter for the purpose of identifying the caller. Although the detective did not disclose the name of the caller, the Second District concluded that disclosure of the audiotape of the caller’s voice was tantamount to disclosing the caller’s name. The White court pointed out that the detective’s stated reason for playing the tape for the father and daughter was to determine the identity of the caller. For the reasons that follow, we conclude that the White case neither required nor authorized the order dismissing this case.

In White, the report of abuse had already been investigated and deemed to be unfounded. The investigation was undertaken by the police to determine the name of the alleged false reporter. The Second District Court of Appeal concluded, under those circumstances, that it was preferable to frustrate a criminal investigation for a false report of child abuse than to chill abuse reports by allowing the criminal investigator to disclose the identity of the caller to the alleged abuser in order to obtain the caller’s name. That is not what we have in this case. This was an inquiry by DCF into the question whether a child had been abused or was at risk, so different competing values are at stake. Frustration of an investigation undertaken to uncover a false child abuse report is very different from frustration of the investigation of child abuse. White sensibly says that we should not discourage reports of abuse by condoning disclosures of the reporter’s identity in order to punish false reports, but we also must not so constrain investigations of abuse that investigators are unable to assess whether the child abuse reported to the hotline did, in fact, occur. An investigator who knows he risks a criminal prosecution if he reveals information to the alleged abuser that allows the abuser to figure out the reporter’s identity is unlikely to conduct a very productive investigation. In this case, it was the disclosure of facts during investigation of the alleged abuse, not a tape recording of the reporter’s voice in order to identify a false reporter, that allowed the subject to surmise the identity of the reporter. Under the circumstances of this case, we conclude that the DCF investigator did not unlawfully disclose Grayson’s identity.

We are also dubious about the White court’s implicit conclusion that disclosure of the identity of a person under investigation for a false report of child abuse could result in preventing prosecution of the false reporter. Unlike cases in other contexts where an exclusionary rule or dismissal of charges based on prosecutorial misconduct is applied in order to deter police or prosecutorial misconduct, in this instance, the Legislature has already acted to fashion a deterrent to disclosure of the abuse reporter’s identity by making disclosure a criminal offense. The Legislature’s remedy for violating the confidentiality of the reporter of abuse is far more direct and effective than dismissal of the prosecution of the false reporter.

REVERSED and REMANDED.

TORPY, J., and GRAHAM, R.S., Associate Judge, concur.

      . See § 39.201(l)(b)6„ Fla. Stat. (2006) (Law enforcement is required to provide their names to the hotline staff).

      . We confess it was disconcerting to hear that the abuse reports are read verbatim to suspected abusers and that, according to Investigator Palmer, seventy-five to eighty percent of suspects figure out from the investigation who made the report. Investigator Palmer was not a very experienced investigator, however, and his testimony may not be accurate. The record is devoid of any rules, policies or procedures that DCF presumably has developed to address strategies for preserving the anonymity of the abuse reporter while performing a thorough investigation of hotline tips.

      . We have taken note of the fact that the Legislature has made disclosure of confidential information a misdemeanor but has made it a felony to falsely report child abuse. See § 39.202(8), Fla. Stat. (2006).


author: EVANDER, J.

text:
    T.C.E., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-702.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

T.C.E. entered a no contest plea to the charges of robbery, fleeing or attempting to elude an officer, and battery. The sworn police report recited that T.C.E. had entered a Kangaroo Express convenience store. He gave the cashier a bag of chips and $1.00. When the cashier opened the register drawer, T.C.E. reached across the counter and took money from the drawer. He also struck the cashier in the chest and slammed her wrist into the drawer. After taking the money, T.C.E. attempted to flee in his motor vehicle. A police officer, responding to a BOLO alert, got behind T.C.E. and activated his lights and siren. T.C.E. failed to stop for approximately one mile. The trial court accepted T.C.E.’s plea and adjudicated him guilty of all three offenses. T.C.E. raises two issues on appeal.

First, T.C.E. contends the robbery conviction must be. vacated because the petition improperly alleged that Kangaroo Express was the victim, rather than the clerk who was working the cash register. This pleading deficiency was never raised with the trial court. We reject T.C.E.’s argument.

We conclude the petition was not fundamentally defective and, therefore, T.C.E. has waived this issue. A charging document is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct, or indefinite that the defendant is misled or exposed to double jeopardy. Felton v. State, 919 So.2d 557, 559 (Fla. 5th DCA 2005). In the present case, the petition did not “totally omit an essential element.” The petition simply misstated that the victim was the clerk’s corporate employer rather than the clerk herself. The petition otherwise set forth all of the required elements for a robbery offense and correctly identified the applicable criminal statute. DuBoise v. State, 520 So.2d 260, 264 (Fla. 1988). Additionally, T.C.E. does not contend that he was misled or prejudiced, in any way, by the pleading error. The pleading deficiency should have been raised prior to T.C.E.’s plea — at which time it could have been easily cured. Ford v. State, 802 So.2d 1121, 1130 (Fla.2001).

We also find T.C.E.’s contention that double jeopardy barred his conviction for both robbery and battery to be without merit. As a general rule, a defendant waives any double jeopardy claim by entering a guilty or no contest plea. Novaton v. State, 634 So.2d 607, 609 (Fla.1994). However, an exception to the general rule exists when (a) the plea is a general plea, (b) the double jeopardy violation is apparent from the record, and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation. In the present case, a double jeopardy violation is not apparent on the face of the record. A conviction for robbery does not necessarily preclude a battery conviction even though the battery occurred during the robbery.

Robbery requires proof of a taking or depriving of property, an element that battery does not require. In contrast, the crime of battery requires an actual and intentional touching of the victim, which is not necessarily an element of robbery. During a robbery, a robber could place the victim ‘in fear,’ thereby satisfying the force or violence element of robbery, without satisfying the intentional or actual touching element of battery.

Hamrick v. State, 648 So.2d 274, 276 (Fla. 4th DCA 1995); see also Dunbar v. State, 879 So.2d 98 (Fla. 4th DCA 2004); Phillips v. State, 834 So.2d 272, 274 (Fla. 5th DCA 2002).

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.

      . § 812.13(2), Fla. Stat. (2006).

      . § 316.1935(2), Fla. Stat. (2006).

      .§ 784.03, Fla. Stat. (2006).


author: PER CURIAM.

text:
    Armando SOLIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4278.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.
    Armando Solis, 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.

BARFIELD, DAVIS, and LEWIS, JJ„ concur.