author: WALLACE, Judge.

text:
    Philip Kenneth ANDERSON, III, a/k/a Phillip Anderson, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4118.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 2006.

      James Marion Moorman, Public Defender, and Deana Marshall, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Philip Kenneth Anderson, III, appeals from the order that revoked his community control and imposed a sixty-month prison sentence. The trial court based the order on its determination that Mr. Anderson had willfully and substantially violated an unnumbered, special condition of his conditions of community control that required him to complete a program at a drug treatment facility, to “comply with all the rules and regulations of the program,” and to participate in the treatment program. We conclude that the State failed to prove Mr. Anderson had violated any special condition that had been imposed at sentencing. Therefore, the trial court abused its discretion by revoking Mr. Anderson’s community control and sentencing him to prison. Accordingly, we reverse the order revoking Mr. Anderson’s community control.

On August 19, 2004, Mr. Anderson pleaded guilty to multiple counts of drug possession and delivery stemming from nine cases against him. The trial court sentenced Mr. Anderson as a youthful offender to a sixty-month suspended sentence and placed him on twenty-four months’ community control and forty-eight months’ probation. In addition to the standard conditions of community control, Mr. Anderson’s order of community supervision contained five special conditions. Special condition 13 provided:

You shall be required to pay for tests used to determine whether you have any treatable problem with alcohol or any drug. If you have said problem you are to successfully complete any recommended treatment program, including aftercare, as directed by your officer or any treatment center where you are receiving treatment.

The additional special conditions required that Mr. Anderson submit to random drug testing, ordered him to be confined to the county jail until his admission into a residential drug treatment program, required 100 hours of community service, and suspended the balance of his county jail time once he entered the drug treatment program.

At the sentencing hearing, the trial court warned Mr. Anderson that if he tested positive at any time during his drug treatment program, he would be “taken out of the program, put back in jail and brought back before the Court immediately.” The trial court did not require Mr. Anderson to complete the treatment program within a specified time other than during the twenty-four months’ community control portion of his sentence. Nor did the oral pronouncement or written conditions specify that Mr. Anderson must “comply with all [the] rules and regulations of the program and ... participate in structured treatment programs as assigned.”

On May 25, 2005, the State issued an addendum affidavit of violation of community control. The addendum affidavit alleged that Mr. Anderson had violated condition 12 of his community control by being “away from his approved residence” and that he had violated a

Special Condition which states, “You will enter and successfully complete the non-secure drug treatment facility at PAR. You will reside there in [sic] and comply with all rules and regulations of the program and will participate in structured treatment programs as assigned, and complete and [sic] after-care as required.”

The State’s addendum affidavit further alleged that Mr. Anderson had violated this special condition “when he was unsuccessfully discharged from” the residential drug treatment program “due to ongoing non compliance with rules and failure to participate in treatment while on a Probation Contract.”

At the probation revocation hearing, Mr. Anderson’s drug treatment counselor testified that Mr. Anderson had been discharged from the program for noncompliance. The counselor stated that all of Mr. Anderson’s drug screens taken during his attendance at the program were negative. The counselor also stated that Mr. Anderson attended all of the required counseling sessions. However, the counselor testified that Mr. Anderson was discharged because he did not participate in the counseling sessions and because of minor rule infractions that the counselor described as “horseplay.”

At the hearing, counsel for Mr. Anderson argued that Mr. Anderson’s conditions of community control did not require him to complete a drug treatment program within a specific time period and that Mr. Anderson had sufficient time remaining in his period of community control to complete a drug treatment program. Therefore, counsel argued, the trial court could not find that Mr. Anderson willfully and substantially violated the condition that required him to complete a drug treatment program. Further, Mr. Anderson’s counsel asserted that two twelve-month drug treatment programs had subsequently evaluated Mr. Anderson and that Mr. Anderson was willing to attend one of the programs. The trial court determined that Mr. Anderson had not violated condition 12, but it rejected defense counsel’s argument concerning the special condition. The trial court relied on the State’s affidavit of violation, which alleged that Mr. Anderson’s special condition of community control required him not only to complete the drug treatment program but also to comply with the rules and participate in the treatment, and it found that Mr. Anderson had willfully and substantially violated the special condition.

On appeal, Mr. Anderson argues that because enough time remained in his community control sentence to complete a drug treatment program and because the trial court did not specify that he complete the drug treatment program within a specified time, the trial court abused its discretion by revoking his probation. We agree.

This court has consistently held that if sufficient time in the probationary period remains for a probationer to complete a drug treatment program, a trial court may not revoke probation for failure to complete the program when the conditions of probation or community control did not specify that the program be completed •within a certain time frame or within a certain number of attempts. See, e.g., Yates v. State, 909 So.2d 974 (Fla. 2d DCA 2005); Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004). Furthermore, the record in this case does not reflect that the trial court ever imposed the unnumbered special condition that the State alleged required Mr. Anderson not only to complete a program but also to “comply with all [the] rules and regulations of the program and ... participate” in the assigned activities. Therefore, we find that the trial court abused its discretion in revoking Mr. Anderson’s probation based on a violation of the nonexistent special condition. Accordingly, we reverse the order revoking Mr. Anderson’s community control and imposing a prison sentence, and we remand for further proceedings.

Reversed and remanded.

FULMER, C.J., and VILLANTI, J., Concur.


source: Caselaw Access Project

license: Public Domain

text:
    ON THE LEVEL BUILDERS, INC., Appellant, v. Robert J. FIDDES, Appellee.
    No. 2D06-2848.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 2006.
    William D. Kramer of William D., Kramer, P.A., Naples, for Appellant.
    Mark V. Silverio and Brian M. Silverio, of Silverio & Hall, P.A., Naples, for Appel-lee.
   WALLACE, Judge.

On the Level Builders, Inc. (the Contractor) challenges the trial court’s order that denied its motion to vacate a final judgment. The Contractor alleged that the judgment was obtained by fraud. Because we find that the Contractor’s motion did not set forth a sufficient basis for relief under Florida Rule of Civil Procedure 1.540(b)(3), we affirm the trial court’s order. See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994).

ALTENBERND and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    Nancy HOLLINGSWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3106.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Nancy Hollingsworth, appeals the trial court’s denial of her motion to withdraw her nolo contendere plea. She argues that this was her exclusive means to perfect her right to appeal the denial of her motion to suppress which was not properly preserved for appeal pursuant to Florida Rule of Appellant Procedure 9.140 (b) (2) (A) (i) and section 924.06(3), florida Statutes (2003). Because we find that the trial court timely found that the denial of the motion to suppress was dis-positive and preserved the issue for appeal, we affirm the denial of appellant’s motion to withdraw her plea without prejudice to her filing a belated appeal within thirty days of the mandate being issued in this case.

Affirmed with Directions.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    TORWEST, INC., Appellant, v. Kevin J. KILLILEA, Appellee.
    No. 4D06-22.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Steven L. Brannock of Holland & Knight LLP, Tampa, and Eli H. Subin of Holland & Knight LLP, Orlando, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Lisabeth Kirk Rogers of Rogers & Rogers, Seneca, South Carolina, for appellee.
   PER CURIAM.

Kevin Killilea entered into an agreement with Torwest, Inc. to develop a “referral network of Realtors” for two Torwest real estate developments in Yero Beach. After a bench trial, the trial court determined the compensation portion of the agreement was not ambiguous and awarded Killilea commissions of $650,899.27.

Whether an ambiguity exists in a contract is a question of law subject to a de novo standard of review. See Essex Ins. Co. v. Simpler, 911 So.2d 794 (Fla. 1st DCA 2004); Wagner v. Wagner, 885 So.2d 488, 492 (Fla. 1st DCA 2004). Language in a contract is ambiguous where it is “fairly susceptible to more than one interpretation.” McInerney v. Klovstad, 935 So.2d 529, 531-32 (Fla. 5th DCA 2006). “In reviewing a contract ... to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion.” J.C. Penney Co. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977).

The “fee and compensation” language of the contract refers to “any prospect originating from any county Killilea has or is working in [sic].” “Prospect originating” is an unusual locution; the contract does not refer to a “buyer,” “purchaser,” or “vendee.” A “prospect” suggests a potential customer who has been developed or located. One reasonable reading of the contract is that the term “prospect” ties in with the repeated use of that term in the “Broker Referral Program,” which is incorporated into the contract, so that Killilea’s entitlement to a fee turns on the registration of a prospect under the terms of the referral program.

Because we hold the “fee and compensation” language to be ambiguous, we reverse the final judgment and remand to the trial court to allow the parties to present parol and extrinsic evidence so that the trial court can discern the parties’ intent.

GROSS, HAZOURI, JJ., and MAASS, ELIZABETH T., Associate Judge, concur.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Donovan GORDON and Donna Gordon, Appellees.
    No. 4D05-4838.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
    Christopher W. Pole, Fort Lauderdale, for appellees.
   HAZOURI, J.

Appellees, Donovan and Donna Gordon, were charged by information with grand theft after allegedly removing their vehicle from the possession of an auto body shop without paying for repairs that had been made on the vehicle. Appellees filed a motion to dismiss the information filed against them on the grounds that “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant[s]” pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). They alleged that the body shop had not complied with the provisions of section 559.905, Florida Statutes (2005), which requires an automobile repair shop to supply a written repair estimate to the customer which contains certain information as provided in the statute.

Appellant, the State of Florida, filed its traverse to the motion as provided in Florida Rule of Criminal Procedure 3.190(d) in which it denied certain facts asserted by appellees in their motion and cited to Lieberman v. Collision Specialists, Inc., 526 So.2d 102 (Fla. 4th DCA 1987). In Lieber man, this court held that if there is substantial compliance with the requirements of section 559.905, a debt is incurred.

We find that the traverse raised evidence of substantial compliance and therefore material disputed facts. We reverse the trial court’s order of dismissal and remand to reinstate the charges against appellees.

Reversed and Remanded.

STONE and SHAHOOD, JJ., concur.


author: FARMER, J.

text:
    John HROMYAK, Appellant, v. TYCO INTERNATIONAL LTD.; Price Waterhouse Coopers, LLP.; L. Dennis Kozlowski; Michael A. Ashcroft; Joshua M. Berman; Richard S. Bodman; John F. Fort; Stephen W. Foss; Richard A. Gilleland; Philip M. Hampton; James S. Pasman, Jr.; W. Peter Slusser; Mark H. Swartz; Frank E. Walsh, Jr., Appellees.
    No. 4D05-3703.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Stephen R. Astley, Jack Reise, Paul J. Geller and David J. George, of Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, LLP., Boca Raton, and S. Gene Cau-ley, Curtis L. Bowman, J. Alen Carney and Marcus N. Bozeman of Cauley, Bowman, Carney & Williams, PLLC., Little Rock, Arkansas, for appellant.
    Sigrid S. McCawley, Stuart H. Singer of Boies, Schiller & Flexner, LLP., Fort Lauderdale, and Francis P. Barron and Stephen S. Madsen of Cravath, Swaine & Moore, LLP., New York, New York, for appellee Tyco International LTD.
   FARMER, J.

A stockholder complains that his shareholder’s suit filed in 2002 in Palm Beach County under the Securities Exchange Act of 1934 (Exchange Act) and the Securities Act of 1933 (1933 Act) was improperly dismissed on statute of limitations grounds. He argues that he is entitled to claim class action tolling of the statute of limitations on account of a 1999 class action filed in federal court. In re Tyco Int'l, 185 F.Supp.2d 102 (D.N.H.2002) (dismissing claims under Securities Exchange Act of 1934 relating to merger with United States Surgical Corporation as legally deficient, and dismissing claims under Securities Act of 1933 relating to merger with AMP Inc. as barred by statute of limitations). We disagree and affirm.

In American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Court determined that class action tolling applies from commencement of the class action and continues until certification is denied. Specifically, it found that tolling was consistent with the policy behind class actions and statutes of limitations. 414 U.S. at 554-55, 94 S.Ct. 756. The Court said that the filing of the complaint operated to give timely and adequate notice to the defendant of the claims asserted and number of members asserting such rights. Moreover, it served to satisfy efficiency and economy in the courts. American Pipe held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who could have been parties had the suit been permitted to continue as a class.” 414 U.S. at 554, 94 S.Ct. 756.

In Crown, Cork & Seal Company, Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court held that American Pipe’s equitable tolling extended not just to intervenors in the original action but also to separately filed suits. Class action tolling thus applied to “all asserted members” who later file actions of their own. 462 U.S. at 350, 103 S.Ct. 2392. The Court explained that “unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights.” Id.

The trial court here applied these holdings in concluding that class action tolling did not apply to the current action filed by plaintiff. First, it found that the new claims are not identical to those asserted in the earlier federal action. In the federal action, the 1933 Act claim related to the merger with AMP, and the Exchange Act claim concerned the U.S. Surgical acquisition. In this action, in contrast, the 1933 Act claim relates to the merger with U.S. Surgical Corporation. The trial court held that plaintiffs 1933 Act claim here is not identical to the Exchange Act claim in the federal action.

We find no error in the trial court’s ruling. It is manifest from the court’s comparison that the claims in the two actions are not identical. We agree that the American Pipe holding requires that the claims in the later action be the same as those alleged in the earlier action. If the earlier federal class action involved different claims with different classes, plaintiff would not necessarily have been a member of the earlier class. If he was not a member of the class, he could derive no benefit from its pendency. On the other hand if he had been a member, his interests would have been asserted in that litigation.

Because plaintiffs claims do not satisfy that essential ingredient for American Pipe tolling, the trial court committed no error in dismissing his claim on limitations grounds.

Affirmed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    Crystal ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3983.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appel-lee.
   FARMER, J.

Five days after sentence was imposed on her plea of no contest, defendant filed a motion to withdraw her plea. One day later, she filed a pro se notice of appeal from her conviction. The trial court ruled that it lacked jurisdiction to consider her motion to withdraw plea since she filed a notice of appeal. We reverse.

We accept the State’s concession of error. When a timely-filed motion to withdraw a plea under rule 3.170(Z) is pending, the final judgment of conviction and sentence is not deemed rendered if a notice of appeal is filed before the motion is decided. See Fla. R.App. P. 9.020(h)(3) (if timely rule 3.170(Z) motion to withdraw plea after sentencing has been filed and notice of appeal is then filed before entry of order disposing of such motion, the motion shall not be affected by filing of notice of appeal from judgment of guilt, notice of appeal shall be treated as prematurely filed, and appeal held in abeyance until entry of order disposing of such motion); see also Smith v. State, 900 So.2d 732, 733 (Fla. 4th DCA 2005) (where timely motion to withdraw plea is pending when notice of appeal is filed, trial court still has jurisdiction to decide motion).

Reversed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    Sammy ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3838.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is before us on remand from the Florida Supreme Court which quashed our earlier decision reported at Ross v. State, 912 So.2d 4 (Fla. 4th DCA 2005). On the authority of State v. Richardson, 915 So.2d 86 (Fla.2005), we affirm the habitual felony offender sentence.

GROSS, TAYLOR and HAZOURI, JJ., concur.


text:
    Elnora GATTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3736.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Edward De R. Cayia, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Elnora Gatto appeals from the denial of her motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find possible merit in the first ground for relief. Facially sufficient is Gatto’s claim that her trial counsel was ineffective for advising her to plead guilty to burglary when she would have had a complete defense to the charge under Delgado v. State, 776 So.2d 233 (Fla.2000). We reverse and remand for an evidentiary hearing on this claim only.

WARNER, FARMER and KLEIN, JJ., concur.


author: KLEIN, J.

text:
    Miguel MUNOZ-PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-203.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of burglary with a battery and aggravated battery with a knife. We conclude that appellant’s possession of the knife was insufficient to satisfy the requirement that he was using a deadly weapon while committing a battery. We further find that the prosecutor’s comment to appellant, on cross-examination of appellant, that they had never spoken before, was, on these specific facts, a comment on his silence which requires a new trial.

According to the victim, she and her husband were in their home one afternoon when she heard glass break and, a few minutes later, a knock on her back door. When she opened the door she saw the appellant crouching on the ground. He forced his way into the kitchen, grabbed her, and said two words she could not understand. When she screamed, he grabbed a sharp knife and held it near her throat. Appellant then bolted into the dining room and dove head first through a closed glass window.

The victim’s husband then went out the front door and observed appellant under a truck, covered in blood. Appellant got up and was swinging the knife in a threatening manner. When the victim’s husband picked up a coconut, appellant put down the knife and sat down. Soon thereafter the police, who were called by a neighbor, arrived and appellant was seen kicking at the police and acting in an irrational manner.

At trial appellant took the stand and testified that he had been depressed, did not know what he was doing, and thought someone was following him trying to kill him. He described the events at the home of the victim in a manner generally consistent with their testimony, claiming that he had asked the woman, after he went in the house, to “help me.” The state’s first question on cross-examination was, “We’ve never spoken before, have we?”. To this appellant answered in the negative. Appellant then objected that the state had commented on his right to remain silent and moved for a mistrial. The court denied the motion for mistrial but instructed the jury as follows:

All right, ladies and gentlemen, as you know, through the voir dire, the defendant has the right to remain silent, and he has, so, and probably upon advice of his attorney he did not and would not talk to the prosecutor. That’s generally something that doesn’t happen.
So I don’t want you to think badly of Mr. Munozr-Perez because it’s a very very rare day that a defendant charged with a crime actually talks to the prosecutor during the pendency of the litigation.

On closing argument, the state commented:

Remember I asked him on the stand, I said, have you ever spoken to me before, have we ever talked? Well, that was because that’s the first time anybody has ever heard insanity. That I was crazy.

Appellant then objected again that this was a comment on his right to remain silent, but did not move for a mistrial.

Appellant argues correctly that “the Due Process Clause of the Fourteenth Amendment prohibits the use by the prosecution of a criminal defendant’s post-arrest and post-Miranda silence for impeachment purposes.” Downs v. Moore, 801 So.2d 906, 911 (Fla.2001) (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)). Nor may post-Miranda silence be used as evidence of sanity. Garron v. State, 528 So.2d 853, 355 (Fla.1988) (citing Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)). The major issue in this case was whether appellant was sane at the time he committed the crimes, and the victims testified that he appeared insane. The improper comments directly undercut that defense, and the trial court’s instruction made appellant’s choice to follow his attorney’s advice sound rational and sane rather than insane. We accordingly reverse for a new trial.

Appellant also argues that, because he never touched the victim with the knife, there was insufficient evidence to prove aggravated battery, which is defined by section 784.045(l)(a)(2), Florida Statutes (2002), as follows:

(1) (a) A person commits aggravated battery who, in committing battery:
* * *
2. Uses a deadly weapon.

The issue of whether there must be a touching with the deadly weapon in order to prove aggravated battery by using a deadly weapon has not been decided by any of the cases cited by the appellant or the state. Appellant relies on three cases in which the defendant was holding a deadly weapon such as a knife or a firearm, but did not touch the victim with the knife or discharge the firearm, and the convictions were for attempted aggravated battery. F.N. v. State, 745 So.2d 1149, 1151 (Fla. 4th DCA 1999), Blandin v. State, 916 So.2d 969, 971 (Fla. 2nd DCA 2005), Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001).

Our supreme court has noted that the legislature has made a distinction between carrying a weapon and using a weapon in our statutes, in State v. Baker, 452 So.2d 927 (Fla.1984), and Owens v. State, 475 So.2d 1238 (Fla.1985). We conclude, based on these cases, that the element “uses a deadly weapon” in the aggravated battery statute means using the weapon to commit the touching that constitutes the battery. The trial court should have granted appellant’s motion for judgment of acquittal on the aggravated battery charge.

We decline to rule on the argument raised by appellant that the court erred in excluding expert testimony pertaining to his insanity defense, because the specific argument he raises on appeal was not raised in the trial court. Reversed for a new trial.

POLEN and MAY, JJ., concur.


text:
    Jerome WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3415.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Jerome Wallace, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jerome Wallace appeals a final order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of claim three. This point concerns Wallace’s legally-sufficient allegation that counsel failed to investigate and call an alleged alibi witness to testify at trial. Badger v. State, 933 So.2d 729 (Fla. 4th DCA 2006); Nelson v. State, 875 So.2d 579 (Fla.2004). On remand, the trial court shall conduct an evidentiary hearing to determine whether counsel was ineffective such that Wallace suffered the requisite prejudice. Strickland v. Washington, 466 U.S. 668, 695-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We affirm as to all other claims.

STEVENSON, C.J., GUNTHER and HAZOURI, JJ., concur.


text:
    Clifford SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3397.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Clifford Shelton, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Clifford Shelton appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Shelton claimed entitlement to credit for time served in jail prior to his date of conviction and sentencing and for time served after sentencing but before transport to prison. Shelton is not entitled to seek credit in the trial court for post-sentencing time served, as that is properly raised with the Department of Corrections. See Schuettler v. State, 931 So.2d 1044 (Fla. 4th DCA 2006); Milne v. State, 807 So.2d 725 (Fla. 4th DCA 2002). Thus, the trial court did not err in summarily denying that portion of his motion asking for post-sentencing credit.

However, it did err insofar as it also summarily denied his claim for pre-sentencing time served from the date of his arrest in June 1989 to the date of his conviction and sentencing on March 21, 1990. Therefore, we reverse and remand for the trial court to consider the latter claim for jail credit on its merits.

Affirmed in Part, Reversed and Remanded in Part.

GUNTHER, KLEIN and GROSS, JJ., concur.


text:
    Robert CRISWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2473.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Robert Criswell, Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Robert Criswell appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. Criswell alleged that the trial court failed to direct the Department of Corrections (DOC) to calculate time he previously served in prison when sentencing him for violation of probation.

On the sentencing documents, the court awarded Criswell 140 days of jail credit for time served, but did not check off the box beside the paragraph for awards of credit so as to direct the DOC to compute and apply credit for prison time served pursuant to section 921.0017, Florida Statutes. Further, the trial judge’s comments at sentencing revealed that he did not intend to direct the DOC to calculate credit for time Criswell previously spent in prison.

The trial court erred in denying the motion based on a response by the State that the DOC actually had applied the credit for time served in prison. The release date noted by the State would not reflect that credit. We find the motion legally sufficient and the error clear on the face of the record. See Johnson v. State, 881 So.2d 88 (Fla. 5th DCA 2004). The order denying relief is therefore reversed and the case remanded to the trial court for correction of Criswell’s sentence.

Reversed and Remanded.

STEVENSON, C.J., GUNTHER and GROSS, JJ., concur.


author: KRATHEN, DAVID H., Associate Judge.

text:
    Wesley T. O’BRIEN, Appellant, v. PRECISION RESPONSE CORPORATION, Appellee.
    No. 4D05-4350.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Robert J. Hunt and Debra D. Klings-berg of Hunt & Gross, P.A., Boca Raton, and Mark S. Gregory of Kelley, Drye & Warren, LLP, Stamford, CT, for appellant.
    Alan G. Greer and Eric M. Sodhi of Richman, Greer, Weil, Brumbaugh, Mira-bito & Christensen, P.A., Miami, for appel-lee.
   KRATHEN, DAVID H., Associate Judge.

Wesley O’Brien appeals an order denying his indemnification claim for attorneys fees in defending himself in corporate arbitration and instead granting the motion of his corporation, Precision Response Corporation (PRC) for summary judgment denying such fees. In Appelbaum v. Fayerman, 937 So.2d 282 (Fla. 4th DCA 2006), this court held that an arbitrator lacks authority to award attorneys fees unless the party has expressly waived the right to have a court determine such fees. 937 So.2d at 283-84. Appelbaum followed the supreme court’s decision to that effect in Turnberry Associates v. Service Station Aid Inc., 651 So.2d 1173, 1175 (Fla.1995). Thus when an indemnification agreement and statute provide for the recovery of attorneys fees in favor of a corporate officer who has successfully defended a claim on the merits or otherwise, we now hold that attorneys fees should be awarded by the court unless the officer has expressly waived that right. Finding no such express waiver in this case, we reverse.

O’Brien’s claim arose from events after PRC entered into an agreement to acquire Avultus, Inc., from New River Holding Limited Partnership. O’Brien was then the chief operating officer of PRC and also a disclosed shareholder in Avultus at the time. After realizing that it may have bought a “pig in a poke,” New River pursued an arbitration claim for release of some escrowed funds. PRC disputed the claim, and alleged its own contract and tort claims, including fraud, against New River and O’Brien. O’Brien then sought declaratory relief that his conduct giving rise to the termination was proper. Before Arbitration, the parties stipulated to an “Agreement and Order Regarding Hearing Procedures” (submission agreement) providing as follows:

Attorneys’ Fees/'Prejudgment Interest: All issues of attorneys’ fees and costs, including entitlement and amount, and issues of prejudgment interest shall be reserved for determination after the conclusion of these evidentiary hearings and the award of the Panel. The parties consent to the continuing jurisdiction of the Panel for this purpose.

PRC contends that this agreement constitutes O’Brien’s waiver of court determination of his claim to indemnification attorneys fees.

In the Arbitration, O’Brien sought relief from PRC for breach of indemnification agreement and on the basis of section 607.0850, Florida Statutes, for the advancement of expenses. Before the arbitration hearing, O’Brien filed a motion in the trial court for a partial summary judgment that PRC was required to advance him attorneys’ fees and expenses for his defense in the forthcoming arbitration proceeding. He cited the following provision from his indemnification agreement with PRC:

“Mandatory Payment of Expenses: Notwithstanding any other provision of this Agreement other than Section 10 hereof, to the extent that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any Claim, Indem-nitee shall be indemnified against all expenses incurred by Indemnitee in connection therewith.”

O’Brien also cited and relied on section 607.0850(3), governing the indemnification of officers, directors, employees, and agents in Florida:

“To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith.”

§ 607.0850(3), Fla. Stat. (2005). At the hearing on his motion in the trial court, his counsel hypothesized that: “this isn’t the final word.... After adjudication by the panel ... let’s say it goes against Mr. O’Brien and it’s determined that he wasn’t entitled to have his legal fees paid, he’s got to repay it....”

The trial court denied O’Brien’s motion. Thereafter, the arbitrator found against PRC on its claims against O’Brien. The arbitrator also found that O’Brien should not recover on his claims against PRC, that he was not entitled to a declaration that his conduct in the merger was proper. The arbitrator held that there was no prevailing party in the arbitration proceeding. Appellant argues that by any definition, PRC lost on its claims against O’Brien and came away without any recovery from O’Brien. Simply put, he is right.

Because the Arbitration panel indisputably held that the claims of PRC against O’Brien had failed, O’Brien was successful on the merits “or otherwise” as to all legal theories asserted against him by PRC. The arbitrator’s decision to the effect that O’Brien was not a prevailing party in the arbitration clearly has no effect as to O’Brien’s contractual and statutory claim for indemnification attorneys fees — that as a corporate officer he is entitled to be indemnified for expenses actually and reasonably incurred in connection with his official duties in the PRC arbitration. When an officer successfully defends on the merits “or otherwise” the officer is statutorily entitled to have a court award indemnification attorneys fees unless he has expressly waived that entitlement to a judicial determination. The language of the arbitration submission agreement is insufficient to constitute such an express waiver because it is reasonably susceptible to differing interpretations.

We therefore vacate the trial court’s final orders denying O’Brien’s claim for indemnification attorneys fees in connection with the arbitration. On remand the trial court shall determine the amount of fees and expenses.

Reversed and remanded with instructions.

GUNTHER and FARMER, JJ., concur.

      . Enshrined in British commercial law as "caveat emptor.” In his Common-place Book (1858) R. Hilles reprints the phrase from a source dated 1530, which gave this advice to market traders: "When ye proffer the pigge open the poke.” See: www.phrases. org. uk/meanings/282900. html.

      . One's statutory and contractual right to a judicial determination of an entitlement to be indemnified with attorneys fees is not dependent upon an arbitrator finding one party or the other is a "prevailing party.”


author: LEWIS, TERRY P., Associate Judge.

text:
    W.C. SHERMAN, as Okeechobee County Property Appraiser, Appellant, v. RED BAY STRONGHOLD FOUNDATION, Appellee.
    No. 4D05-3240.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.

      Loren E. Levy of The Levy Law Firm, Tallahassee, and Gaylord A. Wood of Wood & Stuart, P.A., New Smyrna Beach, for appellant.
    Harold G. Melville of Melville, Sowerby & McCarty, P.L., Fort Pierce, for appellee.
   LEWIS, TERRY P., Associate Judge.

The appellant, the property appraiser for Okeechobee County, appeals a final summary judgment which held that approximately 2400 acres of land owned by appellee was entitled to an exemption from ad valorem taxes for the years 2003 and 2004. Except as to a thirty acre portion of this parcel, we find no error in the trial court’s determination.

Section 196.192, Florida Statutes (2003), provides in pertinent part:

(1) All property owned by an exempt entity and used exclusively for exempt purposes shall be totally exempt from ad valorem taxation.
(2) All property owned by an exempt entity and used predominantly for exempt purposes shall be exempted from ad valorem taxation to the extent of the ratio that such predominant use bears to the nonexempt use.

An “exempt” use of property is defined as “educational, literary, scientific, religious, charitable, or governmental purposes, as defined in this chapter.” § 196.012(1), Fla. Stat. (2003). “Exclusive use” is defined as “use of property solely for exempt purposes. Such purposes may include more than one class of exempt use.” § 196.012(2), Fla. Stat. (2003). “Predominant use” is defined as “use of property for exempt purposes in excess of 50 percent but less than exclusive.” § 196.012(3), Fla. Stat. (2003).

Section 196.196, Florida Statutes (2003), provides guidelines to determine whether property is entitled to exemption from ad valorem taxes:

(1) In the determination of whether an applicant is actually using all or a portion of its property predominantly for a charitable, religious, scientific, or literary purpose, the following criteria shall be applied:
(a) The nature and extent of the charitable, religious, scientific, or literary activity of the applicant, a comparison of such activities with all other activities of the organization, and the utilization of the property for charitable, religious, scientific, or literary activities as compared with other uses.
(b) The extent to which the property has been made available to groups who perform exempt purposes at a charge that is equal to or less than the cost of providing the facilities for their use. Such rental or service shall be considered as part of the exempt purposes of the applicant.
(2) Only those portions of property used predominantly for charitable, religious, scientific, or literary purposes shall be exempt. In no event shall an incidental use of property either qualify such property for an exemption or impair the exemption of an otherwise exempt property.

Applying these statutory provisions to the undisputed facts in the case, the trial court determined, as a matter of law, that the parcel of property was owned by an exempt entity and was used exclusively for charitable purposes, specifically, for conservation. The appellant does not contend on appeal that the appellee is not an exempt entity but suggests the trial court erred in determining that the property was used either exclusively or predominantly for exempt purposes. The appellant points to evidence in the record that: (1) the lessee of the property, the Independent Traditional Seminole Nation, had cleared approximately 30 acres on the property for purposes of providing ceremonial grounds upon which the “green corn dance” could take place; (2) Appel-lee acknowledged that there had been some hunting on the property; (3) a primitive camping area, which existed on the property prior to purchase, was used by members of the Nation while they were there to maintain the property in its natural state; (4) some members took their children onto the property to teach them about nature.

Except for the thirty acre portion of property cleared as ceremonial grounds, the record supports the trial court’s implicit determination that these were incidental uses of the property which should not affect its classification as exempt. See § 196.196(2), Fla. Stat. The clearing of the thirty acres, however, was not incidental to or consistent with leaving the property in its “natural state,” and thus, the property was not used exclusively for exempt purposes. On the other hand, the record supports the conclusion that the clearing of such a relatively small portion of the property would not negatively impact the balance of the property for conservation purposes or the maintenance of a natural habitat, as opined by one of the appellee’s expert witnesses.

Accordingly, the case is reversed and remanded with direction to the trial court to amend the Final Judgment to reflect the 30-acre portion of the 2400-acre parcel as nonexempt and taxable for the two tax years in question and the remaining portion of the parcel exempt and nontaxable for the two years in question.

Affirmed in part, Reversed in part and Remanded with directions.

FARMER and SHAHOOD, JJ., concur.

      . The first such dance did not take place, however, until June or July, 2004.

      . The Appellee suggests that religious purposes would also qualify the property for exemption but acknowledges that there were disputed issues of fact regarding this exemption, and also acknowledges that during the relevant dates for determining tax exemption, the property had been cleared but had not yet been used for any such purported religious purpose. Moreover, the trial court's finding of an exemption in this case was based solely upon the use of the property for conservation purposes.


author: VILLANTI, Judge.

text:
    Jose Antonio MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5807.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Jose Antonio Molina appeals the denial of his motion to withdraw his guilty plea. Molina contends that his plea was not voluntary because he misunderstood the conditions of his substantial assistance agreement. Because the record does not conclusively refute Molina’s allegations, we reverse the denial of his motion to withdraw his plea and remand for an evi-dentiary hearing.

Molina pleaded guilty in open court to charges of trafficking in cocaine and conspiracy to engage in trafficking in cocaine. During the plea hearing, the court properly inquired as to matters such as Molina’s mental state, his understanding that he was giving up certain rights, and his understanding that he could be deported as a result of his plea. At one point, Molina’s attorney mentioned that he wanted “to put on the record in case anything comes up, it’s a cooperation case.” The court subsequently accepted Molina’s plea as freely and voluntarily entered, but the court did not inquire as to the terms of the cooperation agreement nor as to Molina’s understanding of the terms. Indeed, the only record reference to a cooperation agreement or a substantial assistance agreement during the entire plea colloquy was Molina’s attorney’s comment that “it’s a cooperation case.”

Before sentencing, Molina filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f), asserting that he did not understand the expectations of his substantial assistance agreement and that he was afraid he would not be able to provide assistance as law enforcement expected. During a hearing on Molina’s motion, his attorney argued that Molina did not realize he would be expected to assist law enforcement from inside jail. The court denied Molina’s motion after hearing only Molina’s attorney’s argument.

“A guilty plea ‘must be voluntarily made by one competent to know the consequences of that plea....’” Lopez v. State, 536 So.2d 226, 228 (Fla.1988) (quoting Mikenas v. State, 460 So.2d 359, 361 (Fla.1984)). Further, the trial court must “carefully inquire” into the defendant’s understanding of the plea, “so that the record contains an affirmative showing that the plea was intelligent and voluntary.” Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Once a plea is accepted, a defendant must establish good cause to withdraw the plea prior to sentencing. Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981).

Molina contends that his plea was not voluntary because he did not understand the terms of his substantial assistance agreement. In general, if a misunderstanding of the nature and scope of a substantial assistance agreement is found, withdrawal of a defendant’s guilty plea is warranted. See Elias v. State, 531 So.2d 418, 420 (Fla. 4th DCA 1988). In reviewing a motion to withdraw a plea, the trial court must: (1) accept the defendant’s allegations “as true, except to the extent that they are conclusively rebutted by the record” or (2) hold an evidentiary hearing to determine the truth of the allegations. Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (quoting Simeton v. State, 734 So.2d 446, 447 (Fla. 4th DCA 1999)); see also Daniel v. State, 865 So.2d 661, 661 (Fla. 2d DCA 2004) (reversing denial of motion to withdraw a guilty plea and remanding for an evidentiary hearing because the record failed to show that Daniel was not entitled to relief).

The record before us does not reveal Molina’s understanding, or lack of understanding, of the terms of the substantial assistance agreement at the time of his plea. Although the court carefully inquired as to Molina’s understanding of other relevant matters, after Molina’s attorney mentioned that this was a cooperation case, the court did not make any inquiry as to the form or contents of the substantial assistance agreement. Consequently, the record does not conclusively establish that Molina understood the terms of the substantial assistance agreement, and therefore, accepting Molina’s allegations as true, the record does not conclusively refute Molina’s allegations. Because the record does not conclusively refute Molina’s allegations, Molina was entitled to an eviden-tiary hearing. Although the court held a hearing on Molina’s motion, it was not an “evidentiary” hearing as required under the circumstances of this case.

In denying Molina’s motion, the court relied on its societal concerns — not Molina’s understanding — to justify why Molina should not be permitted to withdraw his plea. The court stated:

When does anyone know what the expectations of law enforcement are going to be? Typically, drug traffickers enter pleas with the hopes that they will be able to offer substantial assistance and with the hopes that law enforcement will come in and give a favorable report to the Court. Those are all hopes. Sometimes those hopes come to fruition; sometimes they don’t. Sometimes defendants will say, I can ... give substantial assistance when, in fact, they can’t, and they’re hoping to prolong the inevitable.
If I set aside the plea, then I may be setting a precedent that we no longer allow substantial assistance to law enforcement. And I think that we all know that that would not be a good thing for our society.

The court heard only Molina’s attorney’s argument and did not take any evidence to determine whether Molina understood or misunderstood the terms of the substantial assistance agreement. The court’s decision to deny Molina’s motion was apparently based upon its societal concerns and not upon the record or upon any evidence produced at an evidentiary hearing. The court’s societal concerns, however noble, cannot override the court’s duty to either accept Molina’s unrefuted allegations as true or hold an evidentiary hearing to determine the truth of his allegations. Because the record does not conclusively refute Molina’s allegations, the trial court erred in denying Molina’s motion without holding an evidentiary hearing.

Reversed and remanded for an eviden-tiary hearing.

ALTENBERND, J., and HAYES, HUGH D., Associate Judge, Concur.

      . In their briefing to this court, both Molina and the State acknowledge that there was a cooperation agreement between Molina and the State, that the cooperation agreement is the same thing as a substantial assistance agreement, and that there is no written version of the agreement in the record.

      . We recognize the inherent danger of putting the terms of a substantial assistance agreement on the record, both in potentially hindering the performance of the agreement and in potentially jeopardizing the defendant's personal safety. For this reason, such agreements are often made off the record or in a cryptic fashion on the record. However, as this case shows, as challenging as it may be, the better practice is to ensure that the defendant's complete understanding of the terms of the agreement is clearly placed on the record.


author: CANADY, Judge.

text:
    Thomas Edward FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5660.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Thomas Edward Fuller appeals his judgment and sentence for aggravated assault with a deadly weapon. We affirm the denial of Fuller’s motion for judgment of acquittal without comment. We conclude, however, that the jury instructions were — as the State concedes — fundamentally erroneous because they improperly “permitted the jury to convict [the defendant] of aggravated assault[, see § 784.021, Fla. Stat. (2004),] if one alleged victim was threatened while the other [alleged victim] had a well-founded fear of violence.” Miller v. State, 918 So.2d 415, 416-17 (Fla. 2d DCA 2006); see also Tindle v. State, 832 So.2d 966, 967 (Fla. 5th DCA 2002); James v. State, 706 So.2d 64, 65 (Fla. 5th DCA 1998). We therefore reverse and remand for a new trial.

Reversed and remanded.

FULMER, C.J., and WHATLEY, J., Concur.


author: NORTHCUTT, Judge.

text:
    In re FORFEITURE OF: SEVEN THOUSAND AND 00/100 DOLLARS ($7000.00) UNITED STATES CURRENCY. Department of Highway Safety & Motor Vehicles, Appellant, v. Hector E. Calderon and Maria Teresa Peralta-Mazza, Appellees.
    No. 2D05-6167.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Steven Todd Gold, Deputy Solicitor General, Tallahassee, for Appellant.
    No appearance for Appellees.
   NORTHCUTT, Judge.

We conclude that the Department of Highway Safety and Motor Vehicles established probable cause for the forfeiture of $7000 in currency seized from Hector Calderon’s car, and so we reverse the circuit court’s ruling to the contrary.

Florida Highway Patrol Trooper Michael Merritt stopped Calderon for speeding on 1-75 in Lee County. Maria Teresa Peralta-Mazza was in the car with Calderon, as was the couple’s baby. The trooper seized $7000 that was discovered in the car, and the Department filed a petition for forfeiture. See § 932.704(4), Fla. Stat. (2005).

The Florida Contraband Forfeiture Act defines contraband, in part, as “currency ... that was used, was attempted to be used, or was intended to be used” in violation of various Florida laws, including the drug laws in chapter 893, Florida Statutes. § 932.701(2)(a)(l). The State has the burden of establishing “probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.” § 932.701(2)(a)(l).

After the seizure of personal property, the seizing agency must provide notice of the right to an adversarial preliminary hearing, and a defined class of persons entitled to notice has a specified time to request such a hearing. § 932.703(2)(a). If requested, the hearing must be held in short order, and the court must determine whether the seizing agency proves probable cause for forfeiture by reviewing the agency’s verified affidavit, supporting documents, and testimony. § 932.703(2)(c). If probable cause is established, the property is held until a trial on the ultimate issue of forfeiture. § 932.704(3). A final order of forfeiture must be based on clear and convincing evidence.

Calderon and Peralta-Mazza timely obtained an adversarial preliminary hearing. At the hearing, Trooper Merritt testified that after he had stopped Calderon and was writing a traffic citation, he learned that Calderon was driving with a suspended license and was on probation for possession of MDMA (Ecstasy). Calderon was initially evasive when responding to the trooper’s questions about his criminal history, but when asked directly Calderon finally admitted that he was on probation for the drug charge. According to Trooper Merritt, Calderon was very nervous during the traffic stop and his nervousness increased to the point that his voice was trembling and his hands and legs were shaking.

The trooper testified that Calderon and Peralta-Mazza consented to a search of the vehicle, and the search revealed about $2000 in a purse and another $5000 that had been placed in a man’s athletic shoe. Calderon and Peralta-Mazza waited with their baby in the back of the patrol car, and their conversation was recorded while they sat there. In the patrol car, Peralta-Mazza asked Calderon whether it was illegal to have the money, and Calderon told Peralta-Mazza to say that the money was hers. Calderon also asked Peralta-Mazza if she still had marijuana in her purse, to which she said no, and there was some discussion regarding whether a pill would be found in the car.

Trooper Merritt testified that when he interviewed Calderon and Peralta-Mazza after the search they gave inconsistent statements about the source of the money, who owned it, and how it came to be in the car. Calderon, for example, said that his mother had put the $5000 in the shoe and left it on her front porch for him to pick up. Not surprisingly, the trooper found this story odd. Peralta-Mazza said that the money was in a cardboard box in the house and she retrieved it and put it in the car. Both said that some of the money came from Calderon’s sale of a car for his mother, but one said that the sale had occurred a month previously and the other asserted that it had been a year since the sale.

Calderon and Peralta-Mazza told the trooper that they held modest-paying jobs, and Peralta-Mazza said she was living on public assistance. They both said they had bank accounts but did not have an explanation satisfactory to the trooper as to why they were carrying so much cash. Given the description of their economic circumstances, the amount of currency made the trooper suspicious. The money, mostly twenty-dollar bills, was packaged in bundles of $1000 and wrapped with rubber bands. According to law enforcement testimony at the hearing, this was consistent with the way drug dealers carry their currency. Further, Trooper Merritt testified that there were five cell phones in the car and that two were ringing constantly during the traffic stop. In the trooper’s experience, the number of cell phones was also similar to the modus operandi for drug dealers.

Shortly after the stop, Trooper Merritt was joined by Sergeant Stephen Ford of the Lee County Sheriffs Office. Sergeant Ford had a narcotics detection dog with him, and the dog alerted on the car. Calderon attempted to explain the dog’s alert by stating that some people had recently smoked marijuana in the car. Trooper Merritt testified that he saw marijuana residue in the driver’s seat and on the floorboard, but no drugs were seized.

After hearing the evidence, the circuit court ruled that there was no probable cause for forfeiture proceedings because no illegal controlled substances were found in the car, and the Department appealed. At this stage, we are reviewing only whether the Department established probable cause for forfeiture. Because Fourth Amendment protections apply in forfeiture proceedings, we accept the historical facts as found by the circuit court and we review de novo whether the application of the law to those facts forms an adequate basis to support the circuit court’s finding with respect to probable cause. State, Dep’t of Highway Safety & Motor Vehicles v. Jones, 780 So.2d 949, 951 (Fla. 4th DCA 2001).

As mentioned above, the Department was not required to connect the currency to a specific narcotics transaction. It was only required to demonstrate probable cause to believe that there was a nexus between the currency and narcotics activity. § 932.701(2)(a)(l). Probable cause in this context means less than a prima facie case, but more than a mere suspicion. Dep’t of Highway Safety & Motor Vehicles v. Charles, 606 So.2d 750, 753-54 (Fla. 5th DCA 1992).

Even though no drugs were found in the car, such that the currency could be traced to a specific transaction, the totality of the circumstances amply established probable cause to believe there was a nexus between the currency and illegal narcotics activity. As such, there was probable cause for the forfeiture. See State, Dep’t of Highway Safety & Motor Vehicles v. Holguin, 909 So.2d 956 (Fla. 3d DCA 2005) (concluding that State met preliminary burden of establishing probable cause based in part on trooper’s testimony that he detected smell of burned marijuana, driver admitted smoking marijuana earlier, and $17,600 was rolled into packs of bills segregated by denomination); Charles, 606 So.2d 750 (concluding probable cause was shown by peculiar container used to transport unusually large amount of currency, packaged in manner unique to drug dealers in officers’ experience, by people with criminal records including drug offenses, who also possessed small amount of drugs in addition to currency). Accordingly, we reverse.

Reversed and remanded for further proceedings.

SALCINES and VILLANTI, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Betty Sue PHILLIPS, n/k/a Betty Sue MacBride, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-881.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Betty Sue Phillips appeals an order imposing upon her more than fifteen thousand dollars in costs of investigation, payable to the Florida Department of Law Enforcement and the United States Postal Service. The order was entered after she pleaded guilty to one count of criminal use of personal identification information, i.e., identity theft, in violation of section 817.568(2)(a), Florida Statute (2003), a third-degree felony. We reverse the order imposing costs of investigation because there is insufficient evidence to support the amount ordered.

The facts supporting the charge against Ms. Phillips illustrate a growing problem in our increasingly high-tech society. Sometime in February 2004, two individuals burglarized the Haines City Post Office. Numerous checks belonging to post office customers were stolen and later fenced to a third person who, in turn, distributed the checks to Ms. Phillips and others. Additionally, the three helped Ms. Phillips to create a false identification card bearing her picture but containing the name of a victim of the check theft. Ms. Phillips then went to several stores where, using the false identity, she wrote checks on the victim’s account totaling $2016.16.

Ms. Phillips admitted her involvement in the falsified check passing scheme to investigators, and in August 2005, the court accepted her plea to the charge.

In total, the identity theft ring consisted of only six people. Regarding Ms. Phillips, the prosecutor acknowledged that she was a minor player who did not participate in the post office burglary. Additionally, the prosecution advised the court that Ms. Phillips aided the State’s case against the ring’s three major players. As part of her sentence, the prosecutor sought the total cost of the investigation, including the postal service’s investigation into the burglary and the State’s investigations of the fence and the two other check passers.

The court sentenced Ms. Phillips to four years’ incarceration and imposed court costs, cost of prosecution, and $2016.16 in restitution. At this sentencing hearing, however, the court expressed concern that the investigative costs sought — over thirty-three thousand dollars — were disproportionate to Ms. Phillips’ level of involvement in the scheme or the minimal investigative efforts directed toward her by the FDLE and the postal inspector. The prosecutor offered to refigure the amount to allay the court’s concerns, and in response the court postponed a final decision on this one point, stating that it would retain jurisdiction for sixty days to determine the amount of investigative costs.

At the hearing, in January 2006, the trial court, unfortunately, was not provided evidence of the investigative costs. To support the claim for over fifteen thousand dollars in investigative costs, the prosecutor obtained affidavits from unspecified individuals. The court told defense counsel that it would hear any evidence the defense had to dispute any amount contained in the affidavits and would hold an eviden-tiary hearing on any cost in dispute. Defense counsel had no evidence or testimony to discredit the affidavits but argued that the affidavits were insufficient to support an order for investigative costs and requested that the amount be set at zero. The trial court was not persuaded and entered the order on appeal. In so ordering, the court erred.

This court’s record of the trial court’s proceedings does not contain the affidavits supporting the amount ordered. This severely hampers appellate review and is probably due to the fact that the affidavits were never entered into evidence. Before a court can impose an order on costs, it must have competent evidence of those costs. See Tory v. State, 686 So.2d 689, 694 (Fla. 4th DCA 1996) (‘Where appellant has objected to the proper amount of costs to be ordered, section 939.01(6), Florida Statutes, requires the matter to be resolved by the court by a preponderance of the evidence.”). “The burden of demonstrating the amount of costs incurred is on the state attorney.” § 938.27(4), Fla. Stat. (2003). Although the affidavits were mentioned at the January 2006 hearing, the transcript reveals that the prosecutor never offered them nor were they admitted into evidence. We do not put form over substance in requiring that this evidence be entered in the record. Until such evidence is offered for the court’s consideration, defense counsel has nothing to object to.

Because the trial court was without evidence of any amount of investigative costs, it erred by entering an order imposing an award of those costs upon Ms. Phillips. See Howard v. State, 920 So.2d 764, 765 (Fla. 2d DCA 2006) (reversing imposition of cost of prosecution because State failed to document its request for costs); Hill v. State, 845 So.2d 310, 310 (Fla. 2d DCA 2003) (reversing award of investigative costs where State concedes error because of failure to document its request for costs.)

We reverse the order on appeal and remand with instructions to hold a new hearing.

KELLY and CANADY, JJ„ Concur.

      . We leave for another time whether affidavits are properly admissible in this type of hearing and whether such affidavits could provide competent, substantial evidence of the reasonable costs of investigation, given the defendant’s inability to cross-examine an affidavit.

      . Section 939.01 since been renumbered section 938.27. Ch. 97-271, § 21, at 4993, Laws of Fla.


author: LaROSE, Judge.

text:
    Julio Cesar CORDOVA, Appellant, v. Rick J. JOLCOVER, Appellee.
    No. 2D06-623.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Hilda Piloto and Carlos F. Gonzalez of Arnstein & Lehr LLP, Miami, for Appellant.
    Esmond J. Lewis of Pavese Law Firm, Cape Coral, for Appellee.
   LaROSE, Judge.

Julio Cesar Cordova appeals a trial court order denying his motion to vacate a default judgment and the subsequent amended final judgment entered against him. Mr. Cordova argues that the trial court lacked personal jurisdiction over him because he was not served with process at his usual place of abode as required by section 48.031, Florida Statutes (2004). Because Mr. Cordova presented clear and convincing evidence that he was not served properly, we reverse.

Background

In November 2004, Mr. Cordova listed a parcel of residential property for sale with Del Prado Realty, Inc. Richard J. Jolcover claims that Mr. Cordova agreed to sell him the property through the listing broker. No sale ever occurred. Mr. Cordova now contends that his alleged signature on the purchase and sale agreement was forged.

Mr. Jolcover sued Mr. Cordova for breach of contract and specific performance. The process server purported to serve Mr. Cordova with the summons and complaint on March 4, 2005, by leaving them with Mr. Cordova’s estranged wife, Betty Cabinallas, at her Coral Gables home. The return of service noted that Mr. Cordova had left the United States. When Mr. Cordova did not answer the complaint, Mr. Jolcover secured a default judgment. On June 27, 2005, the trial court granted a final judgment for specific performance, attorney’s fees, and costs.

Subsequently, Mr. Jolcover sought permission to deposit the purchase price into the court registry and moved for an amended final judgment transferring title to him. Before the trial court ruled on that motion, Mr. Cordova appeared, through counsel, and moved to quash service of process and to vacate the default judgment.

Mr. Cordova submitted an affidavit stating that he was a Peruvian citizen, that he customarily and regularly resided in Peru, that he had not lived with Ms. Cabinallas since 2002, and that he was not in the United States when process was left with Ms. Cabinallas. Mr. Cordova presented his Peruvian passport confirming that he lived in Peru. He also provided a certificate of residence issued by a Peruvian police department certifying his residence to be Lima, Peru.

Ms. Cabinallas also submitted an affidavit. She stated that Mr. Cordova had lived in Peru for the last three years. She also stated that the process server gave her legal papers but did not inform her of their contents. She stated that she wrote to the trial court clerk to advise that Mr. Cordova did not reside with her. In opposition to Mr. Cordova’s motion, Mr. Jol-cover submitted an affidavit from Mr. Cordova’s realtor stating that the listing agreement identified Mr. Cordova’s address as Ms. Cabinallas’s home.

The trial court denied Mr. Cordova’s motion to quash and to vacate. It later entered an amended final judgment for specific performance.

Analysis

Section 48.031(l)(a), Florida Statutes (2004), provides for service of process:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

Because Mr. Cordova was not served personally, any substituted service must have been made at his usual place of abode. See Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla.2001). “Usual place of abode” means “the place where the defendant is actually living at the time of service.” Id. (citing State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940)). Although the listing agreement contained a Coral Gables address for Mr. Cordova, an address is not synonymous with usual place of abode. One has but one usual place of abode. Id.

The process server left the summons and complaint with Ms. Cabinallas. ‘[A] process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.’ ” Thompson v. State, Dep’t of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004) (quoting Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996)); Emmer v. Brucato, 813 So.2d 264, 266 (Fla. 5th DCA 2002). On its face, the affidavit of service raised a concern as to Mr. Cordova’s usual place of abode. As the process server noted, Ms. Cabinallas “stated Husband left the country.” The return of service leaves doubt as to Mr. Cordova’s residential status in Coral Gables at the time of the purported service of process.

Moreover, in seeking to vacate the default judgment, Mr. Cordova did more than simply deny that service of process was adequate. He submitted affidavits and other evidence replete with facts demonstrating that service was deficient. See Nat’l Safety Assocs., Inc. v. Allstate Ins. Co., 799 So.2d 316, 317 (Fla. 2d DCA 2001); Telf, 671 So.2d at 819. Accordingly, we must conclude that Mr. Cordova presented clear and convincing evidence that he was not served at his usual place of abode. See, e.g., S.H. v. Dep’t of Children & Families, 837 So.2d 1117, 1118 (Fla. 4th DCA 2003); Gonzalez v. Totalbank, 472 So.2d 861, 864 n. 1 (Fla. 3d DCA 1985). The trial court should have granted Mr. Cordo-va’s motion to quash and to vacate. Because the amended final judgment was entered without valid service of process on Mr. Cordova, it cannot stand. See Torres v. Arnco Constr. Inc., 867 So.2d 583, 587 (Fla. 5th DCA 2004).

Conclusion

We reverse the trial court’s order denying Mr. Cordova’s motion to quash service and vacate the default judgment, vacate the amended final judgment, and remand to the trial court for further proceedings.

Reversed, vacated, and remanded.

CASANUEVA and STRINGER, JJ., Concur.


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    HOLLAND ELECTRONICS LLC, Appellant, v. VITAL SYSTEMS ELECTRONICS, INC., Appellee.
    No. 2D06-2030.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.

      Jason D. Barlow of Marcadis & Associates, P.A., Tampa, for Appellant.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, for Appellee.
   NORTHCUTT, Judge.

After a default final judgment was entered in favor of Holland Electronics, Vital Systems Electronics, Inc., convinced the circuit court to vacate the earlier clerk’s default. It then used that order to have the final judgment vacated. We reverse.

Holland served Vital Systems with a two-count complaint alleging claims for account stated and open account. After Vital Systems failed to file an answer for nearly four months, Holland obtained a clerk’s default. The circuit court entered a final default judgment in Holland’s favor several days later.

On the day the final judgment was entered, Vital Systems served a motion to vacate the clerk’s default under Florida Rule of Civil Procedure 1.500(d). As grounds for relief, Vital Systems asserted excusable neglect based on its financial inability to retain counsel, diligence in seeking to have the default vacated, and a meritorious defense. Vital Systems also alleged that there were ongoing negotiations between the parties to resolve the dispute. The circuit court set aside the default, finding that Vital Systems had not been grossly negligent and that it had a meritorious defense.

Vital Systems later moved for relief from the final judgment under Florida Rule of Civil Procedure 1.540(b)(4), contending that the judgment was void because it was based on a default that had been set aside. On this basis alone, the circuit court entered an order vacating the judgment.

In this case the dog has been wagged by the tail. The final judgment was not voided by the subsequent order vacating the clerk’s default; it was the other way around. Upon rendition of the final judgment, the circuit court lost jurisdiction over the case except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540. Baker v. Baker, 920 So.2d 689, 691 (Fla. 2d DCA 2006). The earlier clerk’s default was an interlocutory order that merged into the final judgment. See Barnett v. Barnett, 718 So.2d 302 (Fla. 2d DCA 1998). Rule 1.500(d) would have permitted the court to set aside the default only if it had first set aside the final judgment, thus causing the interlocutory order to “spring back” into existence. Barnett, 718 So.2d at 303-04. Having failed to first set aside the judgment, the court lacked jurisdiction to set aside the default. Therefore, the order setting aside the default was void, and, as such, had no bearing on the validity of the judgment.

Moreover, Vital Systems failed to establish excusable neglect in the first instance. A defendant’s failure to retain counsel is not excusable neglect. Goldome v. Davis, 567 So.2d 909, 910 (Fla. 2d DCA 1990). Vital Systems argues on appeal that it is improper for one party to take advantage of settlement negotiations to lull another party into a default. We do not disagree with the proposition of law. See Hully v. Hully, 653 So.2d 1138, 1140 (Fla. 2d DCA 1995) (“[T]he default procedure is not intended to discourage settlement discussions before an answer is filed, nor is it intended to allow a plaintiff to take undue advantage of a defendant who engages in settlement efforts.”). But the record contains no allegation, much less proof, that this occurred in the present case. See Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (noting requirement for sworn proof to establish excusable neglect). Although Vital Systems alleged that it had engaged in settlement discussions with Holland, it never asserted that Holland misled it into thinking that responsive pleadings were not necessary, and it never offered sworn proof to establish excusable neglect. Accordingly, we reverse the order setting aside the final judgment.

Reversed.

WHATLEY and SILBERMAN, JJ., Concur.


text:
    In the interest of J.S., a child. J.S., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D06-461.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2006.
    Robert G. Hancock, Bradenton, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

J.S., the father, appeals from an order adjudicating his daughter, J.D.S., dependent. Because the State correctly concedes that the evidence adduced at trial was legally insufficient to support the adjudication of dependency, we reverse.

Reversed.

FULMER, C.J., and WHATLEY, J., Concur.