author: SALCINES, Judge.

text:
    Michael Ramon WILLIAMS, DOC # 554513, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4734.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2007.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Michael Ramon Williams entered into a negotiated plea concerning several drug-related offenses in three separate cases. He appeals from the judgments and sentences imposed thereon. We affirm in all respects without discussion except for a single preserved sentencing error upon which we reverse.

During the pendency of this appeal, Williams filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error concerning the written sentence in circuit court case number 04-CF-4028 for count two, possession of cocaine. At sentencing, the trial court orally pronounced that Williams’ sentence for that conviction was time served. The written sentence, however, reflects a sentence of 78.2 months’ imprisonment.

The trial court did not rule on the rule 3.800(b)(2) motion within sixty days, thus constructively denying it. See Saulsberry v. State, 929 So.2d 664, 664 n. 1 (Fla. 4th DCA 2006). Accordingly, we reverse the sentence as to count two in circuit court case number 04-CF-4028 and remand for the entry of an amended sentence that conforms to the oral pronouncement. See id. at 664.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CANADY, JJ., Concur.

      . In circuit court case number 04-CF-1850 (for an offense occurring on January 29, 2004), Williams entered a guilty plea to one count of possession of cocaine with intent to sell within 1000 feet of a church in violation of section 893.13(l)(e)(l), Florida Statutes (2003), a first-degree felony.
      In circuit court case number 04-CF-2073 (for offenses occurring on February 2, 2004), Williams entered a guilty plea to the following three counts: (1) delivery of cocaine in violation of section 893.13(l)(a), Florida Statutes (2003), a second-degree felony; (2) possession of cocaine in violation of section 893.13(6)(a), Florida Statutes (2003), a third-degree felony; and (3) possession of cocaine with intent to sell in violation of section 893.13(l)(a), Florida Statutes (2003), a second-degree felony.
      In circuit court case number 04-CF-4028 (for offenses occurring on January 20, 2004), Williams entered a guilty plea to the following two counts: (1) delivery of cocaine within 1000' of a church in violation of section 893.13(l)(e)(l), Florida Statutes (2003), a first-degree felony, and (2) possession of cocaine in violation of section 893.13(6)(a), Florida Statutes (2003), a third-degree felony.
      Williams stipulated that he qualified to be sentenced as a habitual offender and his plea included negotiated sentences in each case.


source: Caselaw Access Project

author: FARMER, J.

license: Public Domain

text:
    Lowen ESPINUEVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3562.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Corrected Opinion

FARMER, J.

The State seeks clarification of our opinion, and the defendant writes informally to advise that the actual charges were attempted felony murder and attempted armed robbery. We grant the motion, correct the statement of the charges, and substitute this corrected opinion for the original.

When defendant was arrested by Coral Springs police for his participation in a bank robbery, almost immediately thereafter he was arrested by the FBI as well to answer for federal criminal charges arising from the same episode. Meanwhile, the State of Florida proceeded to file charges against him, including two counts of attempted felony murder, two counts of attempted armed robbery, and one count of grand theft. More than two years later he filed a motion for speedy trial discharge, arguing that the speedy trial time had long since passed. The trial court properly denied the motion, citing the rule’s exception from the speedy trial requirement when the defendant is in federal custody. See, Fla. R.Crim. P. 3.191(e) (providing that defendant is not entitled to benefit of speedy trial rule until federal custody ends and defendant is returned to Florida custody); see also, State v. Mitchel, 768 So.2d 1223, 1224 (Fla. 3d DCA 2000), rev. denied, 804 So.2d 329 (Fla.2001) (provisions of rule 3.191(e) apply even when defendant was in state custody before being taken into federal custody). We therefore affirm his conviction.

Defendant’s plea was conditioned on his right to appeal the speedy trial issue. At sentencing he did not object to the multiple sentences on double jeopardy grounds, as he now seeks to do for the first time on appeal. The State argues that this sentencing issue is not preserved for appeal. See, Novaton v. State, 634 So.2d 607, 608 (Fla.1994) (holding that defendant waived claim of double jeopardy as to sentences where plea bargain consented to separate sentences on each count). In this instance, however, the plea agreement did not include any understanding as to sentencing. At the plea hearing, defendant was asked to acknowledge that there was no agreement as to sentencing, and the trial court duly noted that there were “no promises, representations or guarantees as to sentencing.” We therefore conclude that the double jeopardy issue as to the sentence was not waived by the plea. We therefore reverse and return the case to the trial court to consider, in the first instance, defendant’s contention that the sentences for the armed robbery charges imposed violate the double jeopardy protection and, if necessary, for resentencing as to those charges only.

Conviction affirmed; Reversed as to sentences for armed robbery.

GUNTHER and GROSS, JJ., concur.


author: PER CURIAM.

text:
    Michael BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5888.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2007.
    Michael Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

BROWNING, C.J., WOLF, and KAHN, JJ., Concur.


text:
    Vincent L. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6342.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2007.

      Vincent L. Davis, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


author: CANADY, Judge.

text:
    Joseph DeLEO, Appellant, v. WACHOVIA BANK, N.A., Appellee.
    No. 2D06-580.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2007.

      Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for Appellant.
    Peter E. Shapiro and Temple Fett Kearns of Shutts & Bowen LLP, Fort Lauderdale, for Appellee.
   CANADY, Judge.

In this appeal, Joseph DeLeo appeals the trial court’s nonfinal order compelling DeLeo to answer questions in aid of execution of a judgment obtained by Wachovia Bank, N.A. Based on the Fifth Amendment privilege against self-inerimi-nation DeLeo argued that he should not be compelled to answer the questions at issue. Because we conclude the trial court abused its discretion by failing to rule on each individual question for which DeLeo asserted the Fifth Amendment privilege, we reverse and remand.

I. Background

After Wachovia obtained its judgment against DeLeo, it conducted a deposition in aid of execution of judgment. During the deposition, DeLeo invoked the Fifth Amendment in declining to respond to 178 questions. Wachovia then moved to compel DeLeo to respond. After a hearing before a magistrate on the motion to compel, the magistrate ordered DeLeo to submit an affidavit setting forth a “reasonable basis to demonstrate the danger of incrimination that would result from his answers to the questions.”

DeLeo submitted his affidavit for in camera review, and thereafter the magistrate issued a recommended order determining that (1) certain objected-to questions had already been answered, (2) DeLeo should be compelled to answer certain questions, and (3) on the basis of a Fifth Amendment privilege, DeLeo should not be compelled to answer certain other questions. Wachovia then filed exceptions to the recommended order, arguing that the Fifth Amendment should not bar any of the questions posed.

The trial court conducted a hearing for which there is no transcript available. However, the parties entered into a stipulated statement of proceedings which states that although the court heard argument from counsel' and considered the pleadings, it “did not examine the questions to which objections were posed in the Defendant’s ... deposition, weighing Defendant’s invocation of his Fifth Amendment privilege against certain questions.”

Ultimately, the trial court entered its nonfinal order granting Wachovia’s exceptions and directing DeLeo to answer all questions posed. The trial court attempted to fashion a form of protection for DeLeo’s Fifth Amendment privilege by ordering that the answers “shall be solely used in aid of execution by [Wachovia] and not released to any other party.” The order also contained the statement that: “The court acknowledges Defendant’s objections to this Order and recognizes Defendant’s answers will be made under compulsion.” It is from this order that DeLeo appeals.

II. Analysis

DeLeo argues that although the magistrate complied with her duty to review each question individually to determine whether the Fifth Amendment privilege applied, the trial court granted Wachovia’s exceptions to the recommended order without conducting such an individualized analysis. We agree that the trial court was required to analyze each question to which DeLeo objected to determine if the Fifth Amendment privilege applied. Based on the record before us, we conclude that the trial court failed to do so.

DeLeo was entitled to invoke the Fifth Amendment privilege if he had “reasonable grounds to believe that his answers would provide ‘a link in the chain of evidence needed to prove a crime against him.’” Novak v. Snieda, 659 So.2d 1138, 1140 (Fla. 2d DCA 1995) (quoting Rainerman v. Eagle Nat’l Bank, 541 So.2d 740, 741 (Fla. 3d DCA 1989)). Because Wacho-via sought to compel DeLeo to answer the questions to which he posed an objection, it was necessary to conduct a hearing. See id. at 1141. At such a hearing, “[i]f the self-incriminating nature of the question is not apparent, then [the person asserting the privilege] must show the court the danger of incrimination that could result from the answer.” Id.

To sustain the privilege, it need only be evident from the implications of the questions, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. The privilege must be sustained if it is not perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.

Raass v. Borgia, 644 So.2d 121, 122 (Fla. 2d DCA 1994) (emphasis removed) (internal quotation marks omitted).. “The trial court then must rule on each individual question to which [the person] invoked the Fifth Amendment and order which questions [the person] must answer and which questions, if any, are protected by the Fifth Amendment.” Novak, 659 So.2d at 1141 (emphasis added).

The case law is predicated on the understanding that a litigant’s Fifth Amendment rights cannot be adequately protected by the simple expedient of an order — like the order at issue here — barring disclosure of the answers to questions with respect to which the Fifth Amendment has been invoked.

A protective order in a civil case ... allows the response, or at least information derived from the response, to spill out at trial, appeal, or some other hearing, where it could be discovered and later used by prosecutors. No protective order could provide the absolute protection [required by the Fifth Amendment, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972),] against direct or indirect use by prosecutors. The court can hardly hold all proceedings ... in secret ... and prevent all participants from supplying information to the government.

Robert Heidt, The Conjurer’s Circle — The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1095 (1982). Accordingly, “it is clear that the fifth amendment’s proscription of forced self-incrimination cannot be circumvented by the issuance of a ... protective order.” Andover Data Servs. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir.1989); see also Pillsburg Co. v. Conboy, 459 U.S. 248, 263-64, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (holding “that a deponent’s civil deposition testimony ... without duly authorized assurance of immunity at the time ... may not be compelled over a valid assertion of his Fifth Amendment privilege”) (footnote omitted).

Here, the first fact-finder — the magistrate — complied with the requirements set forth in Novak and Raass by (1) conducting a hearing on Wachovia’s motion to compel, (2) requiring DeLeo to provide an affidavit setting forth his reasons for asserting the Fifth Amendment privilege, (3) determining whether there was a possibility that DeLeo’s answers could be used as a “link in the chain of evidence” against him, and (4) ruling on each individual question with respect to which DeLeo had invoked the Fifth Amendment.

The trial court, on the other hand, failed to review each question on an individual basis to determine whether the Fifth Amendment privilege was properly applied by the magistrate. The failure to do so not only violated the requirements set forth in Novak and Raass but also constituted a breach of the trial court’s duty to review the entire record since Wachovia filed exceptions to the magistrate’s report. See Brill v. Brill, 905 So.2d 948, 955 (Fla. 4th DCA 2005); Anderson v. Anderson, 736 So.2d 49, 50-51 (Fla. 5th DCA 1999) (both holding that when a party files exceptions to a master’s report, the trial court is obligated to review the entire record to ascertain whether findings are supported by competent, substantial evidence and whether the master properly applied the law to the facts).

Wachovia argues that the declaration in the stipulated statement of proceedings that the trial court “did not examine the questions to which objections were posed ... weighing Defendant’s invocation of his Fifth Amendment privilege against certain questions” means only that the trial court did not review the questions at the hearing and does not mean that the trial court did not review the questions at some other time. The stipulated statement contains no such limitation, and there is nothing in the context that provides any support for Wachovia’s interpretation. We also reject Wachovia’s contention that the statement that the trial court considered the pleadings establishes that the trial court complied with its duty to review the entire record.

III. Conclusion

In granting Wachovia’s exceptions, the trial court failed to review the entire record — i.e., it failed to review each individual question to determine whether the Fifth Amendment privilege was properly applied by the magistrate — and thereby abused its discretion. Accordingly, we reverse and remand for proceedings in conformance with this opinion.

Reversed and Remanded.

CASANUEVA, J., and RONDOLINO, ANTHONY, Associate Judge, Concur.

      . This court has jurisdiction to hear this appeal because the order on review is a nonfinal discovery order entered after final order which does not suspend rendition of a trial court order. See Fla. R.App. P. 9.130(a)(4); HCA Health Servs. of Fla., Inc. v. Hillman, 870 So.2d 104, 106 n. 1 (Fla. 2d DCA 2003); Largo Hosp. Owners, Ltd. v. Gorman, 408 So.2d 597, 598 (Fla. 2d DCA 1981). But see Forman v. Great Am. Resorts of Fla., 929 So.2d 1089, 1090 (Fla.4th DCA 2006) (holding that postjudgment discovery order was not appealable under rule 9.130(a)(4) because the proceeding in aid of collection would culminate in an order either granting or denying relief requested by judgment creditor and appellant would then have the right to appeal that final order).


author: LaROSE, Judge.

text:
    Torrie SPRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3448.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2007.
   LaROSE, Judge.

Torrie Spry appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We reverse and remand for further proceedings.

A jury convicted Mr. Spry of possession of cocaine within 1000 feet of a child care facility with intent to sell. The trial court sentenced him to ten years in prison, followed by five years of drug offender probation. We previously affirmed the conviction and sentence. See Spry v. State, 912 So.2d 384 (Fla. 2d DCA 2005).

Now, Mr. Spry claims that his trial counsel was ineffective for failing to object to a police officer’s testimony regarding Mr. Spry’s intent to sell cocaine. Although he attached no transcript to his motion, Mr. Spry claims that the officer testified as follows:

Q. In your experience, is this an amount that someone wohld have for personal use? Or is this a larger amount than that?
A. Yes, that’s a much larger amount than I have ever seen anyone for personal use. [sic]
Q. What would the normal personal use be?
A. Maybe one or two pieces at the most.
Q. That somebody would carry around with them?
A. Exactly.
Q. So, is it fair that if someone was carrying that in that macadamia can that he was either going to sell it or distribute it in some fashion?
A. Yes.

According to Mr. Spry, the officer did not see him trying to sell or deliver the cocaine and nothing about the packaging of the cocaine suggested that Mr. Spry intended to sell or deliver the contraband. Mr. Spry claims that the officer’s testimony addressing the subjective element of Mr. Spry’s intent invaded the jury’s province. Mr. Spry claims that had trial counsel objected to the officer’s testimony and moved for a mistrial, the trial court would have granted relief. Alternatively, Mr. Spry claims that if the trial court overruled such an objection and denied a mistrial, this court on direct appeal would have reversed and remanded for a new trial. Essentially, Mr. Spry maintains that without the officer’s improper testimony, the evidence would have supported only a conviction for cocaine possession.

In support of his motion, Mr. Spry relies on Lewis v. State, 754 So.2d 897, 902 (Fla. 1st DCA 2000), where the court ruled that an officer’s testimony that twelve rocks of cocaine constituted an amount “most definitely for sale” exceeded the limitations of expert testimony and invaded the province of the jury. For additional support, Mr. Spry looks to Luis v. State, 851 So.2d 773 (Fla. 2d DCA 2003) (determining that expert testimony concerning the defendant’s intent crosses the line from providing expert testimony to simply telling the jury how to decide the case); Prescott v. State, 753 So.2d 568 (Fla. 4th DCA 1998) (concluding that experts in street-level narcotics sales were properly allowed to testify about whether cocaine and cannabis confiscated from defendant’s apartment were intended for personal use or for sale, based on amount and packaging); Scarlett v. State, 704 So.2d 615 (Fla. 4th DCA 1997) (holding that detective, who was qualified as expert in area of street-level marijuana possession and sales, was properly allowed to testify regarding whether quantity and packaging of drugs indicated intent to sell, where such information was not within common knowledge of jurors and purpose of testimony was not to present prejudicial, misleading inferences to jury); and Brooks v. State, 700 So.2d 473 (Fla. 5th DCA 1997) (finding arresting officer, who was experienced in narcotics investigations and arrests, could properly testify as expert witness regarding packaging practices of drug dealers and users and the amounts of drugs typically carried by each group but was properly instructed not to testify regarding defendant’s intent to sell cocaine).

In its summary denial of Mr. Spry’s motion, the postconviction court, relying on Luis v. State, 851 So.2d at 777, stated that “an expert witness may give opinion testimony asserting that a defendant had the intent to sell drugs.” Luis does not go so far. Rather, Luis allows an expert to testify about whether the circumstances of possession are consistent or inconsistent with possession for sale. The expert may not opine on the accused’s intent. Luis, 851 So.2d at 778.

Numerous cases have held that a qualified expert witness may testify that the quantity and packaging of drugs and the circumstances surrounding their possession are “consistent with” possession for sale or are “inconsistent with” possession for personal use. See, e.g. Damen v. State, 793 So.2d 106, 108 (Fla. 2d DCA 2001); Adams v. State, 696 So.2d 773 (Fla. 2d DCA 1996); Melton v. State, 824 So.2d 948 (Fla. 1st DCA 2002); Ramos v. State, 798 So.2d 4, 6 (Fla. 4th DCA 2001); Bruce v. State, 616 So.2d 504 (Fla. 3d DCA 1993). However, there is a split of authority as to whether a qualified expert may testify to the defendant’s actual intent. The First District has held that it is improper for an expert to testify that the defendant intended to sell the drugs because that testimony simply tells the jury how to decide the case rather than helping the jury reach its own decision on intent. See Melton, 824 So.2d at 951; Lewis v. State, 754 So.2d 897, 902 (Fla. 1st DCA 2000). To the contrary, the Third and Fourth Districts have allowed qualified experts to testify to the defendant’s intent. See Prescott v. State, 753 So.2d 568, 569 (Fla. 4th DCA 1998) (holding that there was no abuse of discretion in allowing an expert witness to testify that the drugs were intended for sale rather than personal use); Scarlett v. State, 704 So.2d 615, 616 (Fla. 4th DCA 1997) (same); Bruce, 616 So.2d at 504 (same).

Id. at 777-78.

Our decision in Luis makes clear “that expert testimony concerning the defendant’s intent crosses the line from providing expert testimony to simply telling the jury how to decide the case.” Id. at 778. To allow otherwise would allow “expert testimony concerning a defendant’s intent ... when [ ] proffered [by an] expert [who] has no expertise in the inner workings of the defendant’s mind.” Id. at 778 (citing Damen v. State, 793 So.2d 106 (Fla. 2d DCA 2001) (noting with approval the witness’s statement that he was not qualified to offer testimony concerning the inner workings of the defendant’s mind and so could not testify as to the defendant’s actual intent)).

Based on the limited record before us, we cannot determine whether the officer’s testimony, in context, was permitted by Luis. Accordingly, we are compelled to reverse and remand for further proceedings. On remand, the postconviction court should first determine whether the officer testified as a qualified expert concerning (1) whether the circumstances of the case are consistent with possession for sale or for personal use, or (2) whether the officer testified about Mr. Spry’s actual intent.

If the postconvietion court determines that the officer testified as a qualified expert concerning whether the circumstances of the case are consistent with possession for sale or for personal use, it may, again, summarily deny Mr. Spry’s claim and attach those portions of the record that conclusively refute his claim. However, if the postconviction court determines that the officer testified about Mr. Spry’s actual intent, it must determine whether trial counsel’s performance was deficient and prejudiced Mr. Spry. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this scenario, the postconviction court may hold an evidentiary hearing or, if it should again summarily deny Mr. Spry’s claim, it must attach .those portions of the record that conclusively refute his claim.

Reversed and remanded for further proceedings.

WHATLEY and DAVIS, JJ., Concur.


author: KLEIN, J.

text:
    Tommy HOLCOMB, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3669.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West' Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted on several charges of burglary and grand .theft. He argues that the court erred in instructing the jury on the inference which can be drawn from the possession of recently stolen property, in regard to an item which was in the bed of the pickup truck he was driving. We reject his argument that it is only actual possession, and not constructive possession, which warrants the instruction.

Appellant was the driver of a pickup truck on the property of a marina, in an area not open to .the public, when a security guard confronted another man climbing out of a boat. The man then got in the cab of the truck and appellant started to drive away, but had to stop when he reached a locked gate. The passenger then got out and went over the fence, but appellant was arrested. The boat, and another boat in the same area, had been damaged, and a GPS system from one of the boats was in the bed of the pickup truck. There was no evidence that the man who jumped in the cab of the truck had placed the GPS in the truck bed.

Over appellant’s objection the trial court instructed the jury, under Florida Standard Jury Instruction (Criminal) 14.1, that possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession knew or should have known that the property was stolen. Appellant argues here, as he did below, that in order for this instruction to be given, appellant had to be in “exclusive and actual possession” of the stolen property. He argues that in this case there was only constructive possession, which he contends is insufficient to support the giving of the instruction.

Appellant primarily relies on Garcia v. State, 899 So.2d 447 (Fla. 4th DCA 2005), in which we reversed convictions of burglary of a dwelling and grand theft because there was insufficient evidence. In Garcia the appellant was a passenger in a van, along with two other passengers and a driver. The van had been used in a burglary ten minutes earlier. Although there was evidence to connect the others to the burglary, there was no evidence the defendant had participated in the burglary or had been in the van at the time of the burglary. We concluded that the mere fact that appellant was in the van containing stolen property was insufficient to prove that appellant was guilty of burglary or grand theft. Appellant relies, for his argument that possession must be actual, on our statement in Garcia to the effect that the inference which arises from the possession of recently stolen property applies “only when the state has proven that the defendant actually possessed the property.”

We conclude that our use of the word “actually” in Garcia was not in the sense of the legal distinction between actual and constructive possession, but was rather used in the sense of “in fact” or “indeed.” After using the term we went on to explain:

Here, the only evidence of appellant’s possession of the victim’s recently stolen property was his presence, along with three other people, in the van containing the stolen items. Testimony as to location of the items in the van was conflicting. Yet, even assuming that the property was in the back of the van where appellant was seated, we note that no evidence was presented that appellant had exclusive possession of the stolen property or the ability to exercise any dominion and control over it. Thus, proof that appellant was in the van with the recently stolen property, under these circumstances, is insufficient evidence to support the inference the he committed the burglary and theft, [emphasis added]

Id. at 451. The emphasized language above is consistent with constructive, not actual, possession. We would not have used that language if we had intended to limit the inference to actual possession.

The present case is distinguishable from Garcia, because in this case the proof was that appellant was at the scene of the crime and was the sole occupant and driver of the truck carrying the stolen property. Lee v. State, 835 So.2d 1177, 1179 (Fla. 4th DCA 2002) (“The inference that may be drawn from sole occupancy of a vehicle in which contraband is found, without more, is sufficient to prove a prima facie case of [constructive] possession.”).

Appellant acknowledges that in Ferguson v. State, 920 So.2d 838 (Fla. 4th DCA 2006), this court stated that Walker v. State, 896 So.2d 712, 720 n. 5 (Fla.2005), held that constructive possession of recently stolen property is sufficient to support the inference instruction. He points out correctly, however, that the word “constructive” is not found in Walker, and argues that case stands only for the proposition that joint possession is sufficient. As a result, he argues, the state is entitled to the instruction only where it can prove actual possession. Walker, however, cited Scobee v. State, 488 So.2d 595 (Fla. 1st DCA 1986), for the proposition that joint possession is sufficient for the instruction. In Scobee the court affirmed the giving of the instruction where the defendant had been at the scene of the theft and the stolen goods were in the station wagon he was driving when he was arrested.

In Walker the issue was not whether the facts supported the instruction, but rather whether the instruction was an impermissible comment on the evidence. The defendant in Walker claimed that he was not aware that the goods were stolen and he was merely helping unload the stolen property from his car. Our supreme court observed in Walker that although the defendant had not been in direct possession of the stolen goods when he was arrested, because they had already been unloaded from the car, there was joint possession which was sufficient to warrant the instruction. Id. at n. 5. Appellant’s interpretation of Garcia, which is that it is only actual or not constructive possession which gives rise to the inference, is accordingly contrary to our case law as well as our standard jury instructions.

We accordingly reject appellant’s argument that the instruction was improper, as well as his JOA argument, and affirm.

HAZOURI and MAY, JJ., concur.

      . In our research, we discovered that there are some cases which involved non-drug offenses, such as possession of a firearm, which have included, as one of the elements of possession, knowledge of the “illicit nature of the contraband.’’ Blackshear v. State, 771 So.2d 1199 (Fla. 4th DCA 2000) (citing Williams v. State, 724 So.2d 1214 (Fla. 4th DCA 1998)); Gonzalez v. State, 832 So.2d 898 (Fla. 3d DCA 2002); Wilson v. State, 776 So.2d 347 (Fla. 5th DCA 2001); Walker v. State, 733 So.2d 564 (Fla. 2d DCA 1999). Knowledge of the illicit nature of the thing, however, is not an element of the crimes of possession of things such as firearms or other non-drug contraband.


text:
    Carl DORELIEN, Appellant, v. Marie Jeanne JEAN, Appellee.
    No. 1D05-3546.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.
    Kurt R. Klaus, Jr., Miami; Christian N. Scholin of Molliea & Scholin, PA, West Palm Beach, for Appellant.
    Matthew J. Eisenbrandt of The Center of Justice and Accountability, San Francisco, CA; Dwayne E. Williams of Holland & Knight, LLP, Miami; Thomas E. Bishop and Elizabeth L. Bevington of Holland & Knight, LLP, Jacksonville; John Andres Thornton, Miami Beach, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s motion to dismiss, filed on October 12, 2006, as well as the appellant’s response thereto, the motion is granted and the appeal is hereby dismissed.

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Eugene LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0079.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This case is REMANDED to the circuit court for correction of the June 8, 2006, judgment to reflect that the Defendant’s conviction on Count 3, false impersonation of a law enforcement officer, is a third-degree felony. The judgment and sentence are otherwise AFFIRMED.

BARFIELD, PADOVANO, and POLSTON, JJ., concur.


text:
    Steven Douglas MONCREIFF, Appellant, v. Rebecca Schiff MONCREIFF, Appellee.
    No. 1D06-0682.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.
    Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, for Appellant.
    Thomas E. Wheeler, Jr. of Stephen T. Holman, P.A., Pensacola, for Appellee.
   PER CURIAM.

The appellant/former husband challenges a final judgment of dissolution of marriage on several grounds, only one of which merits relief. As he notes, the final judgment provides that he will pay the mortgage payments on the marital home, “as well as a monthly fee of 7% interest on the amount owed (beginning November 1, 2005) to the wife until he has refinanced the home or until May 1, 2006, whichever occurs first.” We agree that the trial court clearly intended to state that this monthly fee would be for 7% interest per annum, on the amount owed. Subject to this clarification, the final judgment of dissolution is affirmed.

ALLEN and WOLF, JJ., and ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Jerome NORTON, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION, and Rose Printing Co., Inc., Appellees.
    No. 1D06-5390.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.
    Jerome Norton, pro se, Appellant.
    Geri Atkinson-Hazleton, General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s October 18, 2006 order, the appeal is hereby dismissed for lack of jurisdiction because the notice of appeal was untimely. This dismissal is without prejudice to the appellant’s right to seek any further relief from the agency that is available. See Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA.1998).

BROWNING, C.J., WOLF and KAHN, JJ., concur.


text:
    Vera LANE, Appellant, v. SIMS PORTEX/SMITHS GROUP and Broadspire, Appellees.
    No. 1D06-5652.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2007.
    Merette L. Oweis of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellant.
    Robert J. Strunin of Walton Lantaff Schroeder & Carson, LLP, Miami, for Ap-pellees.
   PER CURIAM.

Vera Lane appeals an adverse order in a workers’ compensation matter. Because the notice of appeal appeared to have been filed in excess of 30 days after the date of mailing of the order at issue, we directed appellant to show cause why the appeal should not be dismissed as untimely. Counsel for appellant responds, explaining that although she timely prepared a notice of appeal, a clerical error on the part of her staff resulted in the notice not being delivered to a courier service for overnight delivery until after the time for initiating an appeal had already expired. We are not at liberty, however, to overlook the jurisdictional defect arising from the untimely filing in this case. Accordingly, the appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Stephen HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5728.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2007.
    Stephen Hartley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

A jury convicted Stephen Hartley of attempted robbery. He filed a timely motion for posteonvietion relief under Florida Rule of Criminal Procedure 3.850. The posteonvietion court denied relief on all grounds of his motion; some it denied summarily, some after an evidentiary hearing. We affirm the court’s decision without discussion on all grounds except one. We reverse the denial of Hartley’s claim that his counsel was ineffective for failing to ameliorate the negative effect that his admissions to prior convictions might have had on the jury. We remand for an evidentiary hearing on that claim.

In pertinent part, Hartley’s motion asserted that he had pleaded guilty or no contest to his previous charges. He claimed that his counsel was ineffective because he failed to ask the court to instruct the jury that it could not consider these convictions as substantive evidence of his guilt. He also contended that his counsel should have elicited testimony from him about his previous decisions to plead so that the jury might infer that he had decided to proceed with a trial in this case because he was not guilty. This type of testimony is admissible for the very reason Hartley asserts. See Lawhorne v. State, 500 So.2d 519, 523 (Fla.1986). On direct appeal, we have reversed a conviction based on the erroneous exclusion of such testimony. Scurry v. State, 701 So.2d 587, 588 (Fla. 2d DCA 1997); see also Bowles v. State, 849 So.2d 465, 466 (Fla. 4th DCA 2003).

Here, the postconviction court initially ruled that an evidentiary hearing was required on -this ground. But at that hearing, the court interrupted Hartley’s counsel’s attempt to present evidence in support of the claim. The court announced that it was denying the claim because “it is not and cannot be ineffective assistance of counsel to fail to ask the question as to whether or not somebody pled guilty or no contest to prior offenses.” ' In effect, the court summarily denied the claim. In Ottesen v. State, 862 So.2d 30, 31 (Fla. 2d DCA 2003), however, the defendant asserted the same issues in his postconviction motion as Hartley does here. We held that the claims were properly raised in a rulé 3.850 motion. Therefore, in this case the postconviction court erred as a matter of law when it ruled that Hartley’s claims were not cognizable.

We reverse and remand for an eviden-tiary hearing on ground nine in Hartley’s amended motion for postconviction relief.

DAVIS and CANADY, JJ., Concur.


text:
    Helen L. WOOD and Larry Willard Wood, mother and son, Appellants, v. John Eben FAIRCHILD and his wife, Joyce Wood Fairchild, Appellees.
    No. 1D06-4539.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Fred McCormack of Fred McCormack, LLC, Tallahassee, for Appellants.
    J. David House, Blountstown, and Frank A. Baker, Marianna, for Appellees.
   PER CURIAM.

Having considered the appellants’ responses to this Court’s orders dated September 20, 2006, and October 27, 2006, as well as the “Final Judgment,” entered on June 16, 2006, this appeal is hereby dismissed as premature. Staten v. Gonzalez-Falla, 855 So.2d 247 (Fla. 1st DCA 2003). Ml pending motions are, denied as moot. This dismissal is without prejudice to the appellants’ right to seek review upon final disposition of the proceedings below.

DAVIS and BENTON, JJ., and ERVIN, III, RICHARD W:, Senior Judge, concur.


text:
    INDIAN TRAIL IMPROVEMENT DISTRICT, Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS and Palm Beach County, Appellees.
    No. 4D05-4379.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Mark E. Grantham of Hunton & Williams, L.L.P., Atlanta, Georgia, for appellant.
    David L. Jordan and Leslie E. Bryson, Tallahassee, for Department of Community Affairs.
    Edward P. de la Parte, Jr., David M. Calderilla, and Nicolas Q. Porter of de la Parte & Gilbert, P.A., Tampa, and Amy Taylor Petrick, Assistant County Attorney, West Palm Beach, for Palm Beach County.
   FARMER, J.

Palm Beach County adopted a comprehensive land use plan (CLUP) in 1989. Until 2004, its plan generally did not allow the County to provide or subsidize freshwater and wastewater services to the unincorporated rural areas. In 2004, it amended its CLUP to designate the County as the service provider of freshwater and wastewater to the unincorporated portions of the county. Over the objections of a special taxing district (and others) that provided such services in unincorporated Palm Beach County, the Department of Community Affairs (DCA) has lately approved the amendment as being in compliance with the County’s chapter 163 duties and obligations. We affirm and write only to address the issue of the objector’s standing and a substantive issue of “aspirational policy making.”

Indian Trail Improvement District (ITID) is an independent special district created by the Legislature in 1957. Since 1998 it has operated a freshwater and wastewater system within the unincorporated areas of Palm Beach County. Actually ITID does not itself originate its own potable water or treat wastewater. It obtains freshwater from the City of West Palm Beach and another special district to supply its customers. Similarly it has contracted with the City for bulk treatment of its customer’s wastewater.

To have standing to appeal agency action, a party must be “adversely affected by final agency action.” § 120.68(1), Fla. Stat. (2006). As one who was providing the same services before the County adopted the amendment in question, we think ITID is manifestly a party who has been “adversely affected” by the approval. The fact that this party is also a public entity, a special taxing district, does nothing to change the nature of the consequences flowing from having another provider of the same services within its service area. In particular, ITID pointed to its own plans for expansion of its services as something directly affected by now having the County in “competition” to provide the same future services. We do not agree with the County that some direct impact on real property is required to show an adverse effect. That is certainly the way a party usually must demonstrate standing to appeal final agency action, but in this instance it is by no means the exclusive method. We agree with ITID that the reasonably foreseeable future operational and planning consequences of the County’s CLUP amendment give it standing to pursue this appeal.

ITID primarily attacks the amendment as lacking appropriate data to support it. See § 163.3177(8), Fla. Stat. (2005) and Fla. Admin. Code R. 9J-5.005(2) (both generally requiring CLUP amendments to be based on relevant and appropriate data and analyses applicable to each element). DCA has evolved a policy of review that does not always require “the same amount or type of data for all [CLUP] amendments.” As the order states:

“For example, if amendments merely represent a policy or directional change and depend on future activities and assessments (ie., further analysis and decision-making by the local government), the Department does not require the degree of data and analyses that other amendments require. (These amendments have sometimes been referred to as aspirational amendments....)”

The agency went on to add:

“Thus, under Department interpretations of the relevant statutory and rule provisions, if an amendment does not have an immediate impact on the provision of services in the unincorporated area, is policy-based, does not require any capital improvement expenditures at the time the amendment is adopted, and simply represents a directional change in the County’s long-term water utility planning, it is similar to an aspirational amendment and can be based on less data and analyses than might otherwise be required.
“Here the County’s actual policy regarding utility service areas will depend on future activities and assessments. The Amendments do not require the County to take any immediate action. The Amendments do not mandate that existing utility • customers in the [rural service area] switch .to the County.”

DCA also noted from evidence produced in the record that the failure of the County itself to be a provider had created a “void” in long range utility planning resulting in duplicative service lines, inefficient services in the rural service area, overlapping utility jurisdictions, and an absence of written agreements defining service availability areas.

We are unable to find error in DCA’s analysis. Some matters of policy are obviously not susceptible to numerical computation. The preservation of a specific natural resource, for one example, may not involve an issue of overuse by too many people, but instead whether to have any use at all. Similarly, issues of duplication of services, inefficiency in providing utility services, and overlapping jurisdictions, may not yield in a meaningful sense to arithmetical calculations. Some issues simply involve abstract concepts — unlike, e.g., questions of specific population.

One of the very reasons for having administrative agencies decide some applications of policy is to allow for human perceptions. This does not mean that the rule of law gives way to a rule of individuals. It simply means that some questions are not dominated by algebraic equations but instead must be informed by human judgment of elected officials. Their judgment is then subjected to agency review under established methods, principles, and standards by officials having expertise in the subject. That agency properly defers to the County’s judgment and intervenes only when there is a palpable misapplication of governing law. In this case the judgment of the County officials is within the governing law, and the review by DCA conducted within its special expertise plausibly found no basis to disapprove the County’s action.

Affirmed.

GUNTHER, J., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: MAY, J.

text:
    Jahmarley BOLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4366.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied Feb. 9, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence on three counts of robbery with a firearm while wearing a mask and one count of armed burglary of a dwelling with an assault or battery while wearing a mask. He argues that the trial court abused its discretion in denying his motion for continuance. We agree and reverse.

The focus of the motion for continuance was a two-page, handwritten letter, purportedly signed by the defendant, that one of the victims provided to the prosecution just before opening statement. According to this victim, the letter had resulted from communications he had with the defendant during a time they resided in the same detention center. The two men interacted on a couple of occasions. Subsequently, a third inmate questioned whether the victim would testify against the defendant or help him by testifying that he had not committed the crime.

The three men then met at a common area of the detention center where the defendant told the victim that the defendant’s mother had recently died and he was sorry for the crime he committed against the victim. The defendant asked the victim to help him by testifying that he had not been involved in the crime. The victim assured the defendant that he would not testify against him.

The three men met a second time when the victim became concerned about reprisals from other inmates for being a “snitch.” The victim again assured the defendant that he wouldn’t testify against him, but asked the defendant to write a letter explaining exactly what to say. Shortly thereafter, the victim received a letter.

The letter read: “Roger ... my lawyer said if you right [sic] that I dident [sic] do the crime it has to be writen [sic] and notarized like a witness stament [sic] so you could do that for me I would like that very much please.” The letter indicated that the two co-defendants were not going to testify against him and only- one of the victims intended to testify. The defendant apologized for the crime and indicated that he didn’t know it was the victim’s house. The letter made reference to the defendant’s mother having died and discussed the state’s plea offer.

The victim then brought the letter with him when he was transported to the courthouse to testify. He gave it to the prosecutor, who immediately shared it with defense counsel.

After jury selection, but prior to trial, the court.conducted a hearing on the defendant’s motion to suppress other inculpa-tory statements made to law enforcement. The court granted the motion and suppressed the statements. Following that hearing, defense counsel called the court’s attention to the letter and objected to its use. Because both sides agreed not to mention the letter in opening statement, the court reserved ruling on the letter’s admissibility.

In opening statement, defense counsel explained that his client had not been present when the crimes were committed and had not confessed to the crime. After several witnesses had testified and the jury had gone to lunch, the court addressed the issue of the letter. The prosecutor advised that he intended to introduce the letter during the victim’s testimony. Defense counsel again objected, indicating he was surprised and prejudiced by the letter. The court conducted a Richardson hearing and found no violation had occurred.

At this point, defense counsel asked for a continuance to have the letter examined by a handwriting expert because the defendant denied having written it. He argued that if authentic, it was a confession, which now prejudiced his announced defense. The prosecutor argued that the defense was not prejudiced by the letter because it had been aware of the defendant’s other inculpatory statements to law enforcement and knew about the letter before commenting in opening statement that there was no confession.

The court overruled the defense objection, permitted the victim to testify concerning the letter, and allowed the letter to be admitted.. The victim identified the defendant as one of three robbers and testified that the defendant had acknowledged writing the letter. A co-defendant also inculpated the defendant.

After the close of the defense case, a juror asked the court whether the jury could “ask to verify the Defendant’s handwriting.” The court instructed the jury that it would have to rely on its collective recollection of the evidence and that no further evidence would be presented.

In closing, the prosecutor told the jury there were “three big pieces of evidence”: (1) the letter; (2) the victim’s identification of the defendant; and (3) the co-defendant’s testimony. The prosecutor made reference to various aspects of the letter. The jury convicted the defendant as charged.

On appeal, the defendant argues the court erred in denying the continuance to allow a handwriting expert to analyze the letter. The State responds that defense counsel was given the opportunity to confer with his client and depose the victim about the letter. The State also claims any error was harmless as the defense was prepared to confront inculpatory statements that were suppressed just prior to the trial.

The standard of review for trial court decisions on motions for continuance is abuse of discretion. Barnhill v. State, 834 So.2d 836, 847 (Fla.2002). “ ‘An abuse of discretion is generally not found unless the court’s ruling on the continuance results in undue prejudice to defendant.’ ” Id. (quoting Fennie v. State, 648 So.2d 95, 97 (Fla.1994)).

Here, the defendant prevailed on his motion to suppress the other inculpato-ry statements. Yet, on the day of trial, the prosecutor revealed a letter containing another confession. The defendant denied writing the letter, which put the issue of the letter’s authenticity at issue. The defense clearly objected and requested an opportunity to have a handwriting expert review the letter. Had the outcome of that analysis supported the defendant’s position that he didn’t write the letter, the victim’s credibility would have been severely undermined. This is one of those circumstances where the prejudice is evident. We therefore find the denial of the motion for continuance to have been an abuse of discretion. And, we cannot say that the error was harmless. State v. DiQuilio, 491 So.2d 1129, 1139 (Fla.1986).

We reverse the defendant’s convictions and remand the case for a new trial, thereby giving the defendant the opportunity to have the letter analyzed. We find no error in the other issue raised.

Reversed and remanded.

KLEIN and HAZOURI, JJ„ concur.

      . The victim and the defendant communicated through the use of sign language, which the third inmate translated.

      . Richardson v. State, 246 So.2d 771, 775 (Fla. 1971).


text:
    Jose M. ARCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3337.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Jose M. Arce, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

For a second time, Jose M. Arce appeals the summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and for a second time, we reverse. Arce is challenging the predicate offenses used to support his habitual offender sentence.

We reversed the summary denial once before because the record did not contain certain documents to refute his claim that one of the predicate offenses used to qualify him for habitual offender sentencing was not his. See Arce v. State, 936 So.2d 651 (Fla. 4th DCA 2006).

After remand, the trial court attached the sentencing transcript, which does not contain the necessary documents to refute appellant’s claim. We note the state’s reference to case number 91-15433 as a qualifying predicate offense, but find that appellant’s release date on that conviction is not clear from the transcript provided. See § 775.084(l)(a)2 (2006), Fla. Stat. Without a clear release date we cannot ascertain whether Arce has the necessary qualifying convictions. We reverse and remand for attachment of any relevant portions of the record available to support the habitual offender sentence.

STONE, TAYLOR and MAY, JJ., concur.


text:
    Robert Paul BROWN, Jr., Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES; Doyle Conner, Commissioner of Agriculture, State of Florida; Dr. C.L. Campbell, Director, Division of Animal Industry, Appellees.
    No. 4D05-4044.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Carl A. Cascio of Carl A. Cascio, P.A., Delray Beach, and Shelley B. Maurice of Shelley B. Maurice, P.A., Boynton Beach, for appellant.
    David W. Young, Tallahassee, for Florida Department of Agriculture and Consumer Services.
   KLEIN, J.

Appellant alleged in this case that he lost cattle in 1985 as a result of the cattle being confiscated by the state because of a brucellosis outbreak. He is seeking indemnification from the state for the appraised value of the cattle which were destroyed, under section 585.09, Florida Statutes (1985). After waiting many years to seek compensation, appellant brought this proceeding, and after a nonjury trial, the court concluded that appellant never presented his cattle for testing or for appraisal, which would have been necessary in order for appellant to be compensated under a stipulated order entered in the original action initiated by the Department of Agriculture in 1983. There is competent substantial evidence in this record to support the trial court’s finding of fact that appellant did not demonstrate that the state had failed to fulfill any of its obligations, and that it was the appellant who failed to perform his obligations which are the source of his alleged loss. We accordingly affirm.

POLEN and MAY, JJ., concur.


author: TAYLOR, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Nick STYLIANOUDAKIS and Martha Stylianoudakis, as the natural parents and guardians of Peter Stylianoudakis, a minor, Appellees.
    No. 4D05-3598.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Frances F. Guasch and Rodolfo Soron-do, Jr. of Holland & Knight LLP, Miami, for appellant.
    No brief filed for appellees.
   TAYLOR, J.

State Farm Mutual Automobile Insurance Company appeals from the trial court’s entry of a final cost judgment for plaintiffs. State Farm contends that the plaintiffs failed to file their motion to tax costs within the thirty-day period required by Florida Rule of Civil Procedure 1.525. In granting the motion for costs, the trial court followed our holding in Fisher v. John Carter & Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004) (holding that a reservation of jurisdiction in a final judgment enlarges the time for filing a motion for fees and costs after entry of judgment). We must reverse, however, because while this appeal was pending before us, the Florida Supreme Court decided Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006). Saia held that Rule 1.525 established a bright-line time requirement for motions for costs and attorney’s fees, and that a reservation of jurisdiction in a final judgment does not enlarge the time for filing such motions.

Plaintiffs Nick and Martha Stylianou-dakis filed a claim under their uninsured/underinsured motorist coverage for injuries to their son. The trial court entered a final judgment for plaintiffs on January 28, 2005. In the judgment, the court stated: “This court reserves jurisdiction to consider and award taxable costs in this matter.” On March 21, 2005, plaintiffs filed a motion to tax costs pursuant to Florida Rule of Civil Procedure 1.525. Rule 1.525 states: “Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”

Relying upon our decision in Fisher, which held that a reservation of jurisdiction enlarges the time requirement under Florida Rule of Civil Procedure 1.090(b), the trial court determined that the plaintiffs’ motion for costs was timely. It granted the motion and entered a final cost judgment for $9,873.37. The trial court noted that there was a conflict among the district courts of appeal as to whether a reservation of jurisdiction in a final judgment enlarges the time to file a motion for costs. The court also noted that conflict regarding the time requirement for serving a motion for attorney’s fees and costs had been certified to the Florida Supreme Court in Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004), and Clampitt v. Britts, 897 So.2d 557 (Fla. 2d DCA 2005), review denied, SC05-705, 946 So.2d 1069 (Fla. Dec. 7, 2006). State Farm appealed the cost award.

After the trial court entered the cost award to plaintiffs, the supreme court addressed the conflict among the district courts in Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006). The supreme court quashed the third district’s holding in Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004), which, like Fisher, held that a reservation of jurisdiction enlarged the thirty-day time period. The supreme court approved the decisions of the first, second, and fifth districts, which held that the thirty-day time limit must be strictly adhered to. See State, Dep’t of Transp. v. Southtrust Bank, 886 So.2d 393 (Fla. 1st DCA 2004), review denied, 900 So.2d 553 (Fla.2005); Gulf Landings Ass’n v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003). In resolving the conflict, the supreme court determined that Rule 1.525 “established a bright-line time requirement for motions for costs and attorney fees.” Saia, 930 So.2d at 600. It held that a reservation of jurisdiction in a final judgment does not enlarge the time requirement so as to permit a trial court to consider such motions after the expiration of the thirty-day period. Id.

An appellate court generally is required to apply the law in effect at the time of its decision. See Fla. Patient’s Comp. Fund v. Von Stetina, 474 So.2d 783 (Fla.1985); Lowe v. Price, 437 So.2d 142, 144 (Fla.1983); Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978). In general, “a decision of a court of last resort which overrules a prior decision is retrospective as well as prospective in its operation unless declared by the opinion to have prospective effect only.” Brackenridge v. Ametek, Inc., 517 So.2d 667, 668-69 (Fla.1987) (emphasis supplied).

Here, the supreme court did not limit its holding in Saia to future cases, a point of contention raised by the dissent. See 930 So.2d at 601 (Pariente, C.J., dissenting) (“If the majority concludes that it is best to recede from the reasoning of Gulliver Academy[, Inc. v. Bodek, 694 So.2d 675 (Fla.1997),] and strictly interpret the civil rules in all circumstances, this interpretation should be applied prospectively to ensure that all litigants are put on notice.”). Because the supreme court did not explicitly limit application of its holding to future cases, we conclude that Saia applies in this case. Accordingly, we reverse the final cost judgment.

Reversed.

STEVENSON, C.J., and STONE, J., concur.


author: KELLY, Judge.

text:
    Nicholas M. WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3024.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
   KELLY, Judge.

Nicholas M. Welch appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Welch’s postconviction motion is not properly sworn, we reverse the postconviction court’s denial and remand for further proceedings.

Welch’s rule 3.850 motion and memorandum of law alleged six claims. The post-conviction court addressed the six claims on the merits. However, Welch’s rule 3.850 motion, which contained the supporting facts for the claims, was not properly sworn in compliance with rule 3.850(c). Page 17 of Welch’s rule 3.850 motion contained the authorized “unnotarized oath” with Welch’s name and address in block print under the oath and a line for Welch’s signature. See Fla. R.Crim. P. 3.987; State v. Shearer, 628 So.2d 1102, 1103 (Fla. 1993). However, Welch did not sign the oath. Because Welch’s rule 3.850 motion was not properly sworn, the postconviction court should have dismissed it without prejudice to Welch timely filing a properly sworn motion. See Ferrell v. State, 825 So.2d 498, 499 (Fla. 2d DCA 2002).

Accordingly, we reverse the postconviction court’s order and remand for dismissal of Welch’s rule 3.850 motion without prejudice to Welch timely filing a verified rule 3.850 motion. If the postconviction court again denies Welch’s motion, it must either attach to its order those portions of the record that conclusively refute his claims or conduct an evidentiary hearing.

Reversed and remanded.

SALCINES and VILLANTI, JJ„ Concur.

      . Welch's memorandum of law was sworn; however, it contained only legal argument. Accordingly, the postconviction court could not have read it in conjunction with the motion to supply the requisite sworn factual allegations required by rule 3.850(c). Cf. Price v. State, 487 So.2d 34 (Fla. 1st DCA 1986). We also note that because the memorandum con-tamed only legal argument, it did not have to be sworn. Stevens v. State, No. 2D05-6156, 947 So.2d 1227, 2007 WL 188328 (Fla. 2d DCA Jan. 24, 2007) (holding that a memorandum of law need not be sworn if it is not the source of the factual allegations supporting a motion made pursuant to rule 3.850).


author: STRINGER, Judge.

text:
    In the Interest of I.B., T.L., S.F., J.C., K.C., children. S.G., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D06-3136.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      Harold E. Barker, Lakeland, for Appellant.
    Douglas B. Sherman, Department of Children and Families, Bartow, for Appel-lee.
   STRINGER, Judge.

S.G., the Mother, seeks review of the trial court’s order adjudicating her five children dependent. The Mother argues that the trial court erred in concluding that she had neglected the children by allowing a man who was two months out of prison to spend nights in her home and have a relationship with her children. We agree that these acts did not' constitute neglect as a matter of law and reverse.

The facts of this case are tragic. In February 2006, the Mother discovered that her boyfriend of two months, who had been spending nights in her home, had a criminal background and had recently been released from prison. The Mother attempted to end her relationship with the boyfriend, but the conversation escalated into a heated argument during which the boyfriend threatened that she would “pay for this.” The Mother ordered the boyfriend to leave her apartment and, with the assistance of two friends, eventually pushed him out the door.

At the time of these events, the children were at school. The Mother then went to a neighbor’s home, where she intended to contact the police but never did. One of the Mother’s friends went to the bus stop to retrieve the children. The friend then took the children to the Mother’s apartment. Within thirty minutes of his departure, the boyfriend returned with a gun and banged on the back door to the Mother’s apartment while threatening to “kill her and shoot up the place.” The friend inside the apartment attempted to shelter the children in the closet, but two children remained in an interior room. The boyfriend then ran to the front of the apartment and repeated his threats. When no one answered, he fired shots - into the Mother’s apartment. The Mother’s twelve-year-old son, who had not found shelter in the closet, was struck in the head with one of the bullets. He suffered serious injuries but did not die from the gunshot.

The Department of Children and Families (“the Department”) removed the children from the home and filed a petition seeking an adjudication of dependency. The trial court struggled with its determination, noting that “to some extent, the [M]other had no control over the unfortunate events that transpired.” The court remarked that the Department “barely tipped the scales in favor of a dependency,” but ultimately concluded that the Mother placed the children at substantial risk of imminent harm by allowing a man who had been out of prison for only two months to have a relationship with her children and spend nights in her apartment. The court reasoned that these actions “caused the children’s physical, mental or emotional health to be significantly impaired or to be in danger of being significantly impaired.” The court thus determined that the Mother neglected the children and adjudicated them dependent on this basis.

“A court’s final ruling of dependency is a mixed question of law and fact and will be -.sustained on review if the court applied the correct law and its ruling is supported by competent substantial evi-. dence in the record.” R.F. v. Fla. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000). A trial court may adjudicate a child dependent if the State proves by a preponderance of the evidence that the child was “abandoned, abused, or neglected by the child’s parent” or that the child is “at substantial risk of imminent abuse, abandonment, or neglect by the parent.” §§ 39.01(14)(a), (f); 39.507(l)(b), Fla. Stat. (2005). “ ‘Neglect’ occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(45).

In this case, the court concluded that the Mother’s act of engaging in a relationship with a man who had been out of prison for only two months and allowing him to spend nights in her apartment “caused the children’s physical, mental or emotional health to be significantly impaired or to be in danger of being significantly impaired.” However, the Mother’s decision to have a relationship with a felon did not cause the harm to the children in this case. The harm to the children was caused by the felon’s heat-of-passion crime of shooting into the Mother’s apartment after she ended their relationship. The Mother had no forewarning of this behavior, and it certainly cannot be said that the mere fact that the Mother’s boyfriend was a felon should have given the Mother warning.

The Department argues that the Mother should have known the boyfriend would shoot into the apartment because the boyfriend told her she was going to pay for kicking him out. However, the boyfriend’s threat was not specific, and there was no evidence that he had previously wielded a weapon or acted violently toward her. The Mother simply had no reason to think the boyfriend would retrieve a gun and shoot into her. apartment. As the trial court itself recognized, “the [Mjother had no control over the unfortunate events that transpired.”

We understand the trial court’s concern with the Mother’s decision-making ability when it comes to choosing a paramour. However, this is not a case in which the boyfriend became increasingly violent and the Mother put the children at risk by maintaining a relationship with the boyfriend. Indeed, the Mother ended the relationship because she found out that the boyfriend was a felon.

For these reasons, the trial court erred in concluding that the Mother neglected the children. We therefore reverse the adjudication of dependency.

Reversed.

DAVIS and WALLACE, JJ., Concur.