author: RAMIREZ, J.

text:
    Luis DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-702.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before RAMIREZ, and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Luis Delgado appeals the denial of his motion under Florida Rule of Criminal Procedure 3.800(a), alleging that the State incorrectly calculated his scoresheet points resulting in a sentence greater than allowed by law. We agree and reverse for resentencing.

Delgado was convicted of twelve felony counts arising out of a single home invasion robbery, involving multiple victims. Delgado was sentenced to life in prison on February 21, 1989. His scoresheet totaled 518 points and notes one departure reason, the “sophisticated, organized, planned” manner in which the crimes were carried out. This total placed Delgado in the “life” range on the scoresheet. If he had scored between 471 and 506 points, he would have been in the 27 to 40 year range.

Florida Rule of Criminal Procedure 3.800(a) allows that a court “may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief....” In his 3.800(a) motion, Delgado has raised purely legal issues regarding his sentencing, which may be resolved by consulting court records and which, taken together, show that the terms of his sentence are impermissible as a matter of law. See Carter v. State, 786 So.2d 1173, 1180 (Fla.2001)(concluding that because the error in sentencing Carter as a habitual offender for a life felony was apparent on the face of the record, Carter was entitled to relief pursuant to rule 3.800(a)).

The State concedes that it improperly scored Delgado a net of 7 additional points by miscounting the number of first and second degree felonies. But Delgado also argues that the trial court improperly allowed 8 victim injury points for alleged victim Jose Luis Goyriena, although the charging document never accused Delgado of any crime against the person of Mr. Goyriena. Erroneous assessment of victim injury points is cognizable in a 3.800(a) motion and can be raised at any time as long as the error is discernible from the face of the record. See Chapman v. State, 885 So.2d 475, 476, 477 (Fla. 5th DCA 2004); Daum v. State, 544 So.2d 1035, 1036 (Fla. 2d DCA 1989). Here, the information alleged no physical contact or injury against Jose Luis Goyriena, as it alleged no crime against his person, and therefore it was improper for the court to assess the 8 victim injury points for Mr. Goyriena. The trial court’s denial of Delgado’s 3.800 motion did not attach any portions of the record that would conclusively refute Delgado’s claims, so the trial court should have either granted the motion or attached the relevant portions of the record. Deducting these 8 points, plus the 7 points from the scoresheet miscalculation, places Delgado in a lower sentencing range.

In addition, the departure reason given by the trial judge was invalid under the case law in effect at the time of sentencing. The only departure reason given for Delgado’s sentence was that the crime was carried out in a “sophisticated, professional, organized, planned” manner, a departure reason that has been held invalid by Florida courts. See Collins v. State, 535 So.2d 661, 662 (Fla. 3d DCA 1988) (finding “professional manner” not a valid departure reason because it was inherent component of crime); State v. Fletcher, 530 So.2d 296, 297 (Fla.1988). In Fletcher, the Florida Supreme Court stated that an “inherent component” of the crime in question can never be used to justify a guidelines departure. Id. Where a crime inherently involves premeditation and planning, the planned and calculated manner of committing the crime is not a valid departure reason. Id. Thus, the planning necessary to carry out a crime is an inherent component of that crime, even if it is not a statutory element. A home invasion robbery of the type that occurred in this case — where several victims were allegedly held hostage over a period of several hours — could not have occurred without planning and premeditation.

After subtracting the scoring errors and the invalidity of the departure reasons, Delgado scores 503 points and drops into the 27 to 40 year sentencing range. We therefore vacate Delgado’s sentence and remand the case for resentencing within the proper range.

Reversed and remanded.


source: Caselaw Access Project

author: COPE, C.J.

license: Public Domain

text:
    Pegey MILLS, Appellant, v. Michael Lee MILLS, Appellee.
    No. 3D03-3212.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Bette E. Quiat; Jay M. Levy, Miami, for appellant.
    Barranco, Kircher & Vogelsang; Cynthia L. Greene, Miami, for appellee.
    Before COPE, C.J., and FLETCHER and CORTINAS, JJ.
   COPE, C.J.

This is an appeal of an amended final judgment of dissolution of marriage entered after remand in Mills v. Mills, 845 So.2d 230 (Fla. 3d DCA 2003). We conclude that there must be further proceedings and remand for that purpose.

I.

We first consider whether the trial court misapprehended the scope of the remand from the prior appeal. We conclude that the prior panel intended for the $50,000 lump sum alimony award to remain intact, and that award should not have been revisited and reduced on remand.

In the original final judgment in this case, the trial court found that the former husband’s business, RonLee Construction, Inc. (“RLC”) was a marital asset. The trial court valued the business at $610,390 and equitably distributed one-half of that value to the former wife ($305,195).

In light of that equitable distribution (among other things), the court denied the award of permanent periodic alimony, but granted $50,000 in lump sum alimony, in the nature of bridge-the-gap alimony, to enable the former wife to obtain housing and transportation. See Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999)(“Bridge-the-gap alimony is ... to assist a spouse with any legitimate, identifiable, short-term need.”).

In the first appeal in this case, the former husband challenged the trial court’s finding that RLC was marital property subject to equitable distribution. The pri- or panel concluded that the business was the former husband’s separate property as provided by the parties’ prenuptial agreement. Mills, 845 So.2d at 233. As a result this court reversed the equitable distribution award. Id. The effect was to eliminate the award of $305,195 to the former wife. The panel went on to say, “Because the lower court considered the equitable distribution award in the denial of permanent alimony ... we also remand for a new trial on alimony.” Id. Thus the remand was for reconsideration of the equitable distribution award (excluding the husband’s business), and for reconsideration of the former wife’s request for permanent alimony. Id.

In the original appeal the former husband also challenged the $50,000 award of lump sum alimony. This court’s opinion said, “We affirm on all other points on appeal and cross-appeal.” Id. The “other point[]” on appeal was the former husband’s challenge to the $50,000 lump sum alimony award. Thus the $50,000 award was affirmed on the prior appeal.

On remand, the former husband persuaded the successor judge that this court had reversed the lump sum alimony award, and persuaded the trial court to reduce that award. We acknowledge that the pri- or opinion was not as clear as it could have been about the scope of the remand. The introductory paragraph in the opinion could be read to say that the remand included all alimony issues. Id. at 230. However, the concluding paragraph does set forth with more particularity the issues to be considered, which included equitable distribution and permanent alimony. By affirming on the other issues, the opinion necessarily affirmed the lump sum award.

For the stated reasons we reverse the reduced lump sum alimony award in the amended final judgment and remand with directions to reinstate the $50,000 award.

II.

We also reverse because the successor trial court applied the incorrect legal standard in reaching its conclusions as to permanent periodic alimony in the Amended Final Judgment. The court concluded that it could not look to the former husband’s separate assets as a source of income to pay alimony. The court said:

Although the Former Husband has a substantial non-marital asset (the liquid funds in his corporation) the court finds that it cannot-legally order someone to pay permanent periodic alimony when the only way that they have the ability to pay the permanent alimony is by depleting a non-marital asset on a monthly basis.

This is not a correct statement of the law.

The first question is whether the trial court may consider the former husband’s separate assets as a possible source of funds with which to pay alimony. The answer to that question is yes. Under the alimony statute:

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, - the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

§ 61.08(2), Fla. Stat. (2002) (emphasis added).

Under paragraph 61.08(2)(d), the court is to consider the non-marital and marital assets of each party, and under paragraph 61.08(2)(g) the court is to consider all sources of income available to either party. Thus, a payor spouse’s non-marital assets are to be considered in determining the “ability to pay” aspect of the alimony equation. See White v. White, 617 So.2d 732 (Fla. 2d DCA 1993)(“Finally, we doubt that the record supports the finding that the husband, a sixty-year-old experienced businessman, lacks the income to pay any alimony. .Even if it does, Mr. White received over $300,000 in marital assets, and has extensive non-marital assets as a result of the prenuptial agreement. . The husband’s income alone is not the test for determining ability to pay alimony”); Green v. Green, 542 So.2d 466, 467 (Fla. 5th DCA 1989)(“[A]lthough these separate assets should not.be considered for purposes of equitable distribution of marital assets, they [are] relevant to the issue of [husband’s] ability to pay.”); see also Canakaris v. Canakaris, 382 So.2d 1197, 1201-02 (Fla.1980) (A spouse’s ability to pay may be determined not only from net income, but also net worth, past earnings, and the value of the parties’ capital assets.)

The trial court expressed concern about depleting a non-marital asset, the former husband’s business, on a monthly basis. While we share that concern, this case is unusual because the original judgment found the former husband to be voluntarily underemployed. At the time of the hearing on remand, the former husband testified that he had not succeeded in obtaining new contracts during the pendency of the divorce proceedings, was not doing business through his company, and was simply withdrawing funds from the business for his own living expenses. The business had over $150,000 in liquid assets.

The judgment on remand indicates that the liabilities of the husband’s business, RLC, exceeded the assets. This conclusion was in error. The former husband maintained that RLC owed $400,000 to the former husband’s grandmother or her company RonLee, Inc., as well as $129,000 in interest thereon. In the original final judgment the trial court found this $400,000 liability to have no economic substance, and in addition, a satisfaction of the indebtedness had been recorded. The original judgment rejected the former husband’s claim that this money was still due and owing.

In the proceedings on remand, the trial court misinterpreted this court’s opinion as having reversed the original judgment on this point. Respectfully, this court did not disturb the determination in the original judgment that the alleged $400,000 liability must be disregarded. See Mills, 845 So.2d at 232. It follows that the accrued interest of $129,000 must be disregarded as well.

The judgment on remand also refers to other indebtedness of the former husband to the former husband’s grandmother. In the original judgment, the court found invalid a mortgage of $260,704 the former husband placed on the marital home in favor of the grandmother, determining that it has been “executed for the purpose of preventing the Wife from accessing the home for the purposes of this litigation.” Id. On the prior appeal, this court did not disturb that finding. Id.

Upon eliminating the $400,000, $129,000, and $260,704, it is clear that the former husband has significant net worth. In the original judgment he was found to be voluntarily underemployed, a situation persisting at the time of the hearing on remand. As the only stated reason for denial of permanent alimony was lack of ability to pay, we conclude that there must be a new hearing on permanent alimony. On remand, the trial court will also need to make a determination as to whether the former wife has a need for permanent alimony. It appears that the successor trial court judge believed the issue of ability to pay was dispositive, and did not make any findings on the question of need. As is made clear by the foregoing, findings will need to be made on both need and ability to pay. See Canakaris, 382 So.2d at 1201-02; § 61.08(2), Fla. Stat.

III.

We also reverse the order which denied most of the former wife’s trial court attorney’s fees. The successor trial court gave two reasons for denying the former wife the bulk of her trial court fees: 1) the former wife took an unsupportable position with regard to the parties’ pre-nuptial agreement; and 2) that the former wife alleged that the $400,000 note to the former husband’s grandmother was not valid “and the Third District found that it was.”

We do not quarrel with the trial court’s exclusion of fees incurred contesting the pre-nuptial agreement. See Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). However, the trial court also excluded time spent challenging the validity of the husband’s company’s indebtedness to the former husband’s grandmother or the grandmother’s business, RonLee, Inc. The trial court concluded that this court rejected the former wife’s position on the validity of that debt. As stated earlier, that reading of this court’s previous opinion was in error. In the prior opinion, the panel accepted the trial court’s valuation of RLC of $610,000 which was arrived at upon the determination that the $400,000 was not a legitimate debt of RLC. Mills, 845 So.2d at 232. It follows that elimination of those hours was erroneous. Similarly, the reduction of the award because of a perceived inability of the former husband to pay was also erroneous. We reverse with directions to award the former wife her trial court fees except those attributable to contesting the pre-nuptial agreement.

We reverse the Amended Final Judgment and remand to the trial court for further proceedings consistent herewith. We affirm on the cross-appeal.

      . This court's prior opinion set forth as background facts the respective positions of the parties regarding the valuation of RLC, including the former husband’s position that the $400,000 indebtedness had been omitted • from RLC's financial statements through error. Mills, 845 So.2d at 231-32. The predecessor judge rejected the former husband's testimony, ruling that the $400,000 was not a legitimate debt of RLC and also that a satisfaction had been recorded. This court stated, "The trial court valued the business at $610,390.00, finding that the company did not owe the $400,000 liability to RonLee, Inc. for the purchase of the rock pit, since Kathryn had filed a satisfaction of mortgage in December, 1997.” Id. This court did not overturn the original trial court's valuation. Instead this court reversed on the entirely distinct question of whether the stock of RLC qualified as a non-marital asset under the parties' pre-nuptial agreement. Id. at 233.

      . We also strike that portion of the order on appeal which states that the predecessor judge found the former wife committed perjury. The predecessor judge made no such finding.


author: KAHN, J.

text:
    SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., Petitioner, v. Ronald E. ASHE, as personal representative for the Estate of Dara Leigh Ashe, Respondent.
    No. 1D06-3202.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.

      Harvey L. Jay, III, and Travase L. Erickson of Saalfield, Shad, Jay, Lucas & Stokes, P.A., Jacksonville, for Petitioner.
    Kenneth B. Wright of Bledsoe, Jacobson, Schmidt & Wright, Jacksonville, for Respondent.
   KAHN, J.

By petition for writ of certiorari, Southern Baptist Hospital of Florida argues the trial judge departed from the essential requirements of law when he found respondent’s cause of action did not sound in medical malpractice, but instead in ordinary negligence, thus eliminating the necessity that respondent comply with the presuit requirements of chapter 766. See § 766.106(2), Fla. Stat. (2008) (requiring plaintiffs in medical malpractice suits to give notice to all prospective defendants of the intent to pursue litigation). “[Certio-rari review] is appropriate when chapter 766 presuit requirements are at issue.” Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). As the trial court did not depart from the essential requirements of law, we deny certiora-ri.

A court must, on a case-by-case basis, look to the allegations made in the complaint when determining whether a suit raises an issue of ordinary negligence or medical malpractice. See Foshee v. Health Mgmt. Assocs., 675 So.2d 957, 959 (Fla. 5th DCA 1996) (“The allegations of the complaint, which must be taken as true, are what determine the facts. It is up to the court to decide from the allegations in the complaint whether the claim arises ‘out of the rendering of, or the failure to render, medical care or services.’ ” (citation omitted)); see also J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 949 (Fla.1994) (looking at the allegations made in complaint and determining it “does not state a medical malpractice claim”); Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729, 731 (Fla. 4th DCA 2004) (“The gravamen of Serratore’s complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove [a deviation] from an accepted standard of medical care, which is required under section 766.102(1).”); Garcia v. Psychiatric Insts. of Am., Inc., 693 So.2d 66, 66 (Fla. 5th DCA 1997) (“The requirement of presuit notice is fact dependent, and must be premised upon the allegations of the complaint.”); Broadway v. Bay Hosp., Inc., 638 So.2d 176, 177 (Fla. 1st DCA 1994) (“From the face of the complaint, it is apparent that appellants have sued appel-lee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care.”).

In the present case, respondent does not challenge any medical diagnosis or decision that required professional skill or judgment. See Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 219 (Fla. 4th DCA 2005) (describing the essence of an action for medical malpractice: “ ‘The alleged wrongful act must be directly related to the improper application of medical services to the patient and the use of professional judgment or skill.’ ” (quoting Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 322 (Fla. 4th DCA 2002))); see also Jackson v. Biscayne Med. Ctr., Inc., 347 So.2d 721, 722 (Fla. 3d DCA 1977) (“The fact that these acts originate, rather remotely, from a hospital-patient relationship, will not bring them into the ambit of medical malpractice. To hold otherwise would lead to the absurd result that every wrongful act committed by a hospital employee in a hospital surrounding amounts to medical malpractice.”). Respondent alleges ordinary negligence in petitioner’s release of respondent’s daughter in violation of mandatory and non-discretionary requirements of Florida’s Baker Act. See § 394.463(2)©, Fla. Stat. (2003) (“[An involuntarily committed patient] may not be released by the receiving facility or its contractor without the documented approval of a psychiatrist, a clinical psychologist, or, if the receiving facility is a hospital, the release may also be approved by an attending emergency department physician with experience in the diagnosis and treatment of mental and nervous disorders and after completion of an involuntary examination pursuant to this subsection.”); see also Liles v. P.I.A. Medfield, Inc., 681 So.2d 711, 712 (Fla. 2d DCA 1995) (“After examining the provisions of the Baker Act, we conclude that its involuntary commitment procedures do not involve the rendering of medical care or services. Although a medical diagnosis is necessary in order to involuntarily commit a patient, the process of complying with the statute does not require medical skill or judgment.”). As respondent’s complaint states a cause of action in ordinary negligence, we DENY the petition.

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


author: PER CURIAM.

text:
    Tracy HUTCHINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6728.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Tracy Hutchinson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied as untimely. See Fla. RApp. P. 9.141(c)(4)(A).

WEBSTER, POLSTON, and HAWKES, JJ., concur.


author: ORFINGER, J.

text:
    Eric GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2834.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Eric Gonzalez appeals his conviction of dealing in stolen property in violation of section 812.019(1), Florida Statutes (2001). Mr. Gonzalez claims that the trial court erred by denying his motion to declare sections 812.019(1) and 812.012(8), Florida Statutes, unconstitutional, and by awarding $4,000 in restitution when the evidence did not support this amount. We affirm in part and reverse in part.

Prior to trial, Mr. Gonzalez filed a motion to declare sections 812.019(1) and 812.012(8), Florida Statutes (2001), unconstitutional, or, alternatively, to refashion section 812.019(1) in degrees in accordance with section 812.014, Florida Statutes (2001). The trial court denied Mr. Gonzalez’s motion, and Mr. Gonzalez pled nolo contendere to dealing in stolen property. A restitution hearing was subsequently held, at which the victim, Maria Lopez, testified. Ms. Lopez identified a number of items taken, which she valued at $3,125. Ms. Lopez also said that several other items were stolen, but that she did not know their value.

At the close of direct examination, the following exchange occurred:

[STATE:] Okay. So — I can — I’ll go ahead and tally up the number that you gave us. Do you have a — did you do the math for yourself to believe — how much do you think you’re out of pocket from all of this?
[MS. LOPEZ:] Well, being that I can’t remember everything, I say, probably about 4,000....

Mr. Gonzalez objected, arguing that this line of questioning called for a speculative answer; however, the trial court overruled his objection. The State then requested $4,000 in restitution based on Ms. Lopez’s estimate, or at least $3,125, based on the items she was able to identify and value during the hearing. Mr. Gonzalez again objected to this amount, arguing that Ms. Lopez did not provide sufficient testimony to support the value of the items. Once more, the trial court overruled the objection and ordered $4,000 in restitution. This appeal follows.

First, Mr. Gonzalez argues that sections 812.019(1) and 812.012(8), Florida Statutes, are unconstitutional. “A trial court decision on the constitutionality of a state statute presents an issue of law that is reviewed by the de novo standard of review.” Ocala Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 731 So.2d 21, 24 (Fla. 1st DCA 1999); see also N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 626-27 (Fla.2003). There is a “strong presumption in the law that a state statute is constitutionally valid.” Ocala Breeders’ Sales Co., 731 So.2d at 24 (citing In re Estate of Caldwell, 247 So.2d 1 (Fla.1971)).

Mr. Gonzalez claims that section 812.019(1) is unconstitutionally overbroad because it criminalizes all trafficking in stolen property in the same manner, regardless of the amount of property involved. Mr. Gonzalez contrasts this statute with section 893.135, Florida Statutes, which criminalizes trafficking in a variety of controlled substances, including marijuana and cocaine, and provides penalties in relation to the amount of controlled substances at issue. Mr. Gonzalez posits that trafficking in stolen property should contain similar gradients. While an interesting argument, it does not relate to a statute’s purported overbreadth, which occurs when a statute criminalizes conduct that is otherwise innocent conduct. See, e.g., Gonzalez v. State, 941 So.2d 1226, 1228 n. 1 (Fla. 5th DCA 2006). Trafficking in any amount of stolen goods is not innocent conduct; the fact that trafficking in a small amount of stolen goods is, according to Mr. Gonzalez, “relatively harmless,” is of no consequence. See State v. Tomas, 370 So.2d 1142, 1143 (Fla.1979) (concluding that “section 812.019(1) is not unconstitutionally overbroad, but is sufficiently confined in its applicability so as not to reach conduct that is essentially innocent”).

Next, Mr. Gonzalez contends that the trial court erred in ordering that he pay $4,000 in restitution when the evidence did not support that amount. Mr. Gonzalez claims that based on Ms. Lopez’s testimony, the trial court could have ordered, at most, $3,125 in restitution. “The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence.” Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005) (citations omitted). “ ‘Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.’ ” Yaun v. State, 898 So.2d 1016, 1017 (Fla. 4th DCA 2005) (quoting Hercule v. State, 655 So.2d 1256, 1257 (Fla. 3d DCA 1995)).

Ms. Lopez testified as to the value of $3,125 worth of goods stolen from her home. Her testimony was sufficient to warrant restitution in that amount. See Aboyoun v. State, 842 So.2d 238, 240 (Fla. 2d DCA 2003) (holding that fair market value of stolen goods had been established by victim’s testimony as to purchase price of two gold rings and a pair of sneakers, and his opinion as to value of a stereo and two gold bracelets, the latter of which was based on his experience shopping for and purchasing gold jewelry); Bakos v. State, 698 So.2d 943 (Fla. 4th DCA 1997) (determining that victim’s testimony that her stolen property included a gold herringbone bracelet and two necklaces that were purchased ten years prior to burglary for $100 apiece and a pair of heart-shaped earrings had been purchased by her husband for $180 was sufficient for value purposes to sustain restitution award).

Ms. Lopez also testified to several stolen items of unknown value, including a 14-karat gold necklace and charm, sixteen rings, a bottle of cologne, and a radio. Ms. Lopez could not recall how much these items were worth or everything that was stolen, but estimated that, in total, she had lost $4,000 worth of goods in the burglary. The First District Court of Appeal dealt with a nearly identical scenario in Fisher v. State, 722 So.2d 873 (Fla. 1st DCA 1998). In Fisher, the victim testified that several items of jewelry had been stolen, but that she could not describe many of the pieces because she did not have her insurance inventory sheet with her at the restitution hearing. The victim estimated that she had lost a total of $2,714 in jewelry and specifically described four pieces of jewelry and testified that their total value was $510. The first district court determined that based solely on the victim’s testimony, there was insufficient evidence to support a restitution award for the jewelry of more than $510. Specifically, the court concluded that:

In a case such as this, where some items of jewelry were identified and a value placed on them, where other items of jewelry were identified but no value placed on them, and where other jewelry was not identified at all, the State must produce some specific evidence or testimony as to the nature and value of the pieces claimed to have been taken.
While the owner of property is generally determined to be competent to testify as to the value of lost property, State v. Hawthorne, 573 So.2d 330, 332 (Fla.1991), basic fairness seems to dictate that the owner should be required, at a minimum, to identify what property has been lost so that the trier of fact may reasonably determine the value of the stolen items. In this case, the victim’s loss, save those items she specifically identified, could be characterized as “one quantity of jewelry, various pieces, worth $2,204.” More specific evidence was apparently available, which evidence could and should have been presented by the State.

Fisher, 722 So.2d at 874. Likewise, here, Ms. Lopez was unable to adequately identify and value several of the stolen items, and even admitted that she could not remember everything that was stolen. Although the trial court is granted discretion in determining a restitution amount to make the victim whole, here, there was no competent, substantial evidence to support the trial court’s award of restitution above $3,125.

We affirm the trial court’s denial of Mr. Gonzalez’s motion to declare sections 812.019(1) and 812.012(8), Florida Statutes, unconstitutional, but reverse its grant of $4,000 in restitution. On remand, a corrected restitution award in the amount of $3,125 shall be entered.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

PLEUS, C.J., and GRIFFIN, J., concur.

      . Section 812.019(1), Florida Statutes, which criminalizes dealing in stolen property, states:
      Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084.
      Section 812.012(8), Florida Statutes, defines "traffic” as:
      (a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
      (b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

      . Mr. Gonzalez also alleges that sections 812.019(1) and 812.012(8) violate his equal protection and due process rights. It is unclear how Mr. Gonzalez believes that such violations exist. Neither section creates any classification, such that equal protection rights would come into play, and Mr. Gonzalez does not discuss his due process claim in his initial brief. Even if the equal protection clause was implicated, it withstands rational basis review, which requires that a statute bear a reasonable relationship to a legitimate state interest. Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So.2d 365, 367 (Fla.1981). The statute adequately addresses the State’s interest in discouraging and punishing dealing in stolen goods at all levels.


author: GRIFFIN, J.

text:
    A.S., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4200.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

A.S., a juvenile, appeals his commitment to a level 6 program after a determination of dependency. We reverse.

A.S. was charged by petition with one count of possession of a firearm on school property, a third-degree felony. He pled to the lesser offense of carrying a concealed weapon, a first-degree misdemean- or. According to his pre-disposition report [“PDR”], A.S. had brought a firearm and empty magazine to school in order to return them to another child to whom he claimed the gun belonged. Appellant’s PDR also reflected two prior charges in 1998, but both were closed without sanction. The Department of Juvenile Justice [“DJJ”] recommended adjudication be withheld and appellant be placed on probation. At the disposition hearing, however, the trial court decided that probation was not an appropriate punishment because bringing a firearm to school was quite serious. Instead, he committed him to a level 6 facility.

As we have said many times, the trial court may disregard the DJJ’s recommendation for disposition, under section 985.23(3)(c), Florida Statutes (2005), but the judge must state its reasons for doing so and must include references to the characteristics of the restrictiveness level and the needs of the child. See G.L. v. State, 937 So.2d 801, 802 (Fla. 5th DCA 2006). Consideration of the nature of the charge is not alone a sufficient reason to depart. Id.

Here, it is apparent from the record that the court’s reasons for departing were: (1) the nature of the offense and (2) the desire not to send the wrong message about whether taking firearms to school will be condoned. The needs of the child and the characteristics of the alternative dispositions were not mentioned. This case, which involves the same judge, is very much like G.L. We reverse the trial court’s order and remand for sentencing in accordance with DJJ’s recommendation.

REVERSED and REMANDED.

PALMER and EVANDER, JJ., concur.


author: THOMPSON, J.

text:
    Ricardo L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2852.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.

      Ricardo L. Johnson, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   THOMPSON, J.

Ricardo L. Johnson appeals the summary denial of his third rule 3.800(a) motion to correct an illegal sentence directed at Seminole County case number 99-3985-CFA. The trial court denied Johnson’s motion as successive and we affirm. In order to conserve judicial resources, we further hold that Johnson is barred from filing any future pro se pleadings concerning Seminole County case number 99-3985-CFA on the basis that his prior pleadings constitute an abuse of process and “[ejnough is enough.” Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995).

Johnson’s current rule 3.800(a) motion alleged that his sentence in case number 99-3985-CFA was vindictively imposed by the trial judge. Johnson, however, made the same assertion in both his first and second rule 3.800(a) motions, which were denied by the trial court and affirmed by this Court on appeal. See Johnson v. State, 875 So.2d 633 (Fla. 5th DCA 2004) (table); Johnson v. State, 928 So.2d 461 (Fla. 5th DCA 2006). Notably, in denying his second rule 3.800(a) motion as successive, the trial court also noted that vindictive sentencing claims are not cognizable in a rule 3.800(a) proceeding. See Bouno v. State, 900 So.2d 672 (Fla. 5th DCA 2005).

In response to this Court’s show cause order, issued pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), Johnson argues that his claim of vindictiveness in the instant motion was qualitatively different than his prior vindictiveness claims. What Johnson fails to recognize is that no vindictive sentencing claim is cognizable in a rule 3.800(a) proceeding. See Bouno.

Accordingly, we prohibit Johnson from filing any further pro se pleadings with this court directed at Seminole County case number 99-3985-CFA. We direct the Clerk of this Court to summarily reject any further such pro se pleadings unless they are filed by a member in good standing of The Florida Bar.

AFFIRMED; Future Pro Se Filings PROHIBITED.

PLEUS, C.J. and ORFINGER, J., concur.

      . We also take judicial notice of our own records which, demonstrate that Johnson raised the same vindictive sentencing claim before the trial court in a petition for writ of certiorari, which was dismissed by the trial court and affirmed by this Court on appeal. See Johnson v. State, 894 So.2d 261 (Fla. 5th DCA 2005) (table).


author: EVANDER, J.

text:
    R.H., Mother of E.H. and J.J., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1324.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.

      Lauren Zimmerman, of Law Offices of Lauren Zimmerman, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   EVANDER, J.

R.H. (the mother) appeals from an order which closed the dependency case of her two children and granted permanent custody of the two children to their respective fathers. We reverse.

After an adjudicatory hearing, held on November 16, 2005, the trial court found the two children, J.J. and E.H., to be dependent as to the mother. J.J.’s father and E.H.’s father were each found to be non-offending. At the disposition hearing, the trial court placed the children in the temporary custody of their respective fathers under the supervision of the Department of Children and Families (“DCF”). The mother was granted supervised visitation only. The court also accepted the case plan proposed by DCF.

The approved case plan had a goal of reunification for the mother. The reunification goal date was August 2, 2006. The case plan required the mother to perform several tasks. The case plan also imposed an obligation on each of the fathers to maintain a safe and stable residence.

On January 19, 2006, the mother filed a motion for reunification. A hearing on the motion was scheduled for March 6, 2006. A judicial review had previously been scheduled for March 12, 2006. At the onset of the March 6, 2006 hearing, the parties agreed to proceed on both the motion for reunification and the judicial review.

The trial court denied the motion for reunification after receiving evidence that the mother was not in substantial compliance with her case plan. The two fathers then made ore terms motions to close the case. The trial court granted such motions and awarded permanent custody of the two minor children to their respective fathers.

The mother’s subsequent motion for rehearing was denied and this appeal followed.

On appeal, the mother correctly contends (and the guardian ad litem and DCF concede) that her procedural due process rights were violated when the trial court closed the case at the judicial review hearing without prior notice that permanency would be decided. D.S. v. Dep’t of Children & Families, 900 So.2d 628 (Fla. 5th DCA 2005). Florida Rule of Juvenile Procedure 8.345(b) provides that any party requesting termination of supervision or the jurisdiction of the court or both shall do so solely by written motion or in a written report to the court. No such motion was filed in this case and the issue was not raised in any written report. Indeed, DCF had recommended the case plan remain in effect to give the mother additional time to complete her case plan.

The trial court’s order was also erroneous because it had the effect of modifying the case plan. Florida Rule of Juvenile Procedure 8.400(b)(2) provides that if any party objects to the amendment of the case plan, the court must conduct an evi-dentiary hearing. In the present case, the mother was never given the opportunity for an evidentiary hearing, although she clearly objected to this de facto amendment to the case plan.

The mother further contends she substantially complied with her case plan and therefore was entitled to have the children returned to her unless the court determined the safety, well-being, and physical, mental and emotional health of the children would be endangered by their return. § 39.522(2), Fla. Stat. (2005). See also D.G. v. Dep’t of Children & Families, 903 So.2d 1042 (Fla. 5th DCA 2005); D.S., 900 So.2d at 632.

We reject this argument. The trial court’s conclusion that the mother had not substantially completed her case plan was amply supported by the record. On remand, the trial court may choose to give the mother additional time to complete her case plan. The mother would be entitled to reunification with the children if she substantially complied with her case plan and if reunification would not be detrimental to the children. D.G.

Alternatively, the court may consider a motion to amend the case plan so as to change the case plan goal from reunification of the children with the mother, to placement of one or both of the children with their respective fathers. § 39.6013, Fla. Stat. (2005). A case plan is not required to have a goal of reunifying a child with the parent from whom the child was removed. As stated in F.M. v. Department of Children & Families, 807 So.2d 200, 202 (Fla. 4th DCA 2002):

Because the statute makes the child’s health and safety the paramount concern, and not those of the parent, a case plan whose goal is to place the child in the home of the more stable parent fulfills the statutory directive.

No case plan amendment shall take place absent proper notice and the opportunity for an evidentiary hearing should a party object to the proposed amendment. Fla. R. Juv. P. 8.400(b).

REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.


author: CANADY, Judge.

text:
    G.T., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-679.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

G.T. appeals his adjudication of delinquency for possession of cannabis, possession of drug paraphernalia, escape, resisting or obstructing an officer with violence, and trespass. G.T. contends that the trial court committed fundamental error by accepting his waiver of counsel without conducting the thorough inquiry required by Florida Rule of Juvenile Procedure 8.165. Because we agree that the trial court fundamentally erred in failing to conduct a thorough inquiry concerning G.T.’s comprehension of the offer of counsel, we reverse and remand for further proceedings.

During arraignment, the trial court first advised G.T. and other juveniles in a group setting of their right to an attorney and the potential consequences of entering a guilty plea. The trial court then addressed G.T. individually. The court recited the charges to G.T. and asked if he understood each charge. G.T. responded that he did understand; he then indicated his desire to enter guilty pleas to. the charges. The trial court then advised G.T. of the consequences of the entry of a guilty plea.

In the plea colloquy, the only inquiry made by the court concerning the right to counsel was an inquiry regarding whether G.T. understood “that by entering your plea without a lawyer you’re giving up your right to. a lawyer for the purpose of making your plea.” G.T. answered “yes” to that inquiry. In response to inquiries by the trial court, G.T. also testified that he was a fifteen-year-old ninth grade student, that he was not under the influence of drugs or alcohol, and that he had never been treated or hospitalized for mental illness. The trial court stated that it found that G.T.’s “pleas are freely, voluntarily, and intelligently made after waiving counsel.” After inquiring of G.T.’s father regarding the pleas, the court further stated a finding that “the pleas are made with the advice and consent of his father.” A written waiver of counsel was signed-by both G.T. and his father.

During the disposition hearing, the trial court again informed G.T. of his right to counsel. When asked if he understood, G.T. once again said that he did. A second written waiver was obtained, signed by both G.T. and his father. The trial court adjudicated G.T. delinquent on all counts and committed G.T. to the Department of Juvenile Justice for placement in a moderate risk residential program.

Florida Rule of Juvenile Procedure 8.165(b)(2) provides “[a] child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child’s comprehension of that offer and the capacity to make that choice intelligently and understandingly has been made.” (Emphasis added.) “[T]he waiver of counsel'inquiry is especially significant in juvenile cases because children may not fully comprehend the importance of counsel or the consequences of waiving the right to counsel.” State v. T.G., 800 So.2d 204, 212 (Fla.2001). “[Wjithout a detailed inquiry as required by rule 8.165, it cannot be ascertained whether the waiver of counsel was made ‘knowingly and intelligently in consideration of [the juvenile’s] age, education, experience, mental condition, and the nature and complexity of the case.’ ” Id. (quoting P.L.S. v. State, 745 So.2d 555, 557 (Fla. 4th DCA 1999)). “ ‘Fundamental error’ occurs in instances when juveniles enter uncounseled pleas where the trial court failed to comply with the requirements of rule 8.165.” Id. at 213.

In this case, although the trial court informed G.T. of his right to counsel, it failed to make a thorough inquiry into G.T.’s comprehension of the offer of counsel as required by rule 8.165(b)(2). See C.K. v. State, 909 So.2d 602, 604 (Fla. 2d DCA 2005); see also H.A.G. v. State, 922 So.2d 411 (Fla. 2d DCA 2006). Merely informing a juvenile of the role of counsel and asking the juvenile if he understands that he is giving up his right to counsel does not constitute the “thorough inquiry” concerning the juvenile’s comprehension of the offer of counsel that is mandated by rule 8.165(b)(2). Such a “perfunctory reference to the waiver of counsel during the plea colloquy” is not sufficient to determine that the juvenile understood the significance of the offer of counsel and of the decision to waive counsel. T.G., 800 So.2d at 211.

We therefore reverse the adjudication of delinquency and “remand this case to the trial court so that it can properly advise [G.T.] of his right to assistance of counsel, ensure by a thorough inquiry that any waiver is free and intelligent, and allow [G.T.] to enter a new plea if appropriate.” Id. at 213.

Reversed and remanded.

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


author: CURRY, CHARLES B., Associate Judge.

text:
    Cynthia A. NOURSE, Appellant, v. Dennis E. NOURSE, Appellee.
    No. 2D05-2830.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.
    Gary S. Dolgin, Tampa, for Appellant.
    Sandra A. Sutliff, Port Charlotte, for Appellee.
   CURRY, CHARLES B., Associate Judge.

Cynthia A. Nourse (“wife”) appeals the judgment of dissolution of her twenty-three-year marriage to Dennis E. Nourse (“husband”) and challenges the trial court’s determination of equitable distribution, alimony award, and denial of her request for attorney’s fees. We have carefully reviewed the record and have determined that the trial court’s award of equitable distribution was supported by competent, substantial evidence in the record and is not an abuse of discretion. We affirm the equitable distribution as well as the trial court’s award of attorney’s fees without further discussion. However, because we find that the trial court should have awarded at least nominal permanent alimony, we reverse.

The Nourses were married on June 9, 1979. They did not have any children. Both parties have college degrees. The husband is employed with the State of Florida, although he has been informed that his position will be terminated within three to five years. The wife worked from her home for about fifteen years assembling goggles for an eyewear distributing company, but she is currently unemployed. The wife claims that she is currently permanently disabled as a result of bipolar disorder, diagnosed approximately fifteen years before the dissolution, and can no longer obtain meaningful work. Her claim was supported by unrebutted testimony from her physician.

The trial court denied the wife’s request for permanent alimony, awarding her only $9000 of bridge-the-gap alimony, i.e., $500 per month for eighteen months, “to assist her in her transition from marriage to single life.” The trial court further determined that both parties were leaving the marriage in essentially comparable finan-eial positions, “except for the wife’s current unemployment,” and based its decision to award bridge-the-gap alimony on its finding that the wife will be able to regain some type of employment once the stress of the divorce is concluded.

Neither party challenges the award of bridge-the-gap alimony. The wife argues, however, that the trial court should have awarded her additional permanent periodic alimony because she is permanently disabled and will never be able to return to gainful full-time employment. The wife’s psychiatrist testified that she suffers from bipolar disorder and that her condition is probably life-long. The wife’s psychiatrist did concede that if the wife takes her prescribed medication and follows his recommendations such as quitting smoking, attending therapy, daily exercise, and a proper diet and vitamin regimen, she could show some improvement and might be able to work in the future. However, he indicated that such work would probably be limited to menial labor (such as “flipping burgers”), and that she would probably not be able to work at her desired occupation or in the area in which she is trained to work currently. Conversely, the husband presented no evidence refuting the psychiatrist’s findings or indicating there is any reasonable probability the wife will actually be mentally or physically able to obtain meaningful employment enabling her to become self-supporting within eighteen months.

Based on the evidence presented, the trial court’s finding that the wife “will be able to regain some type of employability once the stress of the divorce is concluded” is not supported by competent, substantial evidence in the record. Therefore, we conclude that the trial court abused its discretion by failing to award at least nominal permanent alimony. We understand the trial court’s concerns regarding the husband’s future job prospects and the fact that there is a possibility that the wife might be able to return to work. However, we conclude that the historic incomes of the parties, the length of the marriage, and the wife’s potential future needs require an award of at least a nominal amount of permanent alimony. An award of nominal permanent alimony will accomplish two goals: first, it will permit the wife to petition the trial court to pursue a future increase in permanent alimony should she continue to be unable to work, and second, it will preserve the jurisdiction of the trial court to revisit the matter as the parties go on with their new lives. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001).

We do not strike the trial court’s award of bridge-the-gap alimony; however, we reverse and remand with directions for the trial court to make an additional award of at least nominal permanent alimony. All other aspects of the trial court’s order are affirmed.

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

ALTENBERND and WHATLEY, JJ., Concur.


author: CASANUEVA, Judge.

text:
    HAINES CITY HMA, INC., d/b/a Heart of Florida Regional Medical Center, Appellant/Cross-Appellee, v. Tammi J. CARTER, Appellee/Cross-Appellant.
    No. 2D06-1413.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.

      David J. Stefany and Brian Koji of Allen, Norton & Blue, Tampa, for Appel-lanVCross-Appellee.
    Mark F. Kelly and Melissa C. Mihok of Kelly & McKee, P.A., Tampa, for Appel-lee/Cross-Appellant.
   CASANUEVA, Judge.

This appeal results from a lawsuit brought under the anti-retaliation provision of the Florida Civil Rights Act (FCRA). Tammi J. Carter, a labor and delivery nurse, sued her employer, Haines City HMA, Inc., d/b/a Heart of Florida Regional Medical Center (the Hospital), alleging that she had been fired for filing a discrimination complaint. Following a trial, the jury found in favor of Ms. Carter and assessed $79,652 in back pay but no compensatory damages. The trial court awarded her the back pay as well as prevailing party attorney’s fees, as provided in section 760.11(5), which it enhanced by a multiplier of 1.5, based on Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). On appeal, the Hospital raises three issues. First, it claims the trial court erred in denying it a directed verdict because Ms. Carter failed to produce sufficient evidence to support her claims. Second, it claims the court erred in awarding front pay to Ms. Carter. Third, it claims that the court erred in enhancing the award of attorney’s fees by using the 1.5 multiplier. We find no merit in the Hospital’s first two contentions or in Ms. Carter’s cross-appeal and affirm those issues without further discussion. We reverse the award of attorney’s fees and remand for entry of a judgment for attorney’s fees reflecting only the lodestar amount.

The Florida Legislature has determined that an award of attorney’s fees is appropriate in FCRA actions and has shifted the responsibility for those fees to the nonprevailing party. Section 760.11(5) provides, in relevant part:

In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.

See also McCoy v. Pinellas County, 920 So.2d 1260, 1262 (Fla. 2d DCA 2006) (reversing an award of fees because the trial court did not interpret section 760.11(5) consistently with federal case law involving a Title VII civil rights action). Here, Ms. Carter was the prevailing party and the court, after a hearing, awarded her fees of $95,681.25. The trial court determined this amount by applying a multiplier of 1.5 to the stipulated lodestar fee amount of $63,788.50.

When interpreting a statute, legislative intent is the polestar of the inquiry. Cason v. Fla. Dep’t of Mgmt. Servs., 944 So.2d 306, 312 (Fla.2006) (also stating that “such intent is derived primarily from the language of the statute”). In this instance, our legislature’s language and intent could not be clearer. In interpreting the attorney’s fees provision of section 760.11(5) consistent with federal ease law, we note that since 1992, enhancement of an award of attorney’s fees pursuant to federal fee-shifting statutes has been severely restricted. City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (construing the fee-shifting provisions of the Solid Waste Disposal Act and the Clean Water Act and holding that enhancement for contingency of attorney fees awarded to the prevailing party is not permitted); see also First Fed. Sav. & Loan Ass’n of the Palm Beaches v. Bezotte, 740 So.2d 589, 591 (Fla. 4th DCA 1999) (stating that in Dague, the Supreme Court “effectively eliminated the application of contingency multipliers to fee awards made pursuant to a federal fee-shifting statute”).

In Dague, 505 U.S. at 558, 112 S.Ct. 2638, the Supreme Court considered whether the trial court could enhance the statutorily authorized fee award above the lodestar amount “to reflect the fact that the party’s attorneys were retained on a contingent-fee basis and thus assumed the risk of receiving no payment at all for their services.” The prevailing party in Dague argued that a reasonable fee for an attorney under this type of statute should go beyond the lodestar figure and “replicate the economic incentives that operate in the private legal market, where attorneys working on a contingency-fee basis can be expected to charge some premium over their ordinary hourly rates.” Id. at 562, 112 S.Ct. 2638.

Writing for the majority, Justice Scalia initially observed that “an enhancement for contingency would likely duplicate in substantial part factors already subsumed in the lodestar,” id., such as the difficulty of proving the case. Considering that factor again “amounts to double counting.” Id. at 563, 112 S.Ct. 2638. “Thus, enhancement for the contingency risk posed by each case would encourage meritorious claims to be brought, but only at the social cost of indiscriminately encouraging non-meritorious claims to be brought as well. We think that an unlikely objective of the ‘reasonable fees’ provisions.” Id.

Bague has been applied consistently to preclude the use of a multiplier in attorney’s fee awards pursuant to fee-shifting statutes. In an analogous suit against an employer, the Eleventh Circuit Court of Appeals examined the use of a multiplier in a Title VII gender discrimination case in McKenzie v. Cooper, Levins & Pastko, Inc., 990 F.2d 1183 (11th Cir.1993). In reversing the contingency enhancement portion of the award, the court relied upon Bague to state:

In June 1992, however, the Supreme Court determined that enhancement for contingency is not permitted under federal fee-shifting statutes. City of Burlington v. Dague, 505 U.S. 557, [561-63, 565-69], 112 S.Ct. 2638, 2641, 2643-44, 120 L.Ed.2d 449 (1992); see also Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758 n. 2, 109 S.Ct. 2732, 2735 n. 2, 105 L.Ed.2d 639 (1989) (holding that case law construing “reasonable” fees applies to all similar federal fee-shifting statutes). This holding effectively overruled Lattimore [v. Oman Construction, 868 F.2d 437, 439-40 (11th Cir.1989) ]. We must therefore reverse the contingency enhancement granted by the district court.

McKenzie, 990 F.2d at 1186; see also Lanni v. N.J., 259 F.3d 146, 151 (3d Cir.2001) (contrasting the law of the federal Americans With Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD), which “diverge on the question of the availability of multiplier enhancements for contingency of compensation. While there is no basis for such enhancements under the ADA, they are permissible under the LAD.”); Moore v. United States, 63 Fed.Cl. 781, 789 n. 15 (Fed.Cl.2005) (accepting counsel’s concession that a multiplier would not be appropriate under the statutory fee-shifting provisions of the Uniform Real Property Relocation Act but not deciding issue in the context of a common fund).

Based on Bague and its progeny, federal case law precludes the use of a multiplier to enhance an attorney’s fee award in a Title VII case. Applying this federal case law as the Florida Legislature requires, § 760.11(5), we hold that the trial court erred in finding that Quanstrom, 555 So.2d 828, permitted the upward adjustment of the lodestar fee to compensate for the contingent nature of this employment discrimination case.

We concur with the following view expressed by the federal Seventh Circuit:

The United States Code and its implementing rules are the work of thousands of different actors over scores of years; consistency is not possible. But what this means is that all of these different systems could be thought rational solutions to the question “how much may plaintiffs be allowed to spend for legal services, how much of that must be paid for by the losing side, and how much of the cost of litigation will be covered by the public fisc?” Litigation produces benefits (and sometimes costs) for third parties; it is to this extent a public good, and determining how much of a public good to supply (and at whose cost) is an intractable problem. The American Rule is a rational approach; the British loser-pays rule is a rational approach; asymmetric fee-shifting in § 1988 is a rational approach; asymmetric fee shifting plus compensation for the risk of loss in order to induce counsel to be indifferent between paying clients and chancy constitutional claims would be rational (and is used in common-fund cases, though not under statutes such as § 1988,) and fee caps such as the [Federal Tort Claims Act], the [Equal Access to Justice Act], and the [Prison Litigation Reform Act] also represent rational approaches.... These are simply different legislative solutions to an enduring problem; in a democracy, each of these options is open to the people’s representatives.

Johnson v. Daley, 339 F.3d 582, 591 (7th Cir.2003) (citation omitted).

In section 760.11(5), the Florida legislature has mandated that the determinations of the federal judiciary shall govern Florida courts. Accordingly, a multiplier is inappropriate under the statutory fee-shifting provisions in this context. Therefore, we must strike the enhanced attorney’s fee award to Ms. Carter. We remand with instructions to enter a reasonable attorney’s fee in the lodestar amount of $63,788.50.

Affirmed in part, reversed in part, and remanded.

FULMER, C.J. and DAVIS, J., Concur.

      . § 760.10(7), Fla. Stat. (2003).

      . "In cases in which reinstatement is not viable because of continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by the plaintiff as a result of the discrimination, courts have ordered front pay as a substitute for reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001).

      . In her cross-appeal, Ms. Carter claims the trial court erred in reissuing its order denying the Hospital's renewed motion for directed verdict. The Hospital had claimed in its motion to vacate and reissue the order that its counsel did not receive a copy of the order in time to file an appeal due to misdirection on the mailing envelope.

      . The question of Dague’s applicability to common-fund cases remains unsettled. See Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 141 P.3d 824, 832 (2006) ("The majority view is that Dague’s rationale for not using a multiplier in the fee-shifting context is inapplicable in the common fund context.”).


text:
    Gwendolyn L. TAYLOR, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Debbies Accounting Service Inc., Appellee.
    No. 1D06-5167.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Gwendolyn L. Taylor, pro se, Appellant.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Contrera v. Fla. Unemployment Appeals Comm’n, 893 So.2d 609 (Fla. 1st DCA 2005).

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., concur.


text:
    Sylvester Vernon PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4355.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2007.

      James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fitzpatrick v. State, 868 So.2d 615 (Fla. 2d DCA 2004), rev. denied, 891 So.2d 550 (Fla.2004).

PLEUS, C.J., SAWAYA, and EVANDER, JJ., concur.


text:
    Sheila DIXON, Petitioner, v. MIAMI-DADE COUNTY, Dept. of Corrections & Rehabilitation & Risk Management Division, Respondents.
    No. 1D06-1429.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2007.
    Adrienne L. Hausser and Edward F. DeVarona of Law Offices of Edward De Varona, PA, Miami, for Petitioner.
    Murray A. Greenberg, Miami-Dade County Attorney, and Douglas W. Rice, Assistant County Attorney, Miami, for Respondents.
   PER CURIAM.

DENIED. See Vazquez v. Wendy’s, 931 So.2d 152 (Fla. 1st DCA 2006).

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


text:
    Roberto MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1172.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2007.
    Roberto Martinez, pro se, Appellant.
    Bill McCollum, Attorney General, Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the imposition of liens on his inmate trust account for court costs incurred in his challenge of a disciplinary report and for filing this appeal. The disciplinary report resulted in Appellant losing the ability to earn gain-time during the time he served in disciplinary confinement, and also affects his ability to be released on parole. Because Appellant’s challenge of the disciplinary report directly affects the time he would serve in prison, the trial court erred by imposing the liens on Appellant’s inmate account. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Jackson v. McDonough, 31 Fla. L. Weekly D2299, — So.2d -, 2006 WL 2527244 (Fla. 1st DCA Sept. 5, 2006); Yasir v. McDonough, 31 Fla. L. Weekly D1459, — So.2d -, 2006 WL 1419271 (Fla. 1st DCA, May 25, 2006).

The orders imposing liens for costs of challenging the disciplinary action and for filing this appeal are REVERSED.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Brian Keith ARNOLD, Appellee.
    No. 1D06-1460.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2007.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals the imposition of a downward departure sentence after appel-lee, Brian Keith Arnold, was convicted of carrying a concealed firearm and aggravated assault with a deadly weapon. Because the trial court did not provide any valid legal reason for departure that is supported by competent, substantial record evidence, we REVERSE and REMAND for resentencing. See Demoss v. State, 843 So.2d 309, 311 (Fla. 1st DCA 2003) (citing Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)).

ALLEN, PADOVANO, and LEWIS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Shannon GOULD, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3831.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2007.
   NORTHCUTT, Judge.

Shannon Gould appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court denied Gould’s motion in the belief that it was successive. The court was mistaken. Therefore, we reverse and remand for further proceedings.

In his rule 3.850 motion, Gould alleged four ineffective assistance of counsel claims. The postconviction court, relying on Vining v. State, 827 So.2d 201, 213 (Fla.2002), denied Gould’s motion as successive because Gould had previously filed a motion alleging that his counsel was ineffective for failing to file a direct appeal.

However, “[a] motion for post-conviction relief filed solely for the purpose of obtaining a belated appeal does not render a subsequent post-conviction relief motion successive when the latter motion alleges ineffective assistance of counsel based on other grounds.” Reed v. State, 768 So.2d 1239, 1239 (Fla. 3d DCA 2000); Owens v. State, 721 So.2d 1210, 1211 (Fla. 1st DCA 1998); Kiser v. State, 649 So.2d 333, 334 (Fla. 1st DCA 1995). Gould’s January 5, 2004, petition was filed solely for the purpose of obtaining a belated appeal in circuit court case CF-02-03433A-XX. Gould’s June 15, 2006, rule 3.850 motion alleged four ineffective assistance of counsel claims based on other grounds. Therefore, Gould’s June 15, 2006, rule 3.850 motion is not successive.

Accordingly, we reverse the postconviction court’s order and remand for the post-conviction court to reconsider the June 15, 2006, rule 3.850 motion.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ„ Concur.


author: WHATLEY, Judge.

text:
    Leonardo GOMEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3660.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2007.
   WHATLEY, Judge.

Leonardo Gomez appeals the summary denial of his motion for postconviction relief and supplemental motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

On October 13, 2005, Gomez filed a timely rule 3.850 motion raising five claims for relief. On November 16, 2005, the post-conviction court ordered the State to respond to Gomez’s rule 3.850 motion. The State filed its response on January 9, 2006, and Gomez filed a reply to the State’s response on January 30, 2006. On February 6, 2006, Gomez filed a timely supplement to his rule 3.850 motion adding two new. claims for relief. On June 22, 2006, the postconviction court summarily, denied Gomez’s rule. 3.850 motion but apparently failed to rule on Gomez’s supplemental motion.

In order to determine with certainty whether an order was issued on Gomez’s supplemental motion, we ordered a response from the clerk’s office with specific instructions to indicate to this court whether a separate order had been entered on Gomez’s supplemental motion. However, the clerk’s office failed to comply with our order in this regard. Subsequently, we issued a second order for a supplemental response from the clerk’s office which the clerk’s office also failed to completely answer. Based on the limited record before this court and the responses we have received to our inquiries, we can only assume that no order has been entered. Accordingly, we affirm the summary denial of Gomez’s rule 3.850 motion. However, we reverse the order with respect to Gomez’s supplemental motion, and we remand for the postconviction court to consider such. On remand, the postconviction court must determine whether Gomez’s claims are facially sufficient and, if so, must either attach portions of the record to its order demonstrating that Gomez is not entitled to relief or conduct an evidentiary hearing.

Affirmed in part, reversed in part; and remanded.

SALCINES and CANADY, JJ., Concur.


author: STEVENSON, C.J.

text:
    Antonio RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1143.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.

      Franklin Prince, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

Antonio Rodriguez was charged with carrying a concealed firearm after a gun fell from his waistband when police stopped a vehicle he was driving and ordered both him and the passenger from the car. Rodriguez sought to suppress the evidence, arguing that police stopped the car in the absence of a reasonable suspicion of criminal wrongdoing. The trial court denied the motion to suppress and, thereafter, Rodriguez pled no contest to the charge, reserving the right to appeal the trial court’s ruling. We find merit in Rodriguez’s claim that police lacked the reasonable suspicion required to support the stop and reverse.

Evidence at the suppression hearing established that at 10:47 p.m., on July 21, 2005, an armed robbery took place at a Subway restaurant on Okeechobee Boulevard. A BOLO was issued, describing the suspect as a black male, approximately 5'9" tall, wearing a black hooded shirt or sweater, black baggy pants and black sneakers, and carrying a silver revolver with a brown handle. Police set up a perimeter.

At 11:20 p.m., thirty-three minutes after the robbery, Deputies Ribeiro and Reed joined the perimeter at the intersection of Meridian and Elmhurst — some two blocks to the east and four blocks to the south of the restaurant, a distance of approximately one-quarter mile. Deputies Ribeiro and Reed testified that they were stopping cars as they went by so they could look inside to determine that no one matching the suspect’s description was hiding in the vehicle.

Deputies Ribeiro and Reed observed a maroon Explorer traveling east and occupied by two men. The officers observed that the passenger was a black male, who was sweating profusely and nervously staring at the officers. They stopped the vehicle, testifying that the reason they did so was because the passenger fit the description in the BOLO. Ribeiro admitted that, at the time the stop was initiated, he could not determine the passenger’s height and “the only thing [he] had” was a black male, sweating profusely, and staring at him. Reed admitted he could not see the sneakers or “immediately” see the black shirt.

Ribeiro approached the passenger side of the vehicle, while Reed went to the rear. Reed observed a black hooded sweater or sweatshirt through the rear window and advised Ribeiro. In the meantime, Ribeiro observed the passenger attempting to conceal a brown bag between the passenger seat and center console. Ribeiro directed the passenger to show his hands and to exit the vehicle. Deputy Thomas arrived as back-up. After Ribeiro removed the passenger and informed Thomas that he saw the passenger moving “something” around in the vehicle, Thomas ordered the driver, Antonio Rodriguez, from the car. As Rodriguez was exiting the vehicle, a gun fell from his waistband. Rodriguez was arrested.

In order for the stop of a vehicle and the temporary detention of its occupants to pass muster under the Fourth Amendment, police must have a reasonable suspicion of criminal activity to justify the stop. See, e.g., State v. Moore, 791 So.2d 1246, 1249 (Fla. 1st DCA 2001). A mere hunch is insufficient. See, e.g., Stennes v. State, 939 So.2d 1148, 1150 (Fla. 4th DCA 2006). The instant case involves a stop as a consequence of a BOLO and, under this circumstance, several factors are relevant in assessing the propriety of the stop: “the length of time and distance from the offense, route of flight, specificity of the description of the vehicle and its occupants, and the source of the BOLO information.” Sapp v. State, 763 So.2d 1257, 1258-59 (Fla. 4th DCA 2000) (citing Sumlin v. State, 433 So.2d 1303, 1304 (Fla. 2d DCA 1983)). “Other information which is relevant to determine the validity of the stop includes the time of day, the absence of other persons or vehicles in the vicinity of the sighting, any other suspicious conduct, and other activity consistent with guilt.” Id. at 1259.

Salem v. State, 645 So.2d 1023 (Fla. 2d DCA 1994), is instructive. There, at 10:14 p.m., an officer was doing undercover robbery surveillance at a Burger King. The officer received a radio dispatch that a Dairy Queen, one mile from his location, had just been robbed. The suspect was described as a black male, 5'10" tall, medium build, wearing a blue sweatshirt, and carrying a semi-automatic weapon. Id. at 1024. It was not known whether the suspect fled on foot or in a car nor what direction he had fled. At 10:40 p.m., some twenty-six minutes later, the officer at the Burger King observed a car pull into a closed medical office parking lot. The car’s occupant turned on the dome light, did something with his hands, turned the light off and then drove to the parking lot of another closed medical building and did the same thing. The only thing the officer could observe about the driver was that he was a black male. After the car pulled out the second time, the officer stopped the car. On these facts, the Second District held that the stop was not supported by a “reasonable-suspicion” of criminal activity, noting that while the BOLO may have been relatively specific, the officer was able to verify only that the driver was a black male and that while it was possible to view his actions in the parking lots as suspicious, it was also possible there was an innocent explanation, i.e., checking his wallet or reading directions. Id. at 1025; see also Sanders v. State, 666 So.2d 1035 (Fla. 1st DCA 1996).

After applying the relevant factors to the circumstances of this case, we find that police lacked the requisite reasonable suspicion of criminal activity and, thus, reverse the order denying Rodriguez’s motion to suppress. First, while Deputy Ri-beiro testified that the source of the BOLO was the officers who responded to the scene of the robbery, the evidence failed to demonstrate whether the responding officers actually observed the suspect or were simply relaying a description provided by some third party. Second, while the BOLO description was relatively specific, the vehicle was stopped because its passenger happened to be a black male within a quarter mile of a robbery that took place a little more than a half hour before. None of the other details, i.e., the passenger’s height and clothing, were ascertainable prior to the stop. Third, police had no information that the suspect was traveling in a vehicle and no information concerning the suspect’s direction of travel. Finally, the only suspicious activity the passenger was guilty of was sweating and looking at the officer.

Reversed.

STONE and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    A.G. EDWARDS & SONS, INC., Appellant, v. Harriet H. DUBLON, individually, as Trustee of the Harriet H. Dublon Trust, and as Beneficiary of the Richard J. Dublon Trust, Appellee.
    No. 4D06-3502.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.

      Marc S. Dobin and Brian D. Buckstein of Dobin & Jenks, LLP, Jupiter, for appellant.
    Jack Scarola and Patrick E. Quinlan of Searcy, Denney, Scarola, Barnhart & Ship-ley, P.A., West Palm Beach, for appellee.
   KLEIN, J.

Harriet Dublon brought this action against A.G. Edwards & Sons, Inc. for losses which occurred in two different accounts. The trial court ruled that, as to the account in which she signed the account agreement, she had to arbitrate all but one of the numerous claims involving that account. As to the other account, a trust account in which she was the beneficiary, but not the signatory, the court ruled that she was not required to arbitrate. We affirm the latter, but reverse in part the former.

The claims, which were also against her account executive, Ronald Flint, alleged conversion, unjust enrichment, breach of fiduciary duty, fraud, negligence and other causes of action. As to the first account, in which she signed the contract opening the account as trustee of the Harriet H. Dublon Trust, the trial court ruled that all of the accounts except the claim for breach of fiduciary duty were subject to arbitration. The breach of fiduciary claim specifically was based on the allegation that A.G. Edwards had failed to warn her that Flint, her broker for A.G. Edwards, had been fired for engaging in improper conduct. It was further alleged that she remained with Flint after he left A.G. Edwards and transferred her account to another company, resulting in more losses.

The relevant arbitration provisions for both accounts are:

This Agreement sets forth the terms and conditions governing the UltraAsset Account (the “UAA”) financial service to which the undersigned is applying with A.G. Edwards & Sons, Inc. (Edwards).
In consideration for Edwards ... accepting one or more accounts of the undersigned ... the undersigned agrees as follows:
The undersigned agrees, and by carrying any account for the undersigned, Edwards agrees that all controversies between the undersigned and Edwards ... that may arise for any cause whatsoever shall be determined by arbitration
This arbitration provision shall apply to any controversy or claim or issue in any controversy arising from events which occurred prior, on or subsequent to the execution of this arbitration agreement. ...

The trial court found that the breach of fiduciary duty to warn was not arbitrable based on Episcopal Diocese v. Prudential Securities, Inc., 925 So.2d 1112, 1113 (Fla. 5th DCA), rev. denied, 939 So.2d 93 (2006). In that case the fifth district held that a claim of breach of fiduciary duty based on the failure to warn was not arbitrable under the following arbitration provision:

I agree that all controversies which may arise between us concerning any transaction (whether executed or to be executed within or outside of the United States), (sic) my account or this or any other agreement between us, whether entered into prior, on, or subsequent to the date indicated on the signature page, shall be determined by arbitration.

The contract in the present case requires arbitration of “all controversies ... that may arise for any cause whatsoever.” It does not contain the “concerning any transaction” language which existed in Episcopal Diocese. This broader arbitration language covers the breach of fiduciary duty to warn claim advanced in this case. And there is a sufficient connection between the dispute and the contract containing the arbitration clause to satisfy Seifert v. United States Home Corp., 750 So.2d 633 (Fla.1999).

We next address whether the claims involving the Richard M. Dublon Trust account, the second account, must be arbitrated. This trust was created when Richard passed away in 1992, pursuant to the terms of a marital trust, and the trustee of the trust was Flint, with Harriet as the beneficiary. Although Harriet did not sign this account agreement, A.G. Edwards argues that the first account agreement, which she did sign, requires her to arbitrate any claims involving this separate account. It relies on A.G. Edwards & Sons, Inc. v. Myrick, 88 Ark.App. 125, 195 S.W.3d 388 (2004), in which the agreement provided that the arbitration clause applied to any controversy “arising out of this agreement ... or any account with Edwards.” The account agreement in this case does not, however, contain that broad language. Rather, the agreement Harriet signed provided:

This Agreement sets forth the terms and conditions governing the UltraAsset Account (the “UAA”) financial service to which the undersigned is applying with A.G. Edwards & Sons, Inc. (Edwards).

Myrick is accordingly distinguishable. Nor does the fact that Harriet is the beneficiary of the trust, in and of itself, bind her to arbitration, in the absence of her signature to the account agreement. Morgan Stanley DW, Inc. v. Halliday, 873 So.2d 400 (Fla. 4th DCA 2004).

We accordingly reverse for arbitration of all claims on the account signed by Harriet and affirm in all other respects.

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


text:
    Rafiq Rehman RASHDI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3190.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Robert G. Amsel of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Rafiq Rehman Rashdi seeks review of an order that summarily denied his rule 3.850 motion through which he sought to withdraw his plea as involuntary. Rash-di’s claim centers on his allegation that he was never advised by the trial court that his plea may subject him to deportation. See Fla. R.Crim. P. 3.172(c)(8). Considering the Florida Supreme Court’s most recent pronouncement in State v. Green, 944 So.2d 208 (Fla.2006), coupled with its previous decision in State v. Seraphin, 818 So.2d 485 (Fla.2002), this case is reversed and remanded to the trial court for an evidentiary hearing.

POLEN, SHAHOOD and MAY, JJ., concur.


author: HAZOURI, J.

text:
    Richard BURGOS and Duran Schmidt, Appellants, v. Jose A. BURGOS, Appellee.
    No. 4D06-1065.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Kenneth Eric Trent of Kenneth Eric Trent, P.A., Fort Lauderdale, for appellants.
    No appearance for appellee.
   HAZOURI, J.

Appellants, Richard Burgos and Duran Schmidt, appeal from the trial court’s order granting attorney’s fees to appellee, Jose A. Burgos, pursuant to section 57.105, Florida Statutes (2005). We reverse.

Appellants filed a complaint for defamation against appellee on May 25, 2005. Appellee filed a motion to dismiss on June 7, 2005. Appellee filed his Answer and Affirmative Defenses on June 14, 2005. In the Answer, after denying the allegations, appellee requested the court to set the case for trial and “award attorney’s fees pursuant to F.S. 57.105.” Appellee asserted truth as his affirmative defense.

On January 20, 2006, appellants filed their Notice of Voluntary Dismissal which had been faxed and mailed to appellee’s attorney on January 12, 2006.

On January 23, 2006, appellee filed his Motion for Attorney’s Fees alleging that “this matter clearly had no justiciable issues” and requested fees under section 57.105, Florida Statutes. The trial court granted the appellee’s request for attorney’s fees, awarding fees in the amount of $1,280.

Section 57.105(4), Florida Statutes (2005), provides: “A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”

In Vanderpol v. Frengut, 932 So.2d 1251 (Fla. 4th DCA 2006) (quoting Maxwell Building Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004)), this court stated:

The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of subsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Having the parties police themselves, instead of requiring judicial intervention on section 57.105 issues, promotes judicial economy and minimizes litigation costs.

Vanderpol, 932 So.2d at 1253.

The appellee failed to comply with the requirements of section 57.105(4). Therefore, the trial court erred in granting attorney’s fees under section 57.105. We reverse with directions that the trial court vacate the order awarding attorney’s fees.

Reversed with Directions.

GUNTHER and POLEN, JJ., concur.


text:
    Candido MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3048.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Candido Martinez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Staveley v. State, 866 So.2d 1239 (Fla. 5th DCA 2004).


author: SUAREZ, J.

text:
    Juan Rene SAID, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1670.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

This is an appeal from an order of revocation of probation and sentence, entered upon a guilty plea, and a conviction and sentence for direct criminal contempt. We reverse and remand.

In 2004, the defendant was sentenced for grand theft auto and placed on probation for a period of one year. In 2005, he pled guilty to a violation of probation for use of drugs. As part of the terms of the plea agreement, the defendant agreed to plead guilty in exchange for a sentence of five years with a furlough with the possibility of mitigating the sentence by assisting the police conditioned upon favorable results for his assistance. At the defendant’s plea colloquy, he admitted his violation of probation, and the trial judge revoked the defendant’s probation and sentenced him to five years in state prison with a thirty-day furlough to give him a chance to mitigate his sentence. The terms of the plea included providing Detective Edwards of the Miami-Dade Police Department with information leading to the recovery of a '66 Corvette engine and locating a chop shop in Cutler Ridge, at least seven vehicles, five to seven air boat parts and a Miami fencing operation.

At the defendant’s sentencing hearing, Detective Edwards reported on the status of the defendant’s cooperation. He testified that the defendant produced a chop shop with several stolen vehicle parts, a Corvette and a stolen handgun as well as a lead to a tractor. The detective was of the opinion that the defendant had accomplished one-third of what he had agreed to do. The trial judge sentenced the defendant to five years and reduced the sentence to four-and-one-half years plus time served with the addition of six months for direct criminal contempt of court for using profanity when the sentence was pronounced. The judge stated on the record that one year of the sentence was for aggravating circumstances. The trial judge failed to delineate on the record the reasons for the aggravating circumstances as part of the sentence. Because the trial judge erred in basing his sentence on unspecified aggravating circumstances, we reverse the sentence and remand for an evidentiary hearing based strictly upon the terms of the plea agreement underlying the probation violation as outlined in the record. See McCoy v. State, 599 So.2d 645 (Fla.1992); Espinosa v. State, 688 So.2d 1016 (Fla. 3d DCA 1997); Fla. R.Crim. P. 3.170(g).

We also reverse the sentence for direct criminal contempt on grounds that the defendant was neither afforded the opportunity to show cause why he should not be adjudged in contempt nor to present mitigating circumstances. See Poitier v. Spears, 750 So.2d 767 (Fla. 3d DCA 2000); Thaxton v. State, 525 So.2d 1009 (Fla. 3d DCA 1988).

Reversed and remanded with directions.

      . The detective stated that the defendant provided false leads on interrelated narcotics investigations which were occurring in conjunction with the chop shop offenses. Help in the narcotics investigation was not part of the plea colloquy specified by the court to mitigate the sentence.