author: LaROSE, Judge.

text:
    Joseph Salvatore SANTORO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3362.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
    James Marion Moorman, Public Defender, and Raymond Dix,' Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Joseph Salvatore Santoro appeals his convictions and sentences for eighteen counts of felony bookmaking. We affirm. Mr. Santoro argues that the State failed to prove that he committed the crimes in Florida. We write to address his claim that United States v. Truesdale, 152 F.3d 443 (5th Cir.1998), a case dealing with offshore bookmaking, compels reversal. As we explain below, Truesdale is unavailing. Mr. Santoro also argues that the State failed to prove his intent to commit multiple offenses and that the State relied on improper identification evidence to convict him. Mr. Santoro failed to preserve these alleged errors in the trial court; he has not demonstrated fundamental error. Thus, we reject these arguments without further discussion.

Between late 2001 and early 2002, the Collier County Sheriffs Office investigated Mr. Santoro’s bookmaking operations. Mr. Santoro contacted an undercover officer and asked if he wanted to place bets. Mr. Santoro confirmed the events on which the officer would like to place bets, informed the officer of his dollar limits, and provided toll-free service numbers and an identification number for placing bets. Mr. Santoro also gave the officer his personal phone number. Thereafter, the undercover officer placed numerous bets by phone with unknown individuals using the service numbers provided by Mr. Santoro.

On one occasion, Mr. Santoro met the officer in Naples and paid him $1500 for bets made during the undercover operation. A week later, the officer and Mr. Santoro spoke by phone to arrange a $1150 payment by the officer. Mr. Santo-ro instructed the officer to send the money to Mr. Santoro’s Fort Lauderdale address. The sheriffs office sent the money to that address. The betting continued after Mr. Santoro arranged for an increase in the undercover officer’s betting limits. A final meeting occurred at an exit off Interstate 75 in mid-February, where the officer paid a $1200 betting debt to Mr. Santoro.

The State filed an information charging Mr. Santoro, as a principal, with bookmaking.

The term “bookmaking” means the act of taking or receiving, while engaged in the business or profession of gambling, any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of [man] ... or upon the result of any chance, casualty, unknown, or contingent event whatsoever.

See § 849.25(l)(a), Fla. Stat. (2001). The bookmaking statute lists factors to be considered in determining whether a person has engaged in the offense of bookmaking:

1. Taking advantage of betting odds created to produce a profit for the bookmaker or charging a percentage on accepted wagers.
2. Placing all or part of accepted wagers with other bookmakers to reduce the chance of financial loss.
3. Taking or receiving more than five wagers in any single day.
4. Taking or receiving wagers totaling more than $500 in any single day, or more than $1500 in any single week.
,5. Engaging in a common scheme with two or more persons to take or receive wagers.
6. Taking or receiving wagers on both sides on a contest at the identical point spread.
7. Any other factor relevant to establishing that the operating procedures of such person are commercial in nature.

See § 849.25(l)(b).

The trial court instructed the jury that in order to convict Mr. Santoro, the State had to prove (1) that he engaged in the business or profession of gambling; (2) that while so engaged, he took or received a bet or wager; and (3) that the bet or wager was upon the result of a trial or contest of skill, speed, power, or endurance of man. See § 849.25(l)(a); Fla. Std. Jury Instr. (Crim.) 22.14. The trial court also instructed the jury to consider the section 849.25(l)(b) factors in making its deliberations. See Fla. Std. Jury Instr. 22.14.

Finally, the trial court gave the jury the standard principal instruction:

If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did, if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to, and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.
To be a principal, the defendant does not have to be present when the crime is committed or attempted.

Fla. Std. Jury Instr. 3.5(a); see also § 777.011, Fla. Stat. (2001). The jury found Mr. Santoro guilty of all charges.

Mr. Santoro claims that the bets were made offshore, most likely in Costa Rica. Therefore, he argues, the State failed to prove that gambling occurred in Florida. Mr. Santoro bases his argument on United States v. Truesdale, 152 F.3d 443. His reliance is misplaced. Truesdale involved a bookmaking prosecution under 18 U.S.C. § 1955. The federal statute prohibits conducting, financing, managing, supervising, directing, or owning “‘all or part of an illegal gambling business,’ ” specifically a gambling business that “ ‘violates state or local law.’ ” Id. at 446 (quoting § 1955). The Truesdale jury received instructions covering only the Texas bookmaking statute. Id. at 447. On appeal, the appellants argued a lack of evidence showing that they conducted illegal bookmaking in Texas. No bets were received, recorded, or forwarded in Texas; the bets were placed in Jamaica and in the Dominican Republic. Id.

The Fifth Circuit Court of Appeals reversed, concluding that the prosecution presented insufficient evidence to show beyond a reasonable doubt that the appellants conducted bookmaking in Texas. Significantly, although acting as a custodian of money used to place offshore bets violates the Texas statute, the federal indictment did not allege and the jury was not instructed that Mr. Truesdale violated that statutory provision. Id. at 448-49. But for these omissions, the convictions might have been sustained. See United States v. Atiyeh, 402 F.3d 354, 371 (3d Cir.2005).

In Mr. Santoro’s case, the jury heard evidence that he supplied the undercover officer in Florida with toll-free phone numbers and an identification number to call to place bets. Mr. Santoro also gave the officer his Broward County phone number in case any problems arose, so that Mr. Santoro could resolve any problems from Florida. The officer placed bets mostly on football games. Mr. Santoro told the officer in Florida that he could bet up to $500 per game and up to $1500 per week. The officer met with Mr. Santoro on multiple occasions in Florida to exchange gambling money, and Mr. Santoro, from Florida, arranged an increase in the officer’s betting limit. The information specifically alleged violations of section 849.25(l)(a). The trial court properly instructed the jury on the statutory elements of the charged offenses and on the principal theory.

The circumstances surrounding Mr. Santoro’s offenses render Truesdale inap-posite. Accordingly, his convictions and sentences are affirmed.

Affirmed.

NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, concur.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    Stephen RICHTER, et al., Appellant, v. BEACH WOODS PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 5D05-4340.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.

      Clifford R. Repperger, Jr., of Gray Robinson, P.A., Melbourne, for Appellant.
    Joan H. Bickerstaff of Joan H. Bicker-staff, P.A., Melbourne, for Appellee.
   PALMER, J.

Stephen and Jan Richter appeal the final summary judgment entered by the trial court in favor of Beach Woods Property Owners Association on its claim to foreclose a lien on the Richters’ property. In reviewing the summary judgment, our court must consider the evidence contained in the record in the light most favorable to the non-moving party. Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003). Here, the affidavits filed by the Richters rebut Beach Woods’ contention that no genuine issue of material fact exists. Accordingly, entry of summary judgment was not proper. Therefore, we reverse the instant summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

THOMPSON and LAWSON, JJ., concur.


author: PER CURIAM.

text:
    Charlie T. WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-1006.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.
    Charlie T. Washington, East Palatka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Defendant, Charlie T. Washington, who was convicted and sentenced in two cases, petitions for a belated appeal. We deny the petition. When this court affirmed the denial of his third Rule 3.800(a) motion in 2003, we expressly warned Washington that further collateral attacks on his convictions and sentences would be successive and improper. Washington v. State, 838 So.2d 699 (Fla. 5th DCA 2003). We also warned the defendant against further pro se collateral attacks when he appealed the denial of his fourth Rule 3.800(a) motion in 2004. Washington v. State, 867 So.2d 649 (Fla. 5th DCA 2004). Undaunted, the defendant has continued to attack his convictions and sentences in his two cases.

Because the defendant continues to waste the judicial resources of this court, we issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We have received and find no merit to his response. As Washington has repeatedly abused the judicial system in this regard, he qualifies for this court’s “enough is enough” rule. See Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). We hold that Washington is precluded from filing any additional pro se appeals, pleadings, motions or petitions pertaining to his convictions and sentences for case numbers 98-1849-CFMA and 99-381-CFMA, Seventh Judicial Circuit, in and for Putnam County, unless reviewed and signed by an attorney licensed to practice in the State of Florida. The clerk of this court is directed not to accept from Washington, as petitioner or appellant, any further pro se pleadings or filings relating to those cases. See Jackson v. Florida Dep’t of Corr., 790 So.2d 398 (Fla.2001), cert. denied, 536 U.S. 908, 122 S.Ct. 2365, 153 L.Ed.2d 186 (2002); Vickson v. Singletary, 734 So.2d 376 (Fla.1999); Medberry v. State, 824 So.2d 1058 (Fla. 5th DCA 2002), mandamus denied, 874 So.2d 1192 (Fla.2004); Isley.

PETITION FOR BELATED APPEAL DENIED.

ORFINGER, MONACO and EVANDER, JJ., concur.


author: PER CURIAM. BROWNING, C.J.,

text:
    Aldrin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2032.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    M. Lilja Dandelake of Frank E. Sheffield, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

BARFIELD and ROBERTS, JJ., concur; BROWNING, C.J., concurs with written opinion.

BROWNING, C.J.,

concurring.

I concur with the result. I write only to state that Appellant’s sentence is clearly illegal and this court would be compelled to reverse had Appellant preserved such sentencing error as required. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003); see also Fla. R.Crim. P. 3.800(b), and § 958.04(2), Fla. Stat. (2001).


text:
    Thomas MARTONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4064.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Maury Halperin, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Thomas Martone appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The sole issue before the trial court at the evidentiary hearing on the motion was whether Martone’s trial attorney rendered ineffective assistance by failing to properly advise him of the consequences of declining a lenient plea offer allegedly made by the state. The trial court denied the njotion based on the court’s finding that the state had not made any plea offers. The prosecutor unequivocally testified that he had not made a plea offer. Thus, although the evidence was conflicting, this court must defer to the trial court’s factual finding on this point, as it was supported by competent substantial evidence. See Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999).

Affirmed.

WARNER, KLEIN and HAZOURI, JJ., concur.


author: COLBATH, JEFFREY, Associate Judge.

text:
    Michael CAMEROTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4086.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Rehearing Denied Aug. 16, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   COLBATH, JEFFREY, Associate Judge.

Appellant, Michael Camerota, appeals the trial court’s order denying his motion to suppress his confession, which was used against him in four cases. Appellant files this appeal pursuant to Florida Rule of Appellate Procedure 9.140, which allows a defendant to appeal a dispositive order after entering a plea of no contest. We hold (1) appellant failed to reserve the right to appeal the trial court’s ruling on the motion to suppress, and (2) the record is unclear whether the court’s ruling on the motion was dispositive. We therefore dismiss this appeal.

This appeal stems from appellant’s March 30, 2002 arrest for possession of cocaine, possession of drug paraphernalia, and resisting arrest. As a result of his arrest, Camerota was interrogated and gave incriminating statements to police. Defense counsel filed a motion to suppress, asserting various reasons the confession was improperly obtained and should be suppressed. The motion was filed on January 9, 2004, and a hearing on the motion began on June 24, 2004, and spanned several days. On June 29, 2004, the parties discussed Camerota making a conditional plea. The record reveals the following:

[State]: ... [A] plea would be entered by Mr. Camerota if he lost the Motion to Suppress [and] would still preserve his right to appeal....
The Court: ... [I]f I understand what you’re saying, what the State’s offer is, ah, that Mr. Camerota will enter a plea of No Contest to certain charges reserving two things. One, to appeal if denied the Motion to Suppress. Second, the right to withdraw the plea (inaudible) Motion to Suppress. Is that the gist of it ... ?
(Inaudible here)
[State]: (Inaudible) suggest that one charge carries a thirty year sentence and the other charges (inaudible). As to Mr. Camerota, but I think that’s, that is the gist of what we’re saying.

The conditional plea was never tendered to the court, rather, the parties continued with the motion to suppress. The trial court denied the motion to suppress on July 7, 2004, but the defendant did not agree to plea no contest until August 23, 2004. The record is clear, however, that the nature of the plea agreement had changed since the discussions of June 29, 2004.

At the time of the August 23rd plea, there was no discussion regarding the dispositive nature of the ruling on the motion to suppress nor was there any conversation regarding reservation of the right to appeal. Generally, to obtain appellate review of a guilty or no contest plea, the defendant must specifically reserve dispositive issues for appeal in the trial court. See Burns v. State, 884 So.2d 1010, 1012 (Fla. 4th DCA 2004). We hold that the conversations on the record on June 29, 2004, were nothing more than negotiations that did not come to fruition. At the time of appellant’s subsequent plea of no contest, there was no preservation of his appellate rights.

Equally fatal to the appeal is appellant’s failure to establish that the issue was legally dispositive. An issue is legally dispositive only if there will be no trial irrespective of the appellate court’s ruling. See Levine v. State, 788 So.2d 379, 380 (Fla. 4th DCA 2001). Here, the record demonstrates there was incriminating evidence other than appellant’s statements.

Dismissed.

STONE and TAYLOR, JJ., concur.


text:
    Javier RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D07-584.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Javier Rodriguez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.800(a) as to case number 01-13752. As to case number 01-13753, this court finds the appellant’s motions to be without merit and therefore affirms the trial court’s order. As to case number 01-13752, this court was unable to determine the trial court’s ruling. Therefore, this court must reverse for further proceedings. If the trial court again enters an order summarily denying the post-conviction motions as to case number 01-13752, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Patrick MALONE, Appellant, v. Leona M. MALONE, Appellee.
    Nos. 4D06-3364, 4D06-4552.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Rehearing Denied Aug. 7, 2007.
    Richard A. Kupfer of Richard A. Kup-fer, P.A., Delray Beach, for appellant.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Sally S. Benson of Sally S. Benson, P.A., Palm Beach Gardens, for appellee.
   PER CURIAM.

This is an appeal from orders rendered in a case where a former husband sought to modify his alimony obligation. We affirm.

Patrick and Leona Malone were divorced in 1996 after a 27-year marriage. The marital settlement agreement granted the wife permanent alimony of $2,500 per month after she turned 55; once the husband retired, the alimony was to be reduced by the amount the wife received from the husband’s retirement plans. At the time of the 1996 divorce, the husband was a successful worker’s compensation attorney. In 1995, he earned $120,000 in salary and another $30,000 to $70,000 in corporate distributions.

In 2004, the former husband moved for a downward modification of alimony. The former wife counterpetitioned for an alimony increase. The case was referred to a magistrate for an evidentiary hearing. The magistrate recommended that both the petition and counterpetition for modification be denied and that the husband should be held in contempt for nonpayment of alimony.

After a hearing on the former husband’s exceptions, the circuit court entered a detailed order, which we adopt:

In order to be entitled to a permanent modification of his alimony obligation, ... the Former Husband’s burden [is] “to prove an involuntary, substantial, material and permanent change in his financial circumstances, not contemplated in the final judgment of dissolution.” Dervishi v. Dervishi, 905 So.2d 932 (Fla. 4th DCA 2005). The court may apply a “good faith test” in those situations where the change in the obligor’s financial circumstances is temporary. Id. at 934. In order to pass the “good faith test,” the Former Husband must not only incur a reduction in income but must also act in good faith to return his income to its previous level. Rahn v. Rahn, 768 So.2d 1102, 1105 (Fla. 2d DCA 2000).
Former Husband contends that as a result of legislative changes to Florida’s Worker’s Compensation laws in 2003, his income as an attorney practicing in that area has been significantly decreased, a fact noted by the Magistrate and well supported by the record. That does not end the inquiry however. Former Husband cannot choose to remain underemployed but must make a good faith effort to find comparable employment.
At a minimum, those efforts should include some attempt to expand and adapt his practice to areas outside the workers compensation field or close his practice and find work in another firm where he could put his years of experience to good use. It appears from the Court’s own view of the trial testimony that he did neither. Instead, his early efforts consisted of little but placing his girlfriend and her daughter on the payroll. He moved his practice to a less desirable location in a much smaller second floor office, with no elevator access for clients. Phone service with clients was limited to four days a week. Not surprisingly, both his practice and his income shrank. Nonetheless, he continued business as usual in the vain hope that the courts would reverse the legislative enactments.
Former Husband’s belated efforts to find other employment locally were perfunctory at best. He interviewed with only one firm and sent out no resumes. He did not retain any employment agency to assist him in his job search. Despite his interest in doing government work and his twenty years of legal experience, he did not inquire of any local governmental or State agencies as to any employment opportunities.
Former Husband’s backup plan was to buy a home in Georgia and find more reasonable employment there. Toward that end, he sold his Florida residence for in excess of $800,000 and purchased a new home in Georgia, mortgage free, in which he deeded a one-half interest to his girlfriend. Because the house is within commuting distance of Atlanta, Former Husband anticipates he can obtain a job with the federal government, possibl[y] doing Social Security work. Yet, Former Husband has done very little in the way of actually soliciting employment in Georgia, aside from registering on the internet with an employment agency and a newspaper in Atlanta. Two weeks prior to the hearing, he sent his resume to an Atlanta headhunter service. To date, he has no viable prospects and has had no job interviews. More importantly, Former Husband is not a member of the Georgia Bar and is uncertain to what extent, if any, he can even practice his profession without first passing the Georgia Bar exam and becoming licensed in Georgia. It appears Former Husband has no plans to take the Bar exam. If he is unable to practice law in Georgia, it is highly unlikely he will be able to obtain comparable employment. refused to modify the husband’s petition for alimony where he attended only three interviews and did not go in person to apply for a job. Moreover, his decision to start his own business rather than seeking comparable employment was found to have further contributed to his being voluntarily underemployed. Also, in Robinson v. Robinson, 597 So.2d 415 (Fla. 4th DCA 1992), the Fourth District affirmed the trial court’s denial of the husband’s petition for modification where the husband failed to take advantage of available job opportunities and conducted only a cursory job search. In Kovar v. Kovar, 648 So.2d 177, 178 (Fla. 4th DCA 1994), the trial court was permitted to impute income to an underemployed husband whose job search was inadequate, consisting of only a few resumes having been sent out and only a couple of interviews. The cases relied upon by the Former Husband are factually inapposite inasmuch as they involved husbands who acted in good faith to return their income to prior levels and who made diligent searches for comparable employment.

Based on the foregoing, it is clear that the Former Husband has made only a token effort toward returning his income to its previous level and has not made a good faith attempt to find comparable employment. Instead, he has made poor business choices that have further negatively impacted his earning ability. In Vazquez v. Vazquez, 922 So.2d 368 (Fla. 4th DCA 2006), the appellate court

Since the record supports the trial court’s finding that the Former Husband was voluntarily underemployed, we find no abuse of discretion in the court’s implied imputation to the Husband of sufficient income to satisfy his alimony obligation. See Vazquez, 922 So.2d at 373; Pribble v. Pribble, 800 So.2d 743, 746 (Fla. 5th DCA 2001). The generous financial benefits the Former Husband bestowed on his girlfriend undercut his claim that he could not meet his alimony obligation.

Affirmed.

SHAHOOD, GROSS and MAY, JJ., concur.


author: POLEN, J. GROSS, J.,

text:
    Devon A. MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4115.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Devon A. Marshall, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Devon A. Marshall (the “Defendant”) appeals the trial court’s denial of his motion for post-conviction relief. We reverse and remand for further proceedings.

A jury convicted the Defendant of aggravated battery and battery on his girlfriend. He appealed his conviction and sentence, but this court affirmed. Marshall v. State, 916 So.2d 806 (Fla. 4th DCA 2005). The Defendant then filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 claiming that he was denied effective assistance of trial counsel based upon counsel’s alleged failure to interview and depose crime-scene witnesses. The trial court denied the motion following an evidentiary hearing without making any factual findings or legal conclusions.

The rule governing motions for post-conviction relief provides that, “If an evi-dentiary hearing is required, the court shall grant a prompt hearing thereon and shall cause notice thereof to be served on the state attorney, determine the issues, and make findings of fact and conclusions of law with respect thereto.” Fla.R.Crim. P. 3.850(d) (emphasis added).

It is impossible for this court to determine on appeal whether the trial court’s ruling is based on competent substantial evidence without the benefit of the court’s findings. We therefore remand this cause to the trial court for its entry of an order containing factual findings and legal conclusions as required by Rule 3.850(d). See Dillbeck v. State, 882 So.2d 969 (Fla.2004).

Reversed and Remanded with Instructions.

STONE, J., concurs.

GROSS, J., dissents with opinion.

GROSS, J.,

dissenting.

Appellant’s 3.850 motion was based upon his lawyer’s purported failure to interview and depose crime scene witnesses. At the evidentiary hearing, appellant testified that he gave trial counsel the names of witnesses favorable to his defense. Trial counsel testified that appellant did not give her any such names. The trial court denied appellant’s motion for post conviction relief. From this I conclude that the trial court believed the lawyer and disbelieved appellant. I do not believe that reversal and remand is necessary.


text:
    Charles H. McINTOSH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-3667.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Charles H. McIntosh, Atlanta, Georgia, pro se.
    No response required for respondent.
   PER CURIAM.

Petitioner filed a notice of appeal from a trial court order that denied his motion for speedy disposition of his Florida violation of probation (VOP) affidavit. The trial court’s order is non-final and non-appeal-able.

We have redesignated this case as a petition for writ of prohibition and treated petitioner’s initial brief as his petition. Weyburn v. State, 763 So.2d 1203 (Fla. 1st DCA 2000); Subervi v. Miller, 555 So.2d 452 (Fla. 5th DCA 1990).

Petitioner is currently serving a federal prison sentence, and he has not alleged that a VOP warrant has been served on him. The trial court properly denied petitioner’s motion because the Interstate Agreement on Detainers (IAD) does not apply to VOP proceedings. Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985).

We deny the petition for writ of prohibition. See Saunders v. State, 837 So.2d 433 (Fla. 2d DCA 2002) (denying prohibition and noting that no mechanism exists where a defendant can force a court to timely dispose of a VOP, and the failure to do so does not deprive the court of jurisdiction); see also Burgess v. State, 913 So.2d 1253 (Fla. 2d DCA 2005) (affirming the trial court’s dismissal of the motion to compel speedy disposition of VOP detain-er).

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


author: SHAHOOD, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. In the Interest of J.F., Appellee.
    No. 4D06-4896.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellant.
    Roger Ally of Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellee.
   SHAHOOD, J.

This is an appeal by the Department of Children and Families (DCF) from a final order on permanency review terminating protective supervision. We reverse and remand.

The issue involved is whether the trial court erred in denying the goal of adoption, accepting a goal of permanent guardianship, placing the child with a non-relative, and terminating protective supervision.

Based on the record before us we find that the trial court failed to follow the statutory procedural requirements necessary before issuing a judicial review order determining the child’s status. We therefore reverse and remand for the trial court to provide findings as to why the permanent placement is established without adoption of the child to follow pursuant to section 39.621(6), Florida Statutes (2006); amend the judicial review order to be in compliance with section 39.6221(2), Florida Statutes (2006); amend the judicial review order to reflect the amendment to the case plan; and withdraw the permanent placement of the child with the non-relative until the child has been in the placement for not less than the preceding six months pursuant to section 39.6221(l)(a), Florida Statutes (2006).

Reversed and Remanded.

GROSS and MAY, JJ., concur.


text:
    Johnny SAFFOLD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1907.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Rehearing Denied Aug. 8, 2007.

      Johnnie Saffold, Fort Myers, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant challenges the trial court’s order denying his motion to correct an illegal sentence claiming that the written sentence did not comport with the oral pronouncement. Although the trial court denied the motion to correct an illegal sentence based upon Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998), our supreme court has disapproved our resolution of the issue in Williams v. State, 957 So.2d 600 (Fla.2007). However, on the merits of the motion we affirm. Appellant contends that the trial court’s written sentencing judgment sentencing appellant as a habitual offender varies from its oral pronouncement. We disagree, as at sentencing the trial court said, “I am going to impose the habitual offender statute, finding that the State qualified you as an habitual offender.” The mere fact that the judge imposed the habitual offender status before declaring the length of the sentence does not amount to a failure to impose habitual offender sentencing. See Scanes v. State, 876 So.2d 1238 (Fla. 4th DCA 2004) (“magic words” are not necessary to establish what the sentencing court intended when it declared the intent to impose a habitual offender sentence); see also Zink v. State, 943 So.2d 895 (Fla. 4th DCA 2006).

Affirmed.

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


text:
    Nelson ROANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1902.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Nelson Roane, South Bay, pro se.

      No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice for appellant to file a petition for belated appeal.

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. C.R., Appellee.
    No. 2D06-1158.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee.
   KELLY, Judge.

The State appeals from the trial court’s disposition order that places C.R. on probation. The State argues that the trial court erred in failing to impose fifteen days of detention as required by section 790.22(9), Florida Statutes (2005). We agree and reverse.

C.R., a juvenile, was charged by delinquency petition with possession of a loaded firearm by a minor and discharging a firearm in public. C.R. entered a guilty plea to the charges. At the disposition hearing, the State argued that the trial court was required by statute to impose a fifteen-day term of detention on C.R. for discharging a firearm. The defense pointed out that the trial court had not imposed detention on C.R.’s codefendants for the same offenses and argued that C.R. should receive the same disposition as his codefendants. The trial court agreed that C.R. should be sentenced consistently with his codefen-dants and declined to impose detention.

Although we sympathize with the trial court’s attempt to treat all the codefen-dants fairly and consistently, we agree with the State that the trial court had no discretion to refuse to impose the mandatory fifteen-day detention on C.R. See State v. R.L.S., 712 So.2d 1220 (Fla. 2d DCA 1998); State v. R.C.S., 837 So.2d 517 (Fla. 3d DCA 2003). We likewise have no choice but to follow the statute.

Accordingly, we reverse the disposition order and remand with directions that the trial court impose the term of detention required by section 790.22(9) in addition to any other punishment already imposed.

Reversed and remanded.

FULMER, C.J., and ALTENBERND, J., Concur.

      . Section 790.22(9) states in pertinent part:
      (9) Notwithstanding s. 985.214, if the minor is found to have committed an offense that involves the use or possession of a firearm, as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order:
      (a) For a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility.

      . It appears from the record that the State did not appeal the sentences imposed in the codefendants’ cases.


author: CASANUEVA, Judge.

text:
    Mario BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1640.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Mario Baker appeals his conviction for felony battery raising three issues. First, Mr. Baker argues that the trial court should have granted his motion for judgment of acquittal because neither the evidence presented nor the allowable inferences from that evidence were sufficient to sustain a conviction for battery. Second, Mr. Baker claims, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that his Sixth Amendment confrontation right was violated when the trial court allowed into evidence an audio tape recording of the 911 call the victim made. Finally, Mr. Baker contends the trial court erred by denying his motion for a new trial based on newly discovered evidence. We decline to address the second issue raised because we agree with Mr. Baker that even with the disputed 911 tape in evidence, the State failed to establish a prima facie case of battery. Because the trial court erred in denying Mr. Baker’s motion for judgment of acquittal, Mr. Baker’s third issue is moot.

The main evidence the State presented at trial was the audio recording of a call made to a 911 operator by the alleged victim of the crime, Mr. Baker’s girlfriend. She told the operator: “My boyfriend just, um, bit me and took my phone and stuff,” but she declined the ne.ed for any medical attention. The 911 operator dispatched a police officer to the victim’s home, who observed and photographed a small bite mark on the victim’s forearm. At the trial, the police officer authenticated the photographs of the bite mark but did not testify as to any conversation he had with the victim, although he did say that when he arrived the victim was crying. The victim herself did not appear to testify at trial. Therefore, there was no testimony surrounding the circumstances leading up to the biting. The State’s proof of the various elements of battery thus consisted of the victim’s above quoted remarks to the 911 operator, the officer’s testimony about what he observed on the victim’s arm and her demeanor, and the photograph of the bite mark. The trial court denied the motion for judgment of acquittal and submitted the case to the jury, who found Mr. Baker guilty of battery. Because Mr. Baker had at least one prior conviction for battery, he was adjudicated guilty of felony battery.

“The rule is well established that the prosecution, in order to present a pri-ma facie case, is required to prove each and every element of the offense charged beyond a reasonable doubt, and when the prosecution fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted.” Baugh v. State, 961 So.2d 198, 203-04, 2007 WL 1215130 (Fla. April 26, 2007) (quoting Williams v. State, 560 So.2d 1304, 1306 (Fla. 1st DCA 1990)). We review de novo the denial of a motion for acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

The crime of battery is defined in section 784.03(1)(a), Florida Statutes (2005), and occurs when a person: “(1) actually and intentionally touches or strikes another person against the will of the other; or (2) intentionally causes bodily harm to another person.” For the State to overcome a defense motion for judgment of acquittal, the State had to present prima facie evidence that Mr. Baker intentionally bit the victim and this biting was against her will, or that Mr. Baker intended to harm her. See Beard v. State, 842 So.2d 174 (Fla. 2d DCA 2003); Byrd v. State, 789 So.2d 1169 (Fla. 3d DCA 2001); Nash v. State, 766 So.2d 310 (Fla. 4th DCA 2000). Here, the State presented prima facie evidence only that Mr. Baker was the perpetrator. The State failed to present any evidence that the alleged touching — the bite — was intentional and against the victim’s will. The State’s case was deficient primarily because the victim did not testify; the evidence from the victim was limited to the 911 call. Her remarks to the 911 operator fall short of providing the necessary proof that the biting was not consensual and that it was intentional. Cf. Rosen v. State, 940 So.2d 1155 (Fla. 5th DCA 2006) (holding that the trial court correctly denied a motion for judgment of acquittal for battery where the victims testified that the defendant touched them against their will). Taken altogether, the evidence in the 911 recording, the officer’s testimony, and the photograph of the bite mark fail to fulfill all the elements of battery.

Because the State failed to present a prima facie case of battery, the trial court should have granted Mr. Baker’s motion for judgment of acquittal. Accordingly, we reverse Mr. Baker’s conviction and vacate his sentence for battery.

Conviction reversed, sentence vacated, and case remanded with instructions to discharge Mr. Baker.

WHATLEY J., and FOSTER, ROBERT A. JR., Associate Judge, concur.

      . § 784.03, Fla. Stat. (2005).


author: GREEN, J.

text:
    V.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1819.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.

      Bennett H. Brummer, Public Defender, and Howard K. Blumherg, Assistant Public Defender, and Emily Lora Mallor and Christopher J. Smith, Certified Legal Interns, for appellant.
    Bill McCollum, Attorney General and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   GREEN, J.

This is an appeal from an order withholding an adjudication of delinquency for trespass and placing the juvenile appellant, V.B., on probation for one year with early termination. We reverse based upon our conclusion that the State failed to prove the crime of trespass as charged.

V.B., a juvenile, was arrested on April 12, 2006 for trespass on property other than a structure or conveyance. On that date, V.B. was found in Amelia Earhart Park after closing hours. Specifically, the petition for delinquency charged that:

THIS CHILD, ON OR ABOUT APRIL 12, 2006, IN MIAMI-DADE COUNTY, FLORIDA, DID UNLAWFULLY AND WILLFULLY, WITHOUT BEING AUTHORIZED, LICENSED OR INVITED ENTER UPON REMAIN [SIC] IN THE PROPERTY OF [MIAMI DADE PARKS AND RECREATION, D/B/A AMELIA EARHART PARK AND/OR ROBERT COUNCIL] LOCATED IN THE VICINITY OF 11900 N.W. 42 AVENUE, HAVING RECEIVED NOTICE AGAINST ENTERING OR REMAINING GIVEN BY POSTING, FENCING, OR CULTIVATION AS DESCRIBED IN S. 810.011 FLA. STAT., IN VIOLATION OF S. 810.09(2)(A) AND 777.011 FLORIDA STATUTES.

At the adjudicatory hearing, the State presented evidence establishing that at approximately 8:45 a.m. on the date in question, V.B. and two other juveniles were found at Amelia Earhart Park by a park security guard who was patrolling the park. The park is surrounded by three different kinds of fencing. To enter the park by car, one must enter through a gate designed for vehicular traffic. This gate is closed each evening at sunset. Pedestrians can enter the park through an open passageway that is not gated and is never closed. There was testimony that “No Trespassing” signs were posted throughout the park, but no evidence as to where or how many. After the State rested, counsel for V.B. moved for a judgment of acquittal, on grounds that the State failed to establish that V.B. had been put on notice as required by the statute. This motion was denied.

V.B. testified that he entered the park through the open pedestrian passageway. He also stated that he did not see a “No Trespassing” sign upon entering the park. At the close of all of the evidence the trial court denied V.B.’s renewed motion for judgment of acquittal and found V.B. guilty of trespass. Adjudication was withheld and V.B. was placed on probation. This appeal followed.

It is well-settled that when an offense can be committed in various ways the evidence presented at trial must establish that the offense was committed in the manner alleged in the charging document. Lewis v. State, 53 So.2d 707, 708 (Fla.1951)(“No principle of criminal law is better settled than that the State must prove the allegations set up in the information or the indictment.”). See also Crain v. State, 894 So.2d 59, 69 (Fla.2004); Long v. State, 92 So.2d 259, 260 (Fla.1957); State v. Presley, 824 So.2d 906, 907 (Fla. 3d DCA 2002). Here, the State charged V.B. with trespass after “having received notice against entering or remaining given by posting, fencing, or cultivation,” as described in Florida Statute 810.011 (2006).

Section 810.011(5)(a) specifically describes the requirements for providing notice by posting with regards to trespass:

Land upon which signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words “no trespassing” and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line.

Strict compliance with these requirements is necessary to constitute proper constructive notice via posting. See Lewis v. State, 932 So.2d 357, 358 (Fla. 2d DCA 2006). Here, the State failed to prove strict compliance with the statutory requisites. Indeed, the only evidence presented proved that there were signs posted throughout the park. There was no evidence regarding the number of signs, the location of the signs, and/or the content and lettering size of the signs. Accordingly, the State failed to prove constructive notice via posting.

Similarly, the State failed to prove that V.B. had constructive notice against trespassing by way of “fencing.” Fenced land is defined as “land which has been enclosed by a fence of substantial construction, whether with rails, logs, post and railing, iron, steel, barbed wire, other wire, or other material, which stands at least 3 feet in height.” § 810.011(7), Fla. Stat. (2006). In this case, the evidence showed that the park was not “enclosed” by fencing in that there is an open pedestrian passageway that has no gate or closing apparatus.

Because the park was not adequately enclosed so as to meet the statutory requirement of “fenced land,” and because there was no evidence that the park had the requisite “No Trespass” notices, the State failed to meet its burden of establishing that V.B. had constructive notice that the park was closed. Therefore, the motion for acquittal should have been granted.

Accordingly, we reverse.

      . Amelia Earhart Park is a 450 acre public park, located in Miami-Dade County, that consists of picnic pavilions, boat rentals, special event areas, and a sports complex.

      . Cultivation is not at issue in this case.


author: HAZOURI, J.

text:
    Michael E. SCHRIBER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2183.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Rehearing Denied Aug. 20, 2007.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Michael E. Schriber appeals the trial court’s summary denial of his motion to withdraw his plea after sentencing. The issue presented in this appeal is whether the trial court erred in summarily denying Schriber’s motion to withdraw the plea after sentencing without appointing conflict-free counsel after Schriber alleged that his prior counsel led him to enter a guilty plea involuntarily.

On July 6, 2004, Schriber pleaded guilty to grand theft and was sentenced to five years in state prison. On July 12, 2004, Schriber filed a handwritten pro se motion to withdraw his plea, alleging that- his trial counsel provided misadvice and ineffective assistance in that his counsel failed to bring to the trial court’s attention the fact that Schriber suffered from a mental disorder that required specialized treatment. The trial court treated Schriber’s motion to withdraw his plea as a motion for post-conviction relief and ordered the state to respond. The state responded by urging the trial court to deny the motion because it was unsworn. The trial court subsequently denied Schriber’s motion to withdraw his plea based on the fact that his motion was unsworn. Thereafter, Schri-ber filed a pro se notice of appeal to this court.

This court reversed the trial court’s order denying Schriber’s motion and remanded the case to the trial court to consider Schriber’s motion as a motion to withdraw his plea in accordance with Florida Rule of Criminal Procedure 3.170(Z) rather than a motion for post-conviction relief. See Schriber v. State, 924 So.2d 904 (Fla. 4th DCA 2006). Thereafter, upon remand, the trial court, without appointing conflict-free counsel, issued a summary order denying Schriber’s motion to withdraw his plea which is now the subject of this appeal.

“The standard of review of a trial court’s denial of a motion to withdraw plea is abuse of discretion.” Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006). “Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations.” Id.

Schriber argues that because a motion to withdraw is a critical stage of the proceedings, he was entitled to counsel to assist him in drafting his motion to withdraw. We agree.

In Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999), this court held:

A defendant’s right to effective assistance of counsel in the appeal of the issues which were presented in, and preserved by, the filing of a rule 3.170(0 motion would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea. To hold to the contrary would be to carve out of a defendant’s right to counsel that thirty-day window between the rendition of sentence and the taking of an appeal — the very period during which the defendant may raise issues under rule 3.170(Z) which would be cognizable during the direct appeal. Thus, we conclude that a motion filed pursuant to rule 3.170(¿) does not amount to a collateral attack upon the conviction, but rather is a critical stage in the direct criminal proceeding against the defendant at which the accused must be entitled to effective assistance of counsel.

Id. at 73 (footnote omitted).

Rule 3.170(0 provides for a motion to withdraw the plea within thirty days after sentencing, but the motion may only be made upon grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a-e. The only ground applicable to the instant case is if appellant’s plea was involuntary. Fla. R.App. P. 9.140(b)(2)(A)(ii)c.

In addition to this court’s decision in Padgett, other district courts have specifically held that a defendant is entitled to court-appointed counsel to advise and assist him in preparing his rule 3.170(Z) motion to withdraw his plea. See Mosley v. State, 932 So.2d 1239 (Fla. 1st DCA 2006); Banks v. State, 927 So.2d 169 (Fla. 1st DCA 2006); Norman v. State, 897 So.2d 553 (Fla. 1st DCA 2005); Smith v. State, 849 So.2d 485 (Fla. 2d DCA 2003); Meeks v. State, 841 So.2d 648 (Fla. 2d DCA 2003); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002).

The state argues that the trial court did not need to appoint conflict-free counsel because the motion was insufficient or conclusively refuted by the record. For support of this proposition the state cites to this court’s decision in Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006). However, Williams is distinguishable from the instant case in that Williams’s original attorney drew up and filed the motion to withdraw the plea which was found to be insufficient.

As we noted in Padgett, the thirty-day window provided in rule 3.170(Z) is a critical stage of the criminal proceedings and it would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea. Providing a defendant with conflict-free counsel however does not necessarily require the trial court to conduct an evidentiary hearing. See Kelly v. State, 925 So.2d 383 (Fla. 4th DCA 2006) (upon the appointment of conflict-free counsel and the filing of the motion to withdraw, the trial court should then proceed to determine whether the state should respond and thereafter determine whether to summarily deny the motion to withdraw or hold an evidentiary hearing).

We therefore reverse and remand and direct the trial court to appoint conflict-free counsel to assist Schriber in drafting a motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170(Z) and direct the trial court to proceed to determine whether the state should respond and thereafter determine whether to summarily deny the motion to withdraw or to hold an evidentiary hearing.

Reversed and Remanded with Directions.

WARNER and KLEIN, JJ., concur.

      . A post-conviction relief motion pursuant to Florida Rule of Criminal Procedure 3.850 must be made under oath.

      FN3 This court has already found that a motion to withdraw a plea filed prior to sentencing under rule 3.170(f) to be a critical stage in the proceeding against the defendant at which effective assistance of counsel must be provided. See Roberts v. State, 670 So.2d 1042 (Fla. 4th DCA 1996).


author: KLEIN, J.

text:
    Troy McJIMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2336.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of attempted first degree premeditated murder with a deadly weapon. He argues that the trial court committed fundamental error when it gave an incorrect self defense jury instruction on the justifiable use of deadly force and that there was no evidence of premeditation. We reverse because of the jury instruction.

The victim, described by appellant after his arrest as a “scumbag,” was living with appellant’s sister in her apartment. Appellant had been staying at the apartment for a few days while his sister and the victim were out of town and, according to appellant, they returned to the apartment drunk. According to appellant, after some disagreement, the victim attacked appellant and they wound up in a bear hug, punching and pulling each other’s hair. The altercation stopped temporarily, but the victim soon resumed attacking appellant in the foyer at the front door, banging appellant’s head on the tile floor. Appellant admitted that he then went into the living area, grabbed his knife from a table and stabbed the victim in self-defense.

The victim corroborated that appellant had been staying at the apartment with the permission of the victim and appellant’s sister, and that when they returned they had been drinking. The victim told the appellant he could not stay there any longer, and the appellant then went from outside the front of the apartment around to the back patio and started drinking beer with a boom box playing loudly. The victim was concerned that the noise would cause appellant’s sister, who was renting the apartment, to be evicted. He again told appellant to leave and closed the sliding door. The next thing the victim knew was that he felt stinging in the back of his shoulder, and when the victim turned around appellant stabbed him several times in the abdomen.

Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act about to be committed and the probable result of that act.
Circumstantial evidence of premeditation can include the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.

Pearce v. State, 880 So.2d 561, 572 (Fla.2004).

Appellant cites Coolen v. State, 696 So.2d 738 (Fla.1997), in which the Florida Supreme Court, in a four to three decision, concluded that a killing resulting from a stabbing was not premeditated. In that case, however, the victim and his wife had only met the defendant and his girlfriend a few hours earlier while drinking in a pub. They continued to drink at the victim’s home after leaving the pub and, after an argument over a can of beer, the defendant suddenly and unexpectedly pushed the victim against the apartment and stabbed him multiple times. The majority opinion characterized the incident as “an ongoing pattern of hostility between two intoxicated men” which was sudden and “without warning or provocation.” Id. at 741, 742.

Although we acknowledge some similarity in the factual situations, there was sufficient evidence of premeditation in this case. In a light most favorable to the state, the evidence reflected that the victim was first stabbed from behind and then, as he turned around to protect himself, was stabbed several times in the abdomen. Although appellant testified that the victim had bashed his head against the floor and appellant was only attempting to defend himself, the alleged bashing occurred in the foyer by the front door. Rather than avail himself of the opportunity to leave, the appellant went back into the living area in order to get his knife and then stabbed the victim from behind. In addition, unlike in Coolen, appellant had known the victim for some time and referred to him as a scumbag.

We do agree with appellant, however, that fundamental error occurred when the court, after instructing the jury on self-defense, went on to state:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. Troy A. McJimsey was attempting to commit, committing, or escaping from the commission of armed attempted murder in the first degree or attempted murder in the first degree.
Armed attempted murder in the second degree, or attempted second degree murder, aggravated battery, aggravated assault, battery or assault.

We have previously held this instruction, based on section 776.041(1), Florida Statutes (2004), to be fundamental error in Estevez v. State, 901 So.2d 989, 991 (Fla. 4th DCA 2005), under the same circumstances:

While Estevez was alleged to have committed only one act, aggravated battery, the trial court gave an instruction that “is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self defense and a separate forcible felony.” Id.; see Marshall v. State, 604 So.2d 799 (Fla.1992) (holding that section 776.041 jury instruction was proper on claim of self defense to felony murder charge where underlying felonies were burglary and aggravated battery). Giving such instruction under these circumstances forced the jurors to decide his guilt or innocence in a manner that was patently circular, confusing and had the overall effect of negating the defendant’s sole defense.

In this case, where appellant was charged solely with attempted first degree murder and no other forcible felony, the instruction was erroneous. Our sister courts have also concluded that, in circumstances which are not distinguishable from this case, it is fundamental error to give this instruction. Williams v. State, 937 So.2d 771 (Fla. 1st DCA 2006); Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006); Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006). See also Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002) (holding the same instruction, which had been objected to, error requiring a new trial).

Reversed for a new trial

WARNER and HAZOURI, JJ., concur.


text:
    Jon Barri BROTHERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1058.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Bernard F. Daley, Jr., Tallahassee, and Stephen P. Tourtelot, St. Petersburg, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Jon Barri Brothers appeals from an order on his Rule 3.800(a) motion which without explication granted him only an “additional” five days, out of the 1,402 or alternatively the 1,164 additional days that he sought, in credit for time served while in jail. While a review of the voluminous motions and responses provided by Brothers would permit us to cobble together some of the credits accorded to Brothers to date, on the record provided, we cannot determine whether the additional five days granted resolves his claim in full.

On appeal, this court must reverse unless the records attached to the lower court’s order conclusively demonstrate that the defendant is not entitled to the requested relief. See Bean v. State, 949 So.2d 1207, 1208 (Fla. 4th DCA 2007) (“In denying a legally sufficient 3.800(a) motion, the trial court’s failure to attach portions of the record refuting the defendant’s claim is reversible error, and the state cannot cure this error by providing the records to this court on appeal.”); Langdon v. State, 947 So.2d 460, 460-61 (Fla. 3d DCA 2007) (reversing the summary denial of the defendant’s rule 3.800(a) motion because the trial court “did not attach to its order portions of the transcript conclusively demonstrating that defendant waived entitled to credit for time served in prison”); Perez-Boza v. State, 943 So.2d 291, 291 (Fla. 3d DCA 2006) (“On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).”). In this case, nothing is attached to the order to guide us in our review. We therefore reverse the order on appeal and remand for entry of a new order supported by record attachments.

Reversed and remanded with instructions.

      . Brothers claims in his motion to entitlement to 883 days credit for time served during his initial incarceration in this case from March 26, 1993 through August 29, 1995. He also claims entitlement to an additional 519 days (from September 19, 1997 when he was jailed in. West Palm Beach on charges in that county through February 19, 1999 when he was sentenced for violating his probation in this case) or alternatively to an additional 281 days (from May 15, 1998 when he started serving his sentence on the West Palm Beach charges through February 19, 1999 when he was sentenced for violating his probation in this case).
      It appears that the five additional days credited in the order currently on appeal, when added to 166 days accorded in a February 19, 1999 order, gives Brothers all of the credit that he is entitled to for that period when he was jailed following his arrest in West Palm Beach through sentencing for violation of probation in this case (that is, 171 days from September 1, 1998 when he finished serving his sentence in the West Palm Beach case through February 18, 1999 when he was sentenced for violating probation in this case).
      The order does not, however, grant Brothers any credit for the 883 days he claims to be due for the period of time that he was initially incarcerated on the Miami-Dade County charges, that is (and as evidenced by a CJIS print out), from March 26, 1993 through August 29, 1995. Although the parties’ submissions indicate that an order dated February 9, 2000 granted Brothers "two years credit for time served,” or 730 days, the current order neither attaches that order nor indicates whether that order covers the currently claimed 883 days. The order also does not attach anything from which we might discern whether Brothers is entitled to any additional credits (that is, to an additional 153 days representing the difference between the 883 days allegedly due and the 730 days allegedly accorded).


author: DAVIS, J.

text:
    STATE of Florida MARINE PATROL and the Florida Department of Financial Services, Appellants, v. Leon CLIFTON, Appellee.
    No. 1D06-4605.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Patrick J. Malone of Patrick J. Malone, P.A., Conyers, for Appellants.
    Marc E. Golden, West Palm Beach, and Bill McCabe, Longwood, for Appellee.
   DAVIS, J.

The employer/carrier (collectively, the “E/C”) seeks review of an order of the judge of compensation claims (“JCC”) in which the JCC determined that social security dependent benefits received by claimant’s children due to claimant’s disability could not be included within the E/C’s offset calculated pursuant to Escambia County Sheriff’s Department v. Grice, 692 So.2d 896 (Fla.1997). We agree with the E/C that the dependent benefits received by claimant’s children as a result of claimant’s disability constitute benefits from a collateral source under Grice and, thus, may be included in the Grice offset calculation. As such, we reverse the JCC’s order and remand.

Claimant, Leon Clifton, was injured in compensable accidents on May 31, 1994, and October 7, 1994, while working for the employer, the Florida Marine Patrol. As a result of his injury, claimant received permanent total disability (“PTD”) benefits from the E/C, in-line-of-duty disability retirement benefits as a member of the Florida Retirement System, and social security disability (“SSD”) benefits. Pursuant to Grice, the E/C offset claimant’s PTD benefits so that the amount he received from his employer and other collateral sources did not exceed his average weekly wage (“AWW”). As a result of the offset, the E/C paid claimant $222.54 per week in early 2004. Thereafter, the Social Security Administration began paying social security dependent benefits to claimant’s two minor children due to claimant’s disability. The dependent benefits are paid to claimant’s wife, the representative payee, for the children’s use and benefit. The E/C recalculated the offset to include the dependent benefits. This resulted in a smaller weekly benefit of $117.25. Claimant filed a petition for benefits seeking a determination as to the correct offset amount. The JCC agreed with the E/C that who the representative payee is for the dependent benefits is unimportant. Nevertheless, the JCC reasoned that because claimant’s children, not claimant, received the dependent benefits, they could not be included in the Grice offset calculation. This appeal followed.

Section 440.20(14), Florida Statutes (Supp.1994), provides:

When an employee is injured and the employer pays his full wages or any part thereof during the period of disability, or pays medical expenses for such employee, and the case is contested by the carrier or the carrier and employer and thereafter the carrier, either voluntarily or pursuant to an award, makes a payment of compensation or medical benefits, the employer shall be entitled to reimbursement to the extent of the compensation paid or awarded, plus medical benefits, if any, out of the first proceeds paid by the carrier in compliance with such voluntary payment or award, provided the employer furnishes satisfactory proof to the judge of compensation claims of such payment of compensation and medical benefits. Any payment by the employer over and above compensation paid or awarded and medical benefits, pursuant to subsection (13), shall be considered a gratuity.

The supreme court has interpreted the foregoing language to mean “ “when an injured employee receives the equivalent of his full wages from whatever employer source that should be the limit of compensation to which he is entitled.’ ” Grice, 692 So.2d at 898 (quoting Brown v. S.S. Kresge Co., 305 So.2d 191, 194 (Fla.1974)).

In Grice, the supreme court affirmatively answered the following certified question:

When an employee receives workers’ compensation, state disability retirement, and social security disability benefits, is the employer entitled to offset amounts paid to the employee for state disability retirement and social security disability against workers’ compensation benefits to the extent that the combined total of all benefits exceeds the employee’s average weekly wage?

692 So.2d at 897. The claimant in Grice received PTD benefits, SSD benefits, and state disability retirement benefits. Id. The claimant’s AWW was $583.88. Id. Before any offsets, the claimant received approximately $723 weekly. Id. The supreme court concluded that the E/C could offset the claimant’s workers’ compensation benefits to the extent that the total of his workers’ compensation, disability retirement, and SSD benefits exceeded his AWW. Id. at 898. After citing section 440.20(15), Florida Statutes (1985), which is virtually identical to the 1994 version of section 440.20(14), the supreme court held, “[A]n injured worker, except where expressly given such a right by contract, may not receive benefits from his employer and other collateral sources, which, when to-talled, exceed 100% of his average weekly wage.” Id.

There is no question that SSD benefits constitute benefits from a collateral source under Grice for purposes of the offset. The parties agree, however, that the issue of whether social security dependent benefits may be included in a Grice offset calculation is one of first impression. Because this issue presents a question of law, we review the JCC’s ruling de novo. See Socolow v. Flanigans Enters., 877 So.2d 742, 743 (Fla. 1st DCA 2004).

We have previously held that social security retirement benefits could not be included within a Grice offset calculation because they do not constitute a collateral source as contemplated by Grice. See Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141, 144 (Fla. 1st DCA 1999). We saw a critical distinction between indemnity benefits “owed as a result of one’s disabling condition” and social security retirement benefits. See id. at 143. Similarly, health insurance subsidies that assist state retirees, regardless of disability, in paying health insurance premiums may not be included within a Grice offset calculation because such a subsidy was not intended as a disability benefit. See State v. Herny, 781 So.2d 1067, 1068 (Fla.2001).

In contrast to the benefits addressed in Dixon and Herny, it is undisputed that claimant’s children receive the dependent benefits solely because of claimant’s disability. See 20 C.F.R. § 404.350 (1994) (providing that a person is entitled to “child’s benefits” through the Social Security Administration on the earnings of an insured individual who is entitled to old-age or disability benefits if the person applies, is under age eighteen in most circumstances and unmarried, and is the insured’s child and dependent on the insured). The benefits must be used for the use and benefit of the children, which in-eludes the cost incurred in obtaining food, shelter, clothing, medical care, and personal comfort items. See 20 C.F.R. § 404.2040(a)(1) (1994). This fact, contrary to the JCC’s determination, does not render the dependent benefits ineligible for inclusion in the Grice offset calculation. It instead supports the E/C’s argument that the benefits should be included in the calculation.

Although claimant might not directly benefit from the funds, in that they must be spent on his children, claimant certainly receives an indirect benefit as a result of the additional funds. Were it not for the dependent benefits, claimant would be forced to spend a greater portion of his own benefits for his children’s care. Given that the obvious purpose behind the dependent benefits is to assist the children because of their dependence on claimant, a disabled individual, there is no question that the benefits are owed as a result of claimant’s disabling condition. We, therefore, hold that the dependent benefits constitute benefits from a collateral source under Grice and may be included in the E/C’s Grice offset calculation.

Accordingly, we REVERSE the JCC’s order and REMAND for further proceedings.

WEBSTER and VAN NORTWICK, JJ„ concur.

       We note that the E/C did not take the separate social security offset provided for in section 440.15(10), Florida Statutes (Supp.1994). "As Grice makes clear, the social security offset under section 440.15(9)(a) [codified in 1994 as section 440.15(10)] is different and distinct from the offset allowed under section 440.20(15) [codified in 1994 as section 440.20(14)]." Jackson v. Hochadel Roofing Co., 794 So.2d 668, 669-70 (Fla. 1st DCA 2001). Because claimant’s monthly AWW is greater than eighty percent of his monthly average current earnings, the Grice offset, rather than the social security offset, is applicable. See Dixon v. GAB Bus. Servs., Inc., 767 So.2d 443, 445 (Fla.2000); Miami-Dade County v. Lovett, 888 So.2d 136, 138 (Fla. 1st DCA 2004).


author: PALMER, C.J.

text:
    Gregory D. CRITES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2311.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, C.J.

Gregory Crites (defendant) appeals his judgments and sentences which were entered by the trial court after he pled nolo contendere to several drug and firearm charges. Concluding that a double jeopardy violation occurred as a result of the imposition of convictions and sentences on both the possession of cannabis with intent to sell or deliver charge and the possession of more than 20 grams of cannabis charge, we strike the defendant’s judgment and sentence on the offense of possession of more than 20 grams of cannabis.

The State filed an information charging the defendant with committing the crimes of possession of a firearm by a convicted felon, possession of more than 20 grams of cannabis, possession of cannabis with intent to sell or deliver with a weapon, possession of ecstasy, and possession of drug paraphernalia.

After the trial court denied the defendant’s motion to suppress, the defendant entered pleas of nolo contendere to the charges. Defense counsel advised the court that the defendant would plead “to the bench.” During the plea colloquy, the defendant admitted that there had been no agreement between the parties as to the sentence which would be imposed in his case and he acknowledged that no agreement had been reached between the parties regarding the possibility of imposing a mandatory minimum sentence. The defendant then entered his plea.

Soon after entering his plea, the defendant filed a motion to vacate his plea. The motion alleged that the defendant’s plea was involuntarily entered because defense counsel had incorrectly advised the defendant that the trial court possessed discretion as to whether or not the court would impose a three-year mandatory minimum sentence on the firearm charge. The motion further alleged that the defendant would not have entered his plea had he known that the trial court was required to enter a three-year mandatory minimum sentence.

The trial court conducted a hearing on the defendant’s motion to vacate his plea. A month after the first hearing, the trial court conducted a second hearing on the defendant’s motion to vacate his plea. After receiving evidence from the defendant, the court reserved ruling.

The matter thereafter proceeded to a sentencing hearing. At the start of the hearing, the State advised the court that, in exchange for the defendant’s agreement to abandon his motion to withdraw his plea, the State would stipulate that mandatory minimum sentencing did not apply in this case. The trial court accepted the State’s stipulation and then entered judgments in accordance with the defendant’s previously-entered plea. The court also sentenced the defendant to a term of four years of imprisonment followed by four years of supervised probation on the firearm charge and, on the remaining counts, the court ordered concurrent terms of four years of imprisonment.

The defendant argues that, pursuant to the prohibition against double jeopardy, his convictions for possession of cannabis with the intent to sell (count III), and possession of more than 20 grams of cannabis (count II), cannot stand because they both arose out of a single incident of possession. We agree.

In Paccione v. State, 698 So.2d 252 (Fla.1997), our supreme court held that, under principles of double jeopardy, a defendant cannot be convicted on the charge of possession of contraband with the intent to sell and the charge of simple possession of the same contraband where the contraband in question was found in different locations during one arrest because the crime of simple possession contains no element not found within the crime of possession with intent to sell. Accord C.L.C. v. State, 868 So.2d 685 (Fla. 5th DCA 2004). The same principle applies to the charges at issue in this case.

In its answer brief, the State argues that the defendant’s double jeopardy-claim has been waived for purposes of appellate review because it was not raised in the trial court. We disagree because a claim by a defendant that his convictions that arose from the same criminal episode violated the prohibition against double jeopardy raises a question of fundamental error that can be raised for first time on direct appeal. See Scarola v. State, 889 So.2d 108 (Fla. 5th DCA 2004).

The State also argues that this claim of error should be rejected as merit-less because the defendant entered into a bargained-for plea deal and, as a result, he waived his right to raise a double jeopardy claim. Specifically, the State maintains that the defendant waived his right to raise any double jeopardy claim by accepting the State’s offer to forego a mandatory minimum sentence on the firearm charge. We again disagree. The record establishes that the parties’ joint stipulation regarding mandatory minimum sentencing was not entered during the defendant’s plea hearing, but rather, the stipulation was entered post-plea, as a way to dispose of the defendant’s motion to withdraw his plea.

The defendant’s judgment and sentence on the offense of simple possession in count II is stricken. Judgments and sentences are otherwise affirmed.

Judgment and Sentence on Count II is STRICKEN; otherwise AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

      . See U.S. Const. amend. V.; Fla. Const. art. l, § 9.

      . No party has appealed the issue of whether the State could properly so stipulate.

      . See § 893.13(1)(a)2, Fla. Stat. (2005).

      . See § 893.13(6)(a), Fla. Stat. (2005).


author: MONACO, J.

text:
    Sherman Leonard ATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3635.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Sherman Leonard Atkins, raises a number of issues in this appeal from his judgment and sentence, only one of which merits discussion. We conclude that the motion made by Mr. Atkins for judgment of acquittal with respect to the misdemeanor charge of resisting an officer without violence should have been granted in accordance with the holding of A.A.R. v. State, 926 So.2d 463 (Fla. 4th DCA 2006). See also Steele v. State, 537 So.2d 711 (Fla. 5th DCA 1989). Compare State v. Townsend, 585 So.2d 495 (Fla. 5th DCA 1991). We note that this matter was not raised before the trial court except by an unparticularized motion for judgment of acquittal. The error, however, was fundamental because it affirmatively appears from the case put on by the State that the charged violation of section 843.02, Florida Statutes (2006), was not committed by Mr. Atkins. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003); Troedel v. State, 462 So.2d 392, 399 (Fla.1984); Williams v. State, 516 So.2d 975 (Fla. 5th DCA 1987)(en banc), review denied, 525 So.2d 881 (Fla.1988). We, therefore, reverse the conviction of Mr. Atkins of resisting an officer without violence, and remand this case to the trial court to amend the judgment and sentence to assure that his record will not reflect a conviction of this offense.

Having reviewed the record, we conclude that there is no reason to require Mr. Atkins to be resentenced by the trial court as a result of our holding. Thus, we otherwise affirm the judgment with respect to all other charged crimes of which Mr. Atkins was convicted, as well as the sentence awarded by the trial court.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON, J. and SMITH T., Associate Judge, concur.

      . See § 843.02, Fla. Stat. (2006).


text:
    Jose CHAVEZ, Appellant, v. BONNIE TILE CORPORATION and Summit Holdings, Appellees.
    No. 1D07-2107.
    District Court of Appeal of Florida, First District.
    July 6, 2007.

      Marcos R. Gonzalez of Gonzalez, Porch-er, Albear & Garcia P.A., Lake Worth, for Appellant.
    H. George Kagan and Amy B. Siegel of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

The claimant has taken an appeal from an order of the Judge of Compensation Claims which granted a motion to enforce a settlement. We dismiss, the appeal as moot.

The JCC granted the employer/servicing agent’s motion to enforce a settlement and directed that washout papers be filed with the JCC within ten days of the date of the order. Claimant then executed the washout settlement papers which the JCC approved. The e/sa then mailed checks to claimant’s counsel in the full amount provided by the settlement. After the settlement checks were negotiated, claimant filed the notice of appeal.

E/SA filed a suggestion of mootness asserting that claimant should be es-topped to challenge the JCC’s order enforcing the settlement with which the parties have fully complied. Claimant has objected stating that enforcement of the settlement agreement severed his right to obtain coverage for future medical treatment. Claimant states that the case should not be dismissed simply because he complied with the JCC’s order and that if he had failed to comply with the order, he would have found himself in contempt of court.

“[WJhen a party recovers a judgment and accepts the benefit thereof, he is, on appeal, estopped to seek reversal of that judgment.” Dance v. Tatum, 629 So.2d 127, 129 (Fla.1993). We are unpersuaded by claimant’s argument that the acceptance of benefits doctrine does not apply because the JCC ordered the parties to file washout papers. Claimant could have filed a motion to stay compliance with the order pending appeal, signed the washout papers as directed and requested that they not be enforced pending this appeal or requested that the JCC hold the settlement checks pending the outcome of this appeal. Because claimant failed to pursue any alternative remedy and instead accepted the proceeds of the settlement, he cannot now appeal. See Main Street Indus., Inc. v. K-Mart Corp., 710 So.2d 771 (Fla. 4th DCA 1998). This appeal is hereby DISMISSED as moot.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


author: VILLANTI, Judge.

text:
    Richard Charles SHAFER, Doc # 114075, Petitioner, v. STATE of Florida, Respondent.
    No. 2D07-1379.
    District Court of Appeal of Florida, Second District.
    July 6, 2007.

      Richard Charles Shafer, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Respondent.
   VILLANTI, Judge.

Richard Charles Shafer petitions for certiorari review of an order dismissing his motion for mitigation of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We have jurisdiction to review the order. See Cunniff v. State, 950 So.2d 1255, 1256 (Fla. 2d DCA 2007); Byrd v. State, 920 So.2d 825, 826 (Fla. 2d DCA 2006). The State rightfully concedes that this case warrants certiorari relief. We agree and grant Mr. Shafer’s petition.

Mr. Shafer was sentenced on December 20, 2006. He filed his rule 3.800(c) motion on February 9, 2007. Under rule 3.800(c), the trial court had sixty days, or until February 20, 2007, to modify Mr. Shafer’s sentence. Thus, Mr. Shafer filed his motion eleven days before the expiration of the sixty-day modification period.

On February 27, 2007, the trial court, relying on State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004), dismissed Mr. Shafer’s motion, concluding that it “lost jurisdiction to rule on the motion on February 18, 2007.” The court explained, “As this court no longer has jurisdiction to rule on it, the instant motion must be dismissed.” Although the trial court did not have the benefit of our opinion at the time, we have since ruled otherwise. See Cunniff, 950 So.2d at 1257. In Cunniff, we granted Mr. Cunniffs petition for writ of certiorari, holding that “the trial court should have either considered the motion on its merits or extended the time for considering the motion” when Mr. Cunniffs motion for mitigation of sentence was filed nine days before the expiration of the sixty-day modification period. Id. Because Mr. Shafer’s motion was filed eleven days before the expiration, Cunniff controls, and the trial court should have considered the merits of Mr. Shafer’s motion or extended the time to do so.

Because the trial court departed from the essential requirements of law, we grant Mr. Shafer’s petition, quash the trial court’s order, and remand for the trial court to consider the merits of the motion.

Petition for writ of certiorari is granted.

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

      . In its order dismissing Mr. Shafer's motion, the trial court found that it lost jurisdiction to decide the motion on February 18, 2007. Because rule 3.800(c) permits only sixty days to modify a sentence, we presume that Mr. Shafer was sentenced on December 20, 2006— sixty days before February 18, 2007. This is also consistent with Mr. Shafer's assertion in his rule 3.800(c) motion that he was sentenced on December 20, 2006.

      . February 18, 2007, was a Sunday, and February 19, 2007, was a legal holiday (Washington's Birthday); therefore, the sixty-day expiration was extended to February 20, 2007. See Fla. R.Crim. P. 3.040.


text:
    Henry SAWYER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2744.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. White, 891 So.2d 502 (Fla.2004); Westerheide v. State, 831 So.2d 93 (Fla.2002); Roeling v. State, 880 So.2d 1234 (Fla. 1st DCA 2004).

BARFIELD, KAHN, and PADOVANO, JJ., concur.


text:
    Anthony J. BEDGOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2579.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    Anthony J. Bedgood, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


text:
    Jeremiah JOHNSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-2848.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    Jeremiah Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


text:
    SACRED HEART HEALTH SYSTEM, INC., Petitioner, v. Stephen Adam AMERSON and Laura R. Amerson, as parents and next friends of Dakota A. Amerson, a minor and Stephen Adam Amerson and Laura A. Amerson, Individually, Respondents.
    No. 1D07-2873.
    District Court of Appeal of Florida, First District.
    July 9, 2007.
    John B. Fricke, Jr. of Wilson, Harrell, Farrington & Ford, P.A., Pensacola, for Petitioner.
    William Baker, Jr. of Baker and Baker, Pensacola; Scott R. McMillen of McMillen Law Firm, Orlando, for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. See Notami Hosp. of Florida, Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006).

BARFIELD, KAHN, and ROBERTS, JJ., concur.


author: STRINGER, Judge.

text:
    Rudolph WINBORNE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1092.
    District Court of Appeal of Florida, Second District.
    July 11, 2007.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Rudolph Winborne, Jr., seeks review of his judgments and sentences in two separate cases for aggravated battery, felonious possession of a firearm, and two counts of tampering with a witness. Counsel filed briefs pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla.1991). We affirm both of Winborne’s convictions and affirm his sentence in circuit court case number 04-17086 but reverse and remand for reconsideration of the costs imposed in circuit court case number 04-10955.

In case number 04-10955, the trial court orally pronounced court costs of $650 as a judgment lien and investigative costs of $19.75 as a judgment lien. Winborne waived formal pronouncement of each of the court costs and “formal offer of proof on the judgment lien for investigative] costs.” The judgment and sentence imposes costs of $669.75 on count one and costs of $650 on count two “concurrent with” count one. These costs are imposed as judgment liens. However, the court also rendered a separate judgment for fine and costs imposing total costs of $709.75 and requiring that the costs be recorded as a judgment.

Winborne filed a motion to correct sentencing error asserting that the sentences in case number 04-10955 were illegal because the costs were ordered per count instead of per case and the costs imposed in the judgment for fine and costs did not comport with the oral pronouncement. That motion was not ruled upon within sixty days and was thus deemed denied. Fla. R.Crim. P. 3.800(b)(2)B. The discrepancies in the judgment for fine and costs, the judgment and sentence, and the court’s oral pronouncement require reversal.

It does not appear that the court intended to impose costs per count in the judgment and sentence because it ordered the costs on count two “concurrent with” count one. However, the judgment and sentence could be construed to impose costs on both counts, which is improper. See Johnson v. State, 942 So.2d 415, 415 (Fla. 2d DCA 2006). Even if the judgment and sentence did not impose double costs, it is at odds with the separate judgment for fine and costs, which appears to be at odds with the court’s oral pronouncement. Accordingly, we reverse Winborne’s sentence in ease number 04-10955 and remand for reimpo-sition of costs as orally pronounced and entry of an amended judgment and sentence.

Affirmed in part; reversed in part; and remanded.

CASANUEVA and LaROSE, JJ., Concur.


text:
    PUBLIX SUPERMARKETS, INC., Petitioner, v. Mark JOHNSON, Respondent.
    No. 4D07-1426.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Anthony DiMatteo and Anne C. Sullivan of Gaebe, Mullen, Antonelli, Esco & DiMatteo, West Palm Beach and Coral Gables, for petitioner.
    Scott W. Zappolo of Watterson & Zap-polo, P.A., Palm Beach Gardens, for respondent.
   PER CURIAM.

The petitioner, Publix Supermarkets, Inc., seeks certiorari relief from an order denying protection from discovery. For the reasons stated below, we grant the petition, quash the order, and remand for further proceedings.

The respondent, Mark Johnson, was stopped and held by security agents of Publix who suspected Johnson had shoplifted items from the store. The agents strongly suggested Johnson participate in a civil theft recovery program created by Publix to avoid police involvement, but Johnson declined and eventually left the store. Publix pursued charges. After an initial mistrial, Johnson was found not guilty of two charges. Johnson then sued Publix and two other entities, alleging both false imprisonment and malicious prosecution, the impetus of the underlying action. During the discovery process, Johnson sought copies of correspondences from Publix’s attorneys to other suspected shoplifters related to the civil theft recovery program. Publix sought protection which the lower court denied. This petition followed, wherein Publix claims entitlement to the work-product privilege and asserts the privacy rights of the non-party shoplifters.

Certiorari is the proper method for challenging an order that compels disclosure or denies protection from such disclosure. See Alterra Healthcare Corp. v. Estate of Francis Shelley, 827 So.2d 936, 945 (Fla.2002). To be successful in such a proceeding, the petitioner must show the lower court departed “from the essential requirements of law causing material harm for which there is no adequate remedy on final appeal.” Katz v. N.M.E. Hosps., Inc., 842 So.2d 853, 854 (Fla. 4th DCA 2002).

In Federal Express Corp. v. Cantway, 778 So.2d 1052 (Fla. 4th DCA 2001), this court noted the long-standing doctrine that “[mjaterials prepared in anticipation of litigation are not subject to discovery except on a showing that the party seeking discovery ‘has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ ” Id. at 1053 (quoting Fla. R. Civ. P. 1.280(b)(3)). Further, “[ajceident reports and investigative materials of a party, when prepared in anticipation of litigation, constitute work product and are not subject to discovery without the aforementioned showing.” Id. (citing Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426, 427-28 (Fla.1952)).

Here, the correspondences between Publix’s attorneys and suspected shoplifters who had agreed to participate in the civil theft recovery program surely were documents created in anticipation of litigation. See generally Intercontinental Props., Inc. v. Samy, 685 So.2d 1035 (Fla. 3d DCA 1997) (noting accident reports of slip and fall incidents, prepared by agents of the store, are “certainly ... not prepared because of some morbid curiosity about how people fall at the market” but instead are obviously for purposes of litigation). Had the suspected shoplifters failed to complete the program, Publix would be expected to seek either civil or criminal remedies through a court of law. Because the documents requested by Johnson are protected by the work-product privilege, Johnson was obligated to show he had a need for such material and could not, without undue hardship, obtain the substantial equivalent of the materials by other means. Fed. Express, 778 So.2d at 1053. Publix has provided Johnson with information concerning other lawsuits arising from the civil theft recovery process, thus it appears the substantial equivalent is available through public records or contact with participants of these cases.

Further, these correspondences implicate privacy interests for the non-party suspected shoplifters. Article I, section 23, Florida Constitution, affords Floridians the right of privacy and ensures that each person has the right to “determine for themselves when, how and to what extent information about them is communicated to others.” Shaktman v. State, 553 So.2d 148, 150 (Fla.1989). Names, addresses, and telephone numbers are forms of identity information that can be considered private and confidential information. See Alterra, 827 So.2d 936. When a party seeks private or confidential information, courts must require the party seeking the information to “make a showing of necessity which outweighs the countervailing interest in maintaining the confidentiality of such information.” Higgs v. Kampgrounds of Am., 526 So.2d 980, 981 (Fla. 3d DCA 1988). This court has noted the release of names and telephone numbers, where irrelevant, would be an invasion of privacy for the third parties. Haywood v. Samai, 624 So.2d 1154 (Fla. 4th DCA 1993).

Here, Johnson has failed to show how any correspondences between Publix’s attorneys and suspected shoplifters, concerning the civil theft recovery program, have any relevance to his case. As admitted by Johnson, he declined any participation in this program; thus what happens to a suspect after entry into the program is wholly unrelated to the situation Johnson found himself in after he left the premises. In response to this petition, Johnson claims the correspondences would be relevant to the “issues, mind-sets, motivations, routines, habits and routine practice at play in the store on the day in question.” However, the correspondences were not created “in the store on the day in question” and appear to have no relevance to the acts of the security agents at issue in this case.

Because the lower court failed to require Johnson to make a sufficient showing of necessity (related to work-product protections) or relevance (related to privacy rights), the petition must be granted and the order denying protection quashed. We remand for further proceedings consistent with this opinion.

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


text:
    Juan BORGES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1736.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.

      Juan Borges, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the summary denial of appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant entered a plea of no contest to burglary of a dwelling while armed with a weapon and grand theft. The burglary charge was a first degree felony. See § 810.02(2)(b), Fla. Stat. (2006). Appellant complains that his lawyer did not tell him of a possible defense — that the pocket knife he had in his possession at the time of the burglary was not a “dangerous weapon” within the meaning of section 810.02(2)(b). See Arroyo v. State, 564 So.2d 1153 (Fla. 4th DCA 1990); L.B. v. State, 700 So.2d 370 (Fla.1997). Appellant claims that had he known of this defense he would have gone to trial instead of accepting the plea. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004). No transcript of the plea colloquy was attached to the circuit court’s order denying relief.

On remand, the trial court shall either provide record attachments conclusively refuting appellant’s claim or conduct an evidentiary hearing under Grosvenor.

Reversed and remanded.

GUNTHER, GROSS and TAYLOR, JJ., concur.