author: SHEPHERD, J.

text:
    Jesus SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-104.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

Jesus Sanchez appeals a trial court order on his motion to correct illegal sentence brought pursuant to Florida Rule of Criminal Procedure 3.800(a). The substantial question presented is whether a criminal defendant formerly incompetent to stand trial is entitled to jail-credit under section 921.161(1) of the Florida Statutes for time during which he is in civil detention and his charges are mandatorily dismissed pursuant to Florida Rule of Criminal Procedure 3.213(b) if the defendant subsequently re-gains competency to stand trial on the charges, is found guilty and is sentenced pursuant to those charges. We conclude that a criminal defendant is not entitled to jail-credit for such periods because detention during these periods is not intended to advance the vindication of the criminal ordinances of this state. At the same time, on the facts of this case, we adjust to Sanchez’s benefit the amount of jail-credit he thus far has been given while in pre-conviction detention with charges pending.

I. Factual Background and Procedural History

This case requires us to examine the fifteen-year-period during which Sanchez was incompetent to stand trial on charges of three counts of first-degree murder, one count of aggravated assault, and one count of unlawful possession of a firearm while engaged in a felony. The charges arise out of a triple murder in Dade County on August 21, 1979. On that date, Sanchez murdered his estranged wife and two others in the estranged wife’s home. Hours later, Sanchez drove himself, together with his two young children, to the Dade County jail and turned himself in. On December 20, 1994, after fifteen years coursing through local jails and state mental hospitals, Sanchez finally was found competent to stand trial. On that day, he pled nolo contendere to all of the charges and was sentenced to three life sentences on the murder charges with a twenty-five-year minimum mandatory term for each, five years in state prison on the aggravated assault charge, and fifteen years on the possession of a firearm charge. Two of the life sentences were to run consecutive to each other. The remaining sentences were concurrent with each other and with the first of the consecutive life sentences.

The decade and a half of Sanchez’s detention subject to our examination can be parceled into two categories: (1) periods when he was in pre-conviction, pretrial custody on the murder, assault and unlawful possession charges with an expectation that after appropriate treatment, he would be brought to trial on those charges; (2) periods interlaced among the pre-con-viction, pre-trial periods when Sanchez was civilly committed to the custody of the state but the charges were dismissed as required by law and it was not foreseeable he would become sufficiently competent to be brought to trial. These two categories exist because the United States Supreme Court has held:

[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial possibility that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.

Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 82 L.Ed.2d 435 (1972)(emphasis added).

Consistent with Jackson, the Florida Supreme Court has promulgated Florida Rule of Criminal Procedure 3.213 entitled “Dismissal without Prejudice during Continuing Incompetency.” Subsection “(a)” of the rule mandates the unfettered release of any criminal defendant who has been determined to be incompetent to stand trial for more than five years if “there is no substantial probability that the defendant will become mentally competent to stand trial ... in the foreseeable future, and [ ] the defendant does not meet the criteria for commitment,.... ” Fla. R.Crim. P. 3.213(a). In a subsection “(a)” release, the charges against the defendant are dismissed without prejudice. Id. Subsection “(b)” of the rule, the application of which is the genesis of the significant issue presented here, applies when a defendant does meet the criteria for post-release commitment. Subsection “(b)” reads in relevant part:

If at any time after 5 years after determining a person incompetent to stand trial ... when charged with a felony, ... the court, after hearing, determines that the defendant remains incompetent to stand trial[,] ... that there is no substantial probability that the defendant will become mentally competent to stand trial ... in the foreseeable future, and the defendant does meet the criteria for commitment, the court shall dismiss the charges against the defendant and commit the defendant to the Department of Children and Family Services for involuntary hospitalization or residential services ... under the provisions of law.... In the order of commitment, the judge shall order that the administrator of the facility notify the state attorney of the committing circuit no less than 30 days prior to the anticipated date of release of the defendant. If charges are dismissed pursuant to this subdivision, the dismissal shall be without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

Fla. R.Crim. P. 3.213(b)(emphasis added). Of course, consistent with Jackson, a defendant can apply for release at a time earlier than that authorized by Rule 3.213. Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004).

Having pled guilty to the crimes and been sentenced, Sanchez today argues he is entitled to jail-credit for all fifteen years he was in custody. Alternately, if we conclude he is entitled to jail-credit only for the pre-conviction period when charges were pending, then Sanchez contends he has been shortchanged on his credit for these periods. Because we conclude Sanchez is not entitled to credit for those periods when charges were dismissed and he was nevertheless detained, we are required to identify those periods in which Sanchez was committed to pre-conviction custody with charges pending and those when he was not. The periods may be summarized as follows:

Period One

This period begins on August 21, 1979, when Sanchez turned himself into the police. According to the record provided to us, he was housed in the Dade County Jail until September 12, 1979, when he was evaluated and found incompetent to stand trial. On that date, he was committed to the forensic unit of the South Florida State Hospital, and, after the forensic facility at that hospital was phased out, the North Florida Evaluation and Treatment Center for treatment, and ultimately trial on the charges. See Fla. R.Crim. P. 3.210(b)(1979); § 918.15(3), Fla. Stat. (1979).

Period Two

This period begins on June 17, 1986, and ends on July 7, 1986. By this time, Sanchez had been in custody while incompetent to stand trial for more than five years. In an order signed and filed with the clerk of the court on June 17, 1986, the circuit court concluded there was no substantial probability that Sanchez would become competent to stand trial in the foreseeable future and dismissed the charges pursuant to Rule 3.213(b). At the same time, the court directed that Sanchez be civilly committed to the Florida Department of Health and Human Services (now the Florida Department of Children and Families) for treatment pursuant to Chapter 394.451-394.4789 of the Florida Statutes (1986), commonly known as the Baker Act. The court order contained the rule-mandated requirement that “the Administrator of the facility in which the defendant is to be treated to notify the State Attorney of the Eleventh Judicial Circuit of Florida no less than thirty (30) days prior to the anticipated release date of the defendant.” See Fla. R.Crim. P. 3.213(b). Because of transport and other logistical reasons, it was not until twenty days later, July 7, 1986, that the transfer actually occurred. Defendant remained in limbo at the Dade County jail during this time.

Period Three

Period Three runs from July 7, 1986, to May 25, 1990. During this period, Sanchez was housed in South Florida State Hospital for treatment pursuant to the Baker Act.

Period Four

Period Four begins on May 25, 1990, and ends on October 5, 1990. On May 25, 1990, responding to the Rule 3.213(b) notification requirement contained in Sanchez’s June 17, 1986 dismissal order, state police met Sanchez as he was being released from his Baker Act confinement, rearrested him, and returned him to the Dade County jail where he was re-indicted on the charges. Through counsel, Sanchez again sought to be released. After another evidentiary hearing focused on his competency to stand trial, Sanchez found himself re-cycled. In an order .dated October 5, 1990, the charges again were dismissed pursuant to Florida Rule of Criminal Procedure 3.213(b), Sanchez returned to the custody of the Florida Department of Health and Human Services for civil detention under the Baker Act, and the Department was ordered to notify the Office of the State Attorney if it again deigned to release him.

Period Five

This period begins on October 5, 1990, and ends on November 7, 1990. There was yet again a transportation and logistical delay in Sanchez’s transfer to the Baker Act facility. The transfer finally occurred on November 7, 1990. Sanchez was housed in the Dade County jail for the intervening thirty-three days.

Period Six

Period Six runs from November 7, 1990 to August 21, 1991. On August 21, 1991, the State again appeared at Sanchez’s Baker Act facility upon notice from the Department of Health and Human Services that Sanchez was about to be released. Sanchez again was re-arrested, jailed, and re-indicted as before.

Period Seven

Period Seven begins on August 22, 1991, and concludes on December 20, 1994. This time Sanchez’s efforts to have himself declared incompetent to stand trial — the State had long contended Sanchez was feigning abnormality — failed. Faced with little recourse, on December 20, 1994, Sanchez pled nolo contendere to all of the charges and was sentenced as previously indicated.

At the initial sentencing in 1994, the trial court awarded Sanchez jail-credit for the first twenty-two days of his incarceration in Period One before he was declared incompetent to stand trial for the first time, 133 days of credit representing the entirety of his confinement in jail during period Four, and 1,217 days for the entirety of his confinement in Period Seven. To this total of 1,372 days, the court below more recently added an additional 1,102 days. We conclude the combined efforts of the sentencing judge and the court below which now awards Sanchez a total of 2,474 days of jail-credit still misses the mark and correct it after our analysis of the significant issue presented.

II. Analysis

A. Sanchez Is Not Entitled to Jail-Credit For The Time He Was Detained Without Charges Pending

Section 921.161(1) of the Florida Statutes (1994) governs jail-time credit. It provides:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

Read literally, this statute applies only to the time a prisoner spends in the county jail awaiting sentence. But the Florida Supreme Court has judicially liberalized the statute to require credit for time served “in any institution serving as the functional equivalent of a county jail.” Tal-Mason v. State, 515 So.2d 738, 740 (Fla.1987). “Although, at first blush, this statement appears broad, the court effectively narrowed it by applying it to the facts of Tal-Mason.” Morgan v. State, 557 So.2d 605, 607 (Fla. 1st DCA 1990). The Florida Supreme Court recently affirmed its intent. See State v. Cregan, 908 So.2d 387, 389 (Fla.2005)(“[W]e have narrowly interpreted what we called ‘the functional equivalent of a county jail.’ ”).

In Talr-Mason, Tal-Mason was deemed incompetent to stand trial and, like Sanchez, committed to the forensic unit of the South Florida State Hospital pending treatment and ultimately trial or a plea. After five years of treatment, he was found competent to stand trial, pled guilty, and was sentenced. Holding that the defendant should be credited for the time spent in state custody undergoing treatment, the court stated:

[Tal-Mason] was in the total custody and control of the state at all times. And while his confinement involved psychological treatment, the primary purpose of both the treatment and the detention was to hold Tal-Mason until such time as he became competent to stand trial, if ever.

Tal-Mason, 515 So.2d at 739. According to the court, “there is ‘no meaningful distinction [in Tal-Mason’s case] between incarceration before trial in a county jail, and state enforced confinement in a mental hospital in preparation for trial.’ ” Id. at 739-40 (quoting State v. Tal-Mason, 492 So.2d 1179, 1182 (Fla. 4th DCA 1986)(An-stead, J. concurring)).

Sanchez argues in his brief that, properly read, Talr-Mason and its progeny require an award of jail-credit not just for detention “in preparation for trial,” but “for any [type of] post-charge, pre-conviction coercive detention which culminates in a trial or plea followed by sentencing, regardless of the statutory provision under which the person was committed ... [and regardless of its purpose].” (emphasis added). As support for his argument, Sanchez directs our attention to Haveard v. State, 520 So.2d 636 (Fla. 1st DCA 1988), in which the First District Court of Appeal, two years after Talr-Mason, applied Tal-Mason to award a defendant jail-credit for a pre-conviction, pre-trial period when he was involuntarily hospitalized under the Baker Act. Sanchez’s argument is misplaced. Talr-Mason clearly establishes not one, but a two-part test for the extension of jail-credit under section 921.161(1) of the Florida Statutes: 1) a coercive deprivation of liberty in an institution “serving as the functional equivalent of a county jail,” and 2) the purpose for the time spent must be in furtherance of pending charges. Haveard’s detention was in furtherance of pending charges. For the periods in question, Sanchez’s detention was not. To extend jail-credit to Sanchez for the periods in dispute would contravene Talr-Mason.

Sanchez further argues that the notification requirement of Florida Rule of Criminal Procedure 3.213(b) makes Sanchez’s Baker Act commitments indistinguishable from his forensic commitments while charged. We disagree for two reasons. First, the detentions themselves were for two distinctly different purposes. The purpose of Sanchez’s forensic commitments was to hold him until such time as he became competent to stand trial. During these periods (Periods One, Four, and Seven), it was anticipated he ultimately would stand trial. See Jackson, 406 U.S. at 738, 92 S.Ct. 1845 (“If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding ... or release the defendant.”). The purpose of his Baker Act commitments was to protect him from himself. See 394.463(l)(a)-(b), Fla. Stat. (1986)(authorizing the initiation of a Baker Act proceeding, inter alia, “if there is reason to believe that [a person] is mentally ill and because of his or her mental illness he has refused voluntary examination ... [or] is unable to determine for himself or herself whether examination is necessary; and [w]ithout care or treatment, he is likely to suffer from neglect, or refuse to care for himself; ... [or] ... [t]here is a substantial likelihood that ... he will cause serious bodily harm to himself or others ... ”). See also Vasquez v. State, 496 So.2d 818, 820 (Fla.1986)(“The test and treatment for incompetency to stand trial and for involuntary civil commitment are different.”).

Second, we conclude the Rule 3.213(b) notification requirement is the legal equivalent of stationing a police guard at the door of the facility where Sanchez was being treated, an action which our sister court, the First District Court of Appeal, in Morgan v. State has in recent past concluded in a medical hospitalization context was insufficient to constitute “the functional equivalent of a county jail.” Morgan, 557 So.2d at 607. In Morgan, the defendant was admitted to a hospital in “near death” condition and remained there for nearly sixty days after killing his wife and attempting to commit suicide. A police guard was stationed outside his hospital room during the entire time. Upon discharge, he was arrested. Although the defendant had not been arrested prior to discharge, he contended he was nevertheless “under arrest” and “in custody,” relying on cases which define “custody” and “arrest” for purposes of applying fourth amendment protections, Miranda warnings and “the escape statute.” Id. at 606-07. Declining to extend Talr-Mason to give jail-credit to the defendant, the court stated:

In Talr-Mason, the supreme court’s inquiry did not end with a finding that commitment to the state mental institution represented a “coercive deprivation of liberty.” Rather, having found such deprivation, the court went on to determine that the detention would culminate in a trial or sentencing. In the instant case, there is no indication that appellant was awaiting trial or sentencing while he was in the hospital. Indeed, by all accounts available to us, he was in the hospital as the result of injuries inflicted at his own hand and was not placed there by the state pending trial. His medical condition sent him there and kept him there.

Id. at 607. Similarly in this case, Sanchez was not in the Baker Act facility awaiting trial or sentencing during the periods in question. The trial court had, as a condition of each commitment, necessarily concluded that “there [was] no substantial probability that [he] will become mentally competent to stand trial ... in the foreseeable future.” See Fla. R.Crim. P. 3.213(b). It was Sanchez’s own medical condition, albeit mental in nature, that necessitated his Baker Act hospitalization. We find orn-ease factually indistinguishable from Morgan and decline to extend Tal-Mason to award Sanchez jail-credit under section 921.161(1) of the Florida Statutes for Periods Three and Six.

B. The Orders Awarding Sanchez Jail-Credit Should Be Amended to Award Him A Grand Total of 3,821 Days of Credit

Applying this conclusion to the periods of detention in this case, it is apparent Sanchez is entitled to jail-credit for Periods One, Four, and Seven. These periods total 3,821 days. In two court orders Sanchez was awarded a total of 2,474 days of credit. Thus, an amended order should be entered awarding Sanchez an additional 1,347 days of credit. Given the voluminous and complex record and the elucidation of the legal principles relating to jail-credit over the last fifteen years by both the Florida Supreme Court and the courts of appeal of this state, the trial judges who have made the prior calculations cannot be faulted.

Affirmed in all respects except that Sanchez’s sentence shall be amended to award him a total of 3,821 days of jail-credit.

      . Although, as will become apparent, the versions of Florida Rule of Criminal Procedure 3.213 which govern this case are those in effect in 1986 and 1990, see infra pp. 1062-1063, we elect for purposes of simplicity and practicality to utilize the current version of the rule. The parties do likewise. Our review of the rules in effect at the relevant times, Florida Rule of Criminal Procedure 3.213(b)(1986) and Florida Rule of Criminal Procedure 3.213(b)(l990) reflect that for our purposes there are no material differences between the versions of the rule in effect at those times and the current rule.

      . Although most Baker Act cases involve individuals who have not been charged with a crime, but are simply potentially harmful to themselves or others, see § 394.453, Fla. Stat. (1986)("It is intended that ... any involuntary treatment or examination be accomplished in a setting which is appropriate, most likely to facilitate proper care and treatment that would return the patient to the community as soon as possible, and the least restrictive of the patient’s liberty....”); In re Holland, 356 So.2d 1311, 1312 (Fla. 3d DCA 1978)(ruling that a patient involuntarily hospitalized under the Baker Act is not entitled to bail), the Act also contemplates situations where individuals will be involuntary committed while criminal charges are pending. See § 394.469(l)(a), Fla. Stat. (2002)("At any time a patient is found to no longer meet the criteria for involuntary placement, the administrator shall: Discharge the patient, unless the patient is under a criminal charge, in which case the patient shall be transferred to the custody of the appropriate law enforcement officer.”).

      . We make the calculation as follows:
      Period Dates Number of Days
      One August 21, 1979 to June 17, 1986 2471
      Four May 25, 1990 to October 5, 1990 133
      Seven August 22, 1991 to December 20, 1994 1217

      . We acknowledge that we did not award Sanchez jail-credit as a matter of law for Periods Two and Four, two brief periods after the trial court dismissed the charges and ordered Sanchez to be Baker Acted but for practical reasons relating to transportation and logistics he had not yet been transported. We also acknowledge the difficulties facing the agencies involved in effecting such a transfer. We simply note that an after-the-fact Rule 3.800 motion for jail-credit is not the vehicle to reprise the state for a delay of this type should an individual desire to do so.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Bill SHAW, Nieves Shaw, Eugenio Rodriguez and Cynthia Rodriguez, Hector Vila and Martha Vila, Eugene M. Williford and Sandra L. Williford, Edward Wilson, Paul Howard and Pam Howard, Jose Sarquis and Mayte Sarquis, Daniel Miller, Helen Fisher, Dora Diaz, Marie Fernandez, Sandra Lynn Craddock, Lori Lee McNew, Melvin Gallar, Eleanor K. Richardson, Ignacio S. Fernandez, Dean Rodriguez, Mary Burbage, Gregg and Debra Jorissen, Richard K. Kellogg, Marcelino and Edna Yanez, Robert and Catherine Mendez, Jr., Perry M. and Georgina C. Gonzalez, Charles T. and Paul A. Strohm, Ted and Sue Strohm, Rodney and Michele M. Douglas, Rhonda Cosgrove, Lillie Mirabole, by her Daughter and next friend, Mary Cardinale, Truong T. Tai, Michael Winsko, Helen K. Estes, Ellis and Jean Kemper, Marjorie L. Ferrer, Catherine L. Fox, William and Gloria Davis, Albert Cabrera and Sara Cabrera, Presbytery of Tampa Bay, Inc., a church, Appellants, v. TAMPA ELECTRIC COMPANY, Appellee.
    No. 2D06-2331.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 2007.

      Norman Cannella, Tampa; and Paul An-tinori, Cresson, Pennsylvania, for Appellants.
    Mark P. Buell and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa; and James L. Estes, Jr., Tampa Electric Company, Tampa, for Appellee.
   ALTENBERND, Judge.

The appellants in this case are a group of homeowners in a neighborhood where Tampa Electric Company (TECO) has installed exceptionally large electrical transmission poles to handle high-voltage power lines between electrical substations. They appeal a summary judgment that denied their claim for a permanent, mandatory injunction. They wanted the circuit court to order TECO to remove these power lines and place them in another location because the massive poles are unsightly and unpleasant. The homeowners’ claims for monetary damages remain pending in the trial court. We affirm the order denying injunctive relief.

I. THE STANDARD OF REVIEW FOR A SUMMARY JUDGMENT THAT DENIES A REQUEST FOR A PERMANENT MANDATORY INJUNCTION

An adequate statement of the specific standard of review for use in this case is not a simple matter. An order granting or denying an injunction following an evidentiary hearing is normally reviewed for an abuse of discretion. “The trial court is afforded broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision.” Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006). We are not inclined to believe that the appealed order is subject to this abuse of discretion standard, and the parties have not asked this court to apply that standard.

In this case, the trial court did not conduct an evidentiary hearing, but instead concluded that it should deny injunc-tive relief at a hearing on a motion for summary judgment. The general “standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo”. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). “A trial court may enter summary judgment only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law.” Reeves v. N. Broward Hosp. Dist, 821 So.2d 319, 321 (Fla. 4th DCA 2002). The moving party carries the heavy burden of showing conclusively that the nonmoving party cannot prevail. Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979). “If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Id. We conclude that the specific standard of review in this case must be a form of de novo review.

In arriving at the proper standard of review, it is helpful to consider the elements necessary to establish entitlement to a mandatory injunction. “A mandatory injunction is proper where a clear legal right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law.” Dep’t of Health & Rehabilitative Servs. v. Weinstein, 447 So.2d 345, 345 (Fla. 4th DCA 1984) (citing Gulf Power Co. v. Glass, 355 So.2d 147, 148 (Fla. 1st DCA 1978)); see also Kellerman v. Chase & Co., 101 Fla. 785, 135 So. 127 (1931). Additionally, the granting of a mandatory injunction is proper where it will not disserve the public interest. See Fla. E. Coast Ry. Co. v. Taylor, 56 Fla. 788, 47 So. 345, 346 (1908) (stating that individual rights must in some cases “yield to the paramount rights of the general public”).

Finally, it is significant that the order on appeal denies an injunction rather than grants one. At least at an eviden-tiary hearing if a plaintiff fails to prove one or more of the elements required for an injunction, the trial court is clearly required to deny injunctive relief. At summary judgment if the movant can conclusively establish that the plaintiff will be unable to prove an essential element for this relief at trial, then the trial court has the authority to deny the mandatory injunction at summary judgment as a matter of law.

In consideration of these concepts, our specific standard of review for a summary judgment that denies a permanent mandatory injunction requires that we determine de novo whether the defendant conclusively established that no genuine issue of fact exists that is material to the issues' relevant to the plaintiffs’ entitlement to a permanent, mandatory injunction and that the plaintiffs would be unable to prove at trial one or more of the essential elements necessary to obtain a permanent mandatory injunction.

As explained in the next section, we are not deciding a case in which a plaintiff has presented prima facie evidence that might permit a trial court to exercise discretion to grant or deny an injunction. It is understandable that a trial judge might wish to deny a permanent injunction at a summary judgment hearing if it is a foregone conclusion that the judge will deny relief after an eviden-tiary hearing. Such an approach would appear inconsistent, however, with the discussion in Baskin v. Griffith, 127 So.2d 467, 474 (Fla. 1st DCA 1961), of the propriety of summary judgment in an equity proceeding.

II. APPLYING THE STANDARD OF REVIEW IN THIS CASE

It was undisputed in the trial court that the electrical poles, although very large and certainly not a desirable component of a residential neighborhood, had been installed in a designated right-of-way pursuant to a permit issued by the Hillsborough County engineering department. They were a necessary portion of the electric grid, creating a loop that provides electrical service to Hillsborough and Pinellas Counties. If the trial court ordered them removed from this neighborhood, they would need to be placed elsewhere, impacting other residents’ property and disrupting electrical service to TECO customers. Such an injunction would have been very expensive and difficult to enforce.

While it is obvious from the record that the trial court was not certain that the plaintiffs had any clear legal right to relief and that it was concerned about the likely public disservice that would be created by such injunction, the trial court ultimately granted the summary judgment on the theory that the plaintiffs could not establish at trial the inadequacy of their legal remedy. If the trial court ultimately determined that the poles created a legal nuisance, even though they had been lawfully installed in the right-of-way, the trial court could still provide an adequate legal, monetary remedy for the damage. The damage to the plaintiffs’ property could be measured based upon the diminution in the value of the plaintiffs’ homes. See Exxon Corp., U.S.A. v. Dunn, 474 So.2d 1269, 1273 (Fla. 1st DCA 1986) (holding that in a nuisance action, the damages caused to real estate are measured by the depreciation in the value of the property). Under the undisputed facts in this case, that remedy was sufficient and the trial court thus had no legal authority to exercise its discretion to order TECO to remove and relocate this portion of its power grid. Accordingly, we conclude that the trial court did not err in granting summary judgment in this case.

Affirmed.

DAVIS and VILLANTI, JJ., Concur.

      . This court reviews this order as a nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

      . Other courts have also struggled with the standard of review in this context, reaching various decisions. See, e.g., Bertucci’s Rest. Corp. v. New Castle County, 836 A.2d 515 (Del.Ch.2003); DMS Pharm. Group v. County of Cook, 345 Ill.App.3d 430, 280 Ill.Dec. 921, 803 N.E.2d 151 (2003); Young v. Mory, 294 Ill.App.3d 839, 228 Ill.Dec. 965, 690 N.E.2d 1040 (1998); Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 848 (Tex.App.2000).

      . Whether a trial court could properly grant a summary judgment denying a mandatory injunction because it was certain that the undisputed evidence at the time of the summary judgment hearing was so strong that the trial court could or would never be convinced at a final hearing to exercise its discretion to grant such relief is an interesting issue. Especially in the context of a mandatory injunction, there may be room for such a summary judgment. "Mandatory injunctions are looked upon with disfavor, and the courts seem even more reluctant to issue them than prohibitory ones.” Johnson v. Killian, 157 Fla. 754, 27 So.2d 345, 346 (1946) (citing Allen v. Stowell, 145 Cal. 666, 79 P. 371 (1905)). Moreover, they "should be granted only in situations which so clearly call for it as to make its refusal work real and serious hardship and injustice.” Id. (quoting Lyons v. Walsh, 92 Conn. 18, 101 A. 488, 490 (1917)); see also Gasparilla Inn, Inc. v. Sunset Realty Corp., 358 So.2d 234, 236 (Fla. 2d DCA 1978) (stating trial courts are seldom reversed for refusing to grant mandatory injunctions because the determination rests largely in the trial court’s discretion). Thus, we do not rule out the possibility that a trial court could properly grant a summary judgment refusing to exercise discretion to issue a mandatory injunction even when the plaintiff presented some evidence to support an injunction, but this more difficult question is not a matter that we are required to resolve in this case.


author: PER CURIAM.

text:
    KEYBANK USA, NATIONAL ASSOCIATION, et al., Appellant, v. Keith BERGEN, Jodi Degrave, Lee Palin, et al., Appellee.
    No. 5D06-1164.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 2007.
    Rehearing Denied March 5, 2007.
    Pedro F. Bajo, Jr. and Margaret D. Mathews, of Akerman Senterfitt, Tampa, for Appellant.
    Kevin P. Kelly and Amanda G. Simmons, of GrayRobinson, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Dore v. Roten, 911 So.2d 218 (Fla. 2d DCA 2005) (holding that trial court was not required to enforce venue selection clause in contract when claims against others, not parties to the contract, were intertwined and pursuing them in separate courts might lead to different results based on the same conduct).

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Lisa Gail APTAKER, M.D., M.P.H., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 1D05-4740.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Rehearing Denied March 7, 2007.
    Lisa Gail Aptaker, M.D., pro se, Appellant.
    Bill McCollum, Attorney General, and Deborah Bartholow Loucks, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to strike third amended initial brief is granted. As pro se appellant failed to respond to this court’s show cause order, this appeal is hereby dismissed. Appellant’s third amended initial brief still references materials stricken from a previously submitted appendix and does not contain a citation to the record for each and every asserted fact as directed by this court.

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


text:
    Patricia WATSON, Petitioner, v. WASTE MANAGEMENT & Gallagher Bassett Services, Respondents.
    No. 1D06-2776.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Suzanne M. Himes, of Law Office of Suzanne M. Himes, P.A., Ocala, for Petitioner.
    David M. Havlicek of Kelley, Kronen-berg, Gilmartin, Fichtel & Wander, Orlando, for Respondents.
    Walter J. Havers, Senior Attorney, of the Office of the Judges of Compensation Claims, Tallahassee, for JCC Jonathan D. Ohlman.
   PER CURIAM.

Petitioner seeks a writ of prohibition asserting that the Judge of Compensation Claims abandoned the role of neutral arbiter in a hearing to set the amount of attorney’s fees to be awarded to claimant’s counsel. Specifically, petitioner complains that the JCC questioned the claimant about the fee award during the hearing.

Claimant sustained accidents in October 2001 and January 2004. Section 440.20(ll)(b), Florida Statutes (1999), requires the Judge of Compensation Claims to determine whether a settlement will be in the “best interests” of the claimant and authorizes the JCC to make or cause to be made such investigations as the JCC considers necessary. In addition, section 440.20(ll)(c), Florida Statutes, was amended by Chapter 2001-91, section 17, Laws of Florida, effective October 1, 2001, to provide that the parties are required to submit information in support of the settlement “as needed to justify the amount of the attorney’s fees.” We determine that the inquiry made by the JCC in this case fell within that allowed by the statutes. The petition for writ of prohibition is therefore denied.

PETITION DENIED.

BROWNING, C.J., BENTON, J., and ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Suzanne HIMES, Petitioner, v. Truda SCHNABLY-VICKERS, Santa Fe Truss & Claims Center, Respondents.
    No. 1D06-2777.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Rehearing Denied March 1, 2007.

      Suzanne M. Himes, of Law Office of Suzanne M. Himes, P.A., Ocala, for Petitioner.
    Thomas Daniel Webb of McConnaugh-hay, Duffy, Coonrod, Pope & Weaver, P.A., Gainesville, for Respondents.
    Walter J. Havers, Senior Attorney, of the Offices of the Judge of Compensation Claims, Tallahassee, for JCC Jonathan D. Ohlman.
   PER CURIAM.

Petitioner seeks a writ of prohibition asserting that the Judge of Compensation Claims abandoned the role of neutral arbiter in a hearing to set the amount of attorney’s fees to be awarded to claimant’s counsel. Specifically, petitioner complains that the JCC questioned the claimant about the fee award during the hearing.

Claimant sustained two accidents in 2001. Section 440.20(ll)(b), Florida Statutes (1999), requires the Judge of Compensation Claims to determine whether a settlement will be in the “best interest” of the claimant and authorizes the JCC to make or cause to be made such investigations as the JCC considers necessary. We determine that the inquiry made by the JCC in this case fell within that allowed by statute. Accordingly, the petition for writ of prohibition is denied.

PETITION DENIED.

BROWNING, C.J., BENTON, J., and ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Rosa P. JONES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellee.
    No. 3D06-2001.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Rehearing Denied March 27, 2007.
    Rosa P. Jones, in proper person.
    John D. Maher, Deputy General Counsel (Tallahassee), for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See David Clark & Assocs., Inc. v. Kennedy, 390 So.2d 149, 151 (Fla. 1st DCA 1980)(as the trier of fact in an administrative proceeding, a hearing officer is privileged to weigh and reject conflicting evidence).


text:
    Mark E. WALLACE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2100.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Rehearing Denied March 8, 2007.

      Mark E. Wallace, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. State v. Cotton, 769 So.2d 345 (Fla.2000); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000); Hamilton v. State, 746 So.2d 512 (Fla. 2d DCA 1999).


author: PER CURIAM. RAMIREZ, J.

text:
    Otto GRACE and Ana D. Grace, his wife, Appellants, v. ROYAL INDEMNITY COMPANY, a foreign corporation, and Karen Holloway, Appellees.
    No. 3D02-1245.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Rehearing Denied March 27, 2007.
    Friedman & Friedman, Fort Lauder-dale; and Lauri Waldman Ross, and Theresa L. Girten, Miami, for appellants.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, and Hinda Klein, Hollywood, for appellees.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

This case is before us on remand from the Florida Supreme Court. In Grace v. Royal Indemnity Company, 858 So.2d 335 (Fla. 3d DCA 2003), this Court per curiam affirmed the trial court’s dismissal of the third amended complaint with prejudice, citing Inservices, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002^‘Aguilera I”). The Florida Supreme Court has since quashed Aguilera I. See Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla.2005)(“Apmi-era II”).

Otto Grace and Ana Grace (“the Graces”), contend that Aguilera II dictates that they are entitled to proceed on their complaint for intentional infliction of emotional distress against Royal Indemnity Company and Karen Holloway. We disagree.

We disagree because the Graces’ complaint fails to allege sufficient facts to support a cause of action for an intentional infliction of emotional distress. Paul v. Humana Med. Plan, Inc., 682 So.2d 1119 (Fla. 4th DCA 1996)(liability for intentional infliction of emotional distress “found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”); State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So.2d 1210 (Fla. 5th DCA 1995). Accordingly, we affirm.

Affirmed.

GERSTEN and WELLS, JJ. concur.

RAMIREZ, J.

(dissenting).

I respectfully dissent. Based on Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005), I believe the complaint alleges sufficient facts to support a cause of action for an intentional infliction of emotional distress.

Otto Grace was an employee of Dynair Services when, on April 4, 1997, he was injured in a work-related accident. Dynair had a contractual relationship with Royal Indemnity Company to provide workers’ compensation benefits, disability benefits and medical benefits to workers injured on the job. Royal Indemnity had an insurance company and/or health maintenance organization structured through Royalcare (a product offered by Royal Indemnity) to provide managed health care benefits to workers injured on the job.

From the time of Grace’s injury through early February 1998, Grace received full and timely medical care. After February 1998, Royal and its adjuster, Karen Holloway, served as Grace’s managed healthcare provider. Holloway had no medical or nursing training, knowledge or experience. All of the decisions regarding Grace’s medical care and treatment after February 1998 were made by persons with no medical/nursing training, knowledge or experience.

On December 8, 1997, Dr. Francisco Vi-lasuso, an anesthesiologist specializing in pain management, evaluated Grace and diagnosed him as suffering from reflex sympathetic dystrophy (RSD) or complex regional pain syndrome of the left lower extremity. Dr. Vilasuso recommended epidural blocks, physical therapy and pharmacological treatments. Grace then received epidural blocks on seven occasions. These blocks resulted in significant improvement.

On February 5, 1998, Dr. Vilasuso considered that Grace had reached maximum medical improvement and referred him to an orthopedist for treatment of the right knee, indicating that he was sufficiently well to have the surgery, as long as he continued receiving therapy for his left leg.

On February 23, 1998, Grace had a flare up of RSD in his left leg before his anticipated right knee surgery. This time, Royal denied the treatment recommended by Dr. Vilasuso. On February 27, 1998, Dr. Vilasuso contacted Royal Indemnity Company and Holloway requesting authorization to treat the patient. At this point, Dr'. Vilasuso believed that Grace could return to gainful sedentary employment as long as the patient received timely care and rehabilitation to his left leg. On March 31, 1998, Grace -filed a request for assistance seeking treatment recommended by Dr. Vilasuso. On April 13, 1998, Holloway responded that Dr. Vilasuso was the authorized treating doctor, but issued a “notice of denial” for the treatments.

On May 4, 1998, Grace filed a “petition for benefits” seeking continued medical treatment with Dr. Vilasuso. Holloway denied the claim on May 8, 1998. On July 6, 1998, Dr. Vilasuso testified as to the medical necessity of Grace’s receipt of epidural injections for his RSD.

On July 20, 1998, Grace filed another request for assistance seeking medical care and the epidural treatments recommended by Dr. Vilasuso. This was followed by another petition for benefits on August 24, 1998. Royal again refused to authorize the treatment on September 1, 1998. Based on Royal Indemnity Company’s and Holloway’s conduct, Grace was not evaluated or treated from late February 1998 until early November 1998, a period of almost nine months.

On November 3, 1998, Dr. Vilasuso examined Grace and found that his condition had significantly deteriorated without treatment since his last evaluation. He prescribed a spinal cord stimulator or lumbar sympathectomy and advised the orthopedist against operating on Grace’s right knee until his RSD of the left knee was under control. On November 10,1998, Dr. Vilasuso finally performed the epidural injections which had been recommended and prescribed nine months earlier.

From November 3, 1998 until August 1999, Holloway repeatedly denied the request for spinal stimulation prescribed by Dr. Vilasuso. Holloway was told that Grace’s condition was deteriorating. Holloway had Dr. Vilasuso’s report in her possession, but kept requesting the same (already performed) evaluation from Dr. Vilasuso.

On August 4, 1999, Dr. Vilasuso re-examined Grace. By this time, Grace’s left leg was swollen and was three times as large as his right leg. He was finally able to implant the spinal cord stimulator on August 12, 1999. Grace is now incapable of returning to work in any capacity and is permanently wheelchair-bound as a direct result of Royal Indemnity Company’s and Holloway’s refusal to provide continued timely treatment as recommended by Grace’s doctor.

An order dismissing a complaint for failure to state a claim is reviewable de novo. Knox v. Adventist Health System/Sunbelt, Inc., 817 So.2d 961, 962 (Fla. 5th DCA 2002). I believe the order of dismissal here should be reversed on the controlling authority of the Florida Supreme Court’s decision in Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla.2005).

In Aguilera, the Florida Supreme Court reversed a decision of this Court that ordered the trial court to dismiss Aguilera’s complaint with prejudice on the basis of worker’s compensation immunity. Id. at 98. It held that the insurance adjuster’s affirmative conduct inflicted damage on the claimant sufficient to state a cause of action for intentional infliction of emotional distress. Id. The conduct of the insurance adjuster in Aguilera included blocking the receipt of prescription medication, unilaterally canceling medical testing ordered by the worker’s compensation carrier’s own physician, and precluding the plaintiff from having emergency surgery for more than ten months during which time the plaintiff had been urinating feces and blood. Id. at 87-88. The issue, as recently stated in Ingraham v. Travelers Indem. Co., 925 So.2d 377, 378-79 (Fla. 3d DCA 2006), is whether the state’s worker’s compensation legislation immunizes an insurance carrier for “mere negligent conduct, simple bad faith and minor delays in payment,” or whether, during the course of the claims handling process, the “insurer commits an independent, intentional tort that is sufficiently separate, ‘subsequent to and distinct from the original workplace injury’.” I believe the allegations made by Grace constitute the exceptional circumstances where a separate cause of action may he.

In Aguilera, the Florida Supreme Court held that:

The allegations here simply go far beyond simple claim delay or a simple termination of benefits. The complaint specifically alleges harm caused subsequent to and distinct from the original workplace injury.

Id. at 91-92. Here, the allegations in Grace’s complaint go far beyond simple claim delay or termination of benefits. The complaint specifically alleges harm caused subsequent to and distinct from the original workplace injury. The carrier here used extraordinary measures to interfere with the medical care Grace was receiving, which was successfully treating his RSD, a serious and progressive medical condition. The lack of timely treatment caused the disease to advance, with additional injury and emotional distress.

Grace was being treated for RSD with epidural blocks on his lower left leg and was showing significant improvement. This regimen was approved by the medical personnel at CRC. It was believed at this time that Grace would be able to return to “gainful sedentary employment” as long as this treatment continued. Grace progressed well and Dr. Vilasuso referred him to an orthopedic surgeon for surgery on his right knee. However, before he could have the surgery, Grace’s RSD flared up.

At this point in time, Grace’s case had been taken over by Royal and its adjuster, Karen Holloway, who had no medical training whatsoever. For no legitimate reason, Holloway interfered with Grace’s ongoing care and refused to re-authorize the epidural blocks which had proven to provide relief to Grace for his RSD. With full knowledge of the necessity for the treatment and despite repeated requests, the refusal went on for nine months. Without the epidural blocks, Grace’s condition deteriorated. During the next nine months, the adjuster repeatedly denied requests for spinal stimulation, which Dr. Vilasuso had ordered. This was not a “flare up” of his RSD, but a progression of the disease caused solely by non-treatment.

Based on the carrier’s intentional and outrageous conduct, Grace is now permanently wheel-chair bound and unable to work in any capacity. As aptly noted in Aguilera:

The workers’ compensation system was never designed or structured to be used by employers or insurance carriers as a sword to strike out and cause harm to individual employees during the claim process and then provide a shield from responsibility for an employee’s valid intentional tort claim for that contact through immunity flowing under the law.

Id. at 91.

That is precisely what happened here. Grace was intentionally injured by his insurance carrier in the process of handling his claim “by conduct substantially certain to harm” him. Id. at 96. He was “placed at the mercy of the carrier and [its] misdirected representatives at every step of the process.” Id. at 97. The complaint here alleged that the adjuster interfered with Grace’s previously approved course of treatment by repeatedly denying authorization for treatment, which had been previously approved and proven to be effective in treating Grace’s RSD. The denials went on for a collective eighteen months. Grace’s condition deteriorated to the point that he is now confined to a wheelchair.

These allegations mirror the “exceptional circumstances” found sufficient in Aguil-era. I would thus reverse the order dismissing this case based on the Florida Supreme Court’s decision in Aguilera and remand for proceedings on the merits.


text:
    Daniel M. COULLIETTE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0541.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2007.
    Rehearing Denied March 2, 2007.
    Nancy A. Daniels, Public Defender, and Steven L. Selinger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Daniel M. Coulliette appeals a conviction for lewd and lascivious molestation upon a ten-year-old boy, contending that the trial court committed fundamental error by allowing the prosecutor to ask him whether he believed the state’s witnesses were telling the truth. We affirm.

After Coulliette testified on direct that he did not molest the child, the prosecutor asked him several times on cross-examination whether the child and Coulliette’s wife had been lying or telling the truth when they provided testimony contradicting his. This was improper. See, e.g., Knowles v. State, 632 So.2d 62 (Fla.1993); Mosley v. State, 569 So.2d 832 (Fla. 2d DCA 1990). However, courts have reversed on this issue only in circumstances wherein defense counsel objected. The only case we have found in which a court considered whether such questioning constituted fundamental error declined to so find, and concluded instead that an objection and curative instruction may have been sufficient to avoid a mistrial. See Olson v. State, 705 So.2d 687 (Fla. 5th DCA 1998) (citing Hunter v. State, 660 So.2d 244 (Fla.1995)).

In the case at bar, a timely objection and instruction to the jury could have limited the prosecutor to one improper question. We cannot rule out the possibility that defense counsel may have allowed such questioning to continue as part of her trial strategy. Accordingly, Coulliette’s conviction is

AFFIRMED.

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


text:
    Lawrence Lee JONES, Petitioner, v. David HARRIS, Florida Department of Corrections, et al., Respondents.
    No. 1D06-2370.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Rehearing Denied March 7, 2007.
    Lawrence Lee Jones, pro se, Petitioner.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying his petition for writ of mandamus is without merit and is rejected; however, because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d-, 2006 WL 176681 (Fla. 1st DCA Jan. 26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s order on indigency imposing a lien as a result of the filing of the petition for writ of certiorari/mandamus below. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

DENIED.

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


author: FULMER, Chief Judge.

text:
    Eddie Houston KEYS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2012.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.
    Rehearing Denied March 12, 2007.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Chief Judge.

Eddie Keys challenges the sufficiency of the evidence to sustain his convictions for trespass and possession of burglary tools. We reverse the conviction for trespass but affirm the conviction for possession of burglary tools.

Keys was charged with burglary of a dwelling and possession of burglary tools. The case proceeded to a jury trial. The jury returned guilty verdicts for trespass, as a lesser included offense of burglary, and the charged offense of possession of burglary tools. The court sentenced Keys to time served for trespass and ten years’ imprisonment as a habitual offender for possession of burglary tools.

At trial, Susanna Cabrera testified that she lived across the street from a mobile home that had been vacant for the last couple of years. The home had a “For Sale” sign. On August 4, 2004, from her bedroom window, Cabrera noticed a man (later identified as Keys) going to the front of the home. Keys was taking the screens down from the front windows and putting them on the ground. Cabrera could not see the back of the mobile home from her vantage point. When asked if Keys went to the back of the home, Cabrera responded: “[He][w]ent to the other corner of the house. There’s some small trees. He went to the other corner, but I didn’t see nothing from the back.”

Asked if she ever saw Keys try to enter through the front door, Cabrera replied that he opened the screen door and looked through, but he did not try to go through the door. Cabrera was asked whether, from her window, she could see if Keys had anything in his hands. She answered: “He had some kind of nails with tools in his hands but — he had something under his arm. I don’t know whether it was a block, but he had something square.” Cabrera acknowledged that she was not sure what exactly she saw in Keys’ hands; “it could have been anything.” As for the object under his arm, “It looked like some sort of brick or — I mean, I wouldn’t be able to tell you what it was.” She stated that “[tjhere was a pile of metal and stuff and trash right in front of the garbage. And he did went in there, in front of the garbage.”

Victoria Ayala, Cabrera’s sister-in-law, testified that on August 4, 2004, Cabrera called her attention to a man across the street. Ayala looked out the door and saw a man taking screens off the windows of the vacant mobile home. She recognized him as someone she knew, she gave his description when she called the police, and she identified Keys in court. Asked if she saw anything in his hands, she said:

Yeah, he was like using something metal to take the screens off the windows. And then he like, he lifted up one side of the stairs where the steps are and took something out from underneath the steps.
And he walked toward the end where there was like a pole beside the street. And it looked like he was going to throw it at the trailer, but he didn’t throw it. So I guess, because there was a car that came by, I guess when he seen it, he got scared or whatever, and just left.

Ayala testified that Keys never went inside the mobile home. The prosecutor asked:

So let’s — you saw him remove some screens. What else did you see?
A. Basically, basically he never went inside. So basically all I seen was that he did take the screens off and that he, you know, walked around the back of it, and then he come back around, but that was it.
Q. But did it appear to you that he was trying to gain entry into this residence? A. That’s what it looked like. I don’t know if he could have been doing something totally different, but that’s the assumption I got.

Deputy Sheriff Hulverson received a description of a white male wearing blue sweat pants and a gray shirt, last seen walking. Responding to the location of the call, he saw Keys, who matched the description, walking in the rain about a block away. He was carrying a book and some deck spikes in his hands. The five deck spikes, introduced as State Exhibit 1, were nails approximately eight inches long and a quarter inch across; two of the five were slightly bent. Hulverson asked Keys if he could talk to him for a minute. Hulverson told him he matched the description of the subject that was seen at the residence, and Keys said he had been down the street looking at a house. That was where he had gotten the deck spikes. Hulverson asked if he would mind riding down there to make sure they were talking about the same house. Keys said that would not be a problem.

Detective Last testified that he drove to the scene to assist Deputy Sheriff Hulver-son. When Last pulled up to the scene, Deputy Hulverson’s patrol car was already parked in front. Almost all of the window screens had been removed, and each was neatly propped up against the side of the mobile home directly underneath the corresponding window. On the back door, Last noticed some pry marks between the door and the door jamb, where the metal meets the frame, right adjacent to the doorknob. Last said he could tell the pry marks were fresh “because there was no type of corrosion or anything, they were bright silver pry marks.” Photographs of the door depicting the marks were introduced by the State.

Last read Keys his Miranda rights and interviewed him. Keys admitted to removing the screens; he said he was checking the home and making sure it was secure because he was interested in renting it. He told Last he knew it did not look right, but he was not trying to break into the house. As for the nails that were in his possession, he said he had found them at the rear of the residence.

Don Goodin, the owner of the mobile home, testified that he owns sixty to seventy homes, and his business is selling them. The property involved in this case had been vacant for some time. Asked if there was a “For Sale” sign in the yard on August 4, 2004, Goodin answered, “That date, I don’t know, but there should have been one there. People keep taking them. So when they’re gone, I put them back in, yes.” Goodin did not know Keys, and Keys would not have had permission to be on the property, to take the screens off the windows, or to pry on the doors. The prosecutor asked, “Before this happened, was there any damage to the property?” Goodin replied, “Not to my knowledge.”

On appeal, with regard to the conviction for possession of burglary tools, Keys argues that the State’s witnesses did not see him prying on the back door of the house attempting to gain entry and his observed actions were equally consistent with vandalism or criminal mischief as they were with any intent to gain entry. Consequently, the conviction for possession of burglary tools cannot be sustained unless the circumstantial evidence excludes every reasonable hypothesis that the pry marks on the back door could have been made by someone else in the days and weeks prior to August 4, 2004. Keys contends that absent proof that the pry marks on the back door were made by him using the deck spikes he found in the yard, his conviction for possession of burglary tools cannot stand. The State responds that reasonable persons could conclude that Keys had the intent to gain entry into the mobile home and the fresh pry marks were evidence of the overt act.

In Thomas v. State, 531 So.2d 708, 709 (Fla.1988), the supreme court explained that the statute criminalizing possession of burglary tools “describes and prohibits a crime in the nature of an attempt.” (Footnote omitted). “In effect, it criminalizes an attempt to commit a burglary or trespass, which is discerned through the possession of tools or devices coupled with the defendant’s intent to use those tools in the commission of the crime.” 531 So.2d at 709.

Where a person is accused of possessing “burglary” tools, the state must prove beyond every reasonable doubt not merely that the accused intended to commit a burglary or trespass while those tools were in his possession, but that the accused actually intended to use those tools to perpetrate the crime. The statute is specific on this point:
Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree....
§ 810.06, Fla. Stat. (emphasis added). Thus, the statute criminalizes the intent to use an item in an illegal way. Mere possession standing alone will not constitute a crime.

Id. The specific intent to commit a burglary or trespass using the tools in the defendant’s possession “exists when he or she engages in or causes some overt act toward the commission of the burglary or trespass, which goes beyond merely thinking or talking about it.” Id. at 710. When the evidence of the intent is circumstantial, the State must prove that the evidence is inconsistent with any reasonable hypothesis of innocence. Id. at 710 n. 2.

We agree with the State’s assertion here that Keys exhibited behavior indicating an intent to gain entry into the mobile home and that it was reasonable to infer that Keys made the pry marks on the back door with the deck spikes. We also agree that Keys’ explanation, that he was interested in renting the home and wanted to make sure it was secure, could be discounted as unreasonable and lacking credibility. We, therefore, conclude that the trial court did not err in denying the motion for judgment of acquittal.

With regard to the conviction for trespass, Keys asserts that he could not be convicted of trespass in a structure because the offense requires proof of entry, and the evidence affirmatively established that Keys did not enter the house. The State responds that Keys entered the airspace of the house when he removed the screens and when he inserted the deck spike into the door jamb.

We agree with Keys’ assertion that the evidence does not demonstrate entry into the structure. We reject the State’s argument that removal of the screens and attempting to pry open the door constituted entry. See J.B. v. State, 405 So.2d 247 (Fla. 3d DCA 1981). In J.B., the appellate court reversed a delinquency order based on a finding that the child was guilty of a trespass of a structure because the State had failed to prove entry into the structure. The court remanded for the trial court to reduce the trespass charge to attempted trespass. Id. at 248.

Attempted trespass is a category two permissive lesser included offense of trespass pursuant to the Schedule of Lesser Included Offenses in the Standard Jury Instructions (2004). Section 924.34, Florida Statutes (2004), would authorize the reduction of the trespass to the attempt if the charge and proof are present. See I.T. v. State, 694 So.2d 720, 724 (Fla.1997) (section 924.34 refers to both category one necessary lesser included offenses and category two permissive lesser included offenses if the charge and proof are present). In this case, the burglary charge in the information does not include language to support the element of attempt, such that attempted trespass can be considered a permissive lesser here. Therefore, we reverse for discharge on the trespass conviction.

Affirmed in part, reversed in part, and remanded.

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

      . Section 924.34 provides:
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    GUARDIAN AD LITEM PROGRAM FOR the ELEVENTH JUDICIAL CIRCUIT and the Florida Department of Children and Family Services, Petitioners, v. T.T., A.E.T., T.D.T., and L.M.I., Respondents.
    No. 3D06-3037.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Rehearing Denied March 9, 2007.
    Stormie Stafford, Supervisory Counsel, Guardian Ad Litem Program; Veronica Robinson, District Legal Counsel, Florida Department of Children and Family Services, for petitioners.
    Kevin Coyle Colbert, Miami, for respondents.

      Before SUAREZ, ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is a Petition for Writ of Prohibition filed by the Guardian Ad Litem Program for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, and the Florida Department of Children and Family Services. We find the petition to be well-founded as the facts alleged in the petition would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. Accordingly, we grant the petition for writ of prohibition.

SUAREZ and ROTHENBERG, JJ., concur.

SCHWARTZ, Senior Judge

(dissenting).

I do not agree that the statements of the trial judge require his disqualification. See Kopel v. Kopel, 832 So.2d 108 (Fla. 3d DCA 2002)(specially concurring opinion), review denied, 848 So.2d 1154 (Fla.2003).


author: GRIFFIN, J.

text:
    Kareem BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1413.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.
    Rehearing Denied March 7, 2007.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr. Assistant Attorney General, Daytona Beach, for Ap-pellee’;
   GRIFFIN, J.

Appellant, Kareem Brown [“Brown”], appeals the- order of the trial court revoking his probation and sentencing him to the Department of Corrections for 8.3 years. He urges that the evidence offered by the State failed to establish a willful and substantial violation.

Brown was placed on probation on March 27, 2002, for the offense of sexual battery on a former girlfriend. The sentence included a five-year mandatory sex offender probationary sentence. As a term of probation, condition 30 provided:

Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, computer services that are relevant to the offender’s deviant behavior pattern.

Brown had a good record for the entire three years he was on probation. However, on January 19, 2005, Robert Cox [“Cox”], Brown’s probation officer, conducted what was apparently a routine policy compliance search of Brown’s residence. Brown, who lived with his wife of four years and five children, was employed and was not at home at the time of the search. Concealed beneath Brown’s mattress in his bedroom, Cox located three DVD’s that were of an obscene or pornographic nature. Brown later admitted that he knew the pornographic DVD’s were under the mattress but said that he had confiscated them from his stepson’s room and had failed to dispose of them.

Jacqueline Brown, Brown’s wife, testified that appellant had found the DVD’s in the room of their son, Sean, and had given them to his wife, who put them under the mattress until she could dispose of them. She knew that, as a condition of sex offender probation, Brown could not have any sexually explicit materials in the house. Sean testified that the DVD’s were given to him by a friend. Sean was at home when Cox found the DVD’s and asked Cox what would happen if the DVD’s were either his or his brother’s. He then told Cox the DVD’s belonged to his brother.

The court determined that Brown violated his probation. Even taking at face value the family’s testimony that the DVD’s found in Brown’s bed were not his, the court could properly find that Brown had violated probation by taking the pornographic DVD’s from his son’s room and failing to dispose of them. We find no error in the trial court’s determination that to continue to possess these materials was a willful and substantial violation.

This is a hard case because Brown had no prior violations of probation in the years since he was sentenced, was successfully employed and was part of an intact family. Brown’s probation officer did not oppose reinstatement of probation for this violation and the trial judge was also willing, provided the State agreed. But the State insisted on a guidelines prison sentence. We find no reversible judicial error.

AFFIRMED.

PALMER and EVANDER, JJ., concur.


text:
    Shedrich HINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3349.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Shedrich Hines, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant Shedrich Hines files this, his fourth motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). This motion was dismissed by the trial court as successive, with an additional provision that future pro se filings attacking his conviction and sentence in this case would be prohibited pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We reverse that portion of the order prohibiting future pro se filings and remand it to the trial court to allow appellant notice and an opportunity to be heard before imposing the injunction. Id.

We affirm the trial court’s dismissal of the first three claims of appellant’s motion to correct illegal sentence. Claim two is barred by the doctrine of “law of the case,” because it was raised in appellant’s first and second rule 3.800(a) motions, the denial of which we affirmed in earlier appeals.

Claims one and three are barred by collateral estoppel, because they were raised in appellant’s third 3.800(a) motion, which was summarily denied but not appealed. See State v. McBride, 848 So.2d 287 (Fla.2003).

Finally, as to claim four, we reverse the trial court’s dismissal of this claim, because it does not appear to have been raised before. Claim four appears to be refuted by the record, as pointed out by the state in its response filed below. However, since the trial court did not entertain it on its merits, we reverse and remand to the trial court for further consideration.

Affirmed in part, Reversed and Remanded in part.

GUNTHER, WARNER and TAYLOR, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Christopher EDDIE, Appellee.
    Nos. 3D06-568, 3D06-567, 3D06-486 and 3D06-485.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellant.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellee.
    Before RAMIREZ, WELLS, and CORTINAS, JJ.
   PER CURIAM.

The State appeals the trial court’s order sentencing Christopher Eddie below the guidelines, as well as the trial court’s order vacating the defendant’s plea of eighteen months in state prison and resentencing him to thirty-six months instead. In case number F05-21892, Eddie was charged by information with carrying a concealed firearm, possession of a firearm by a convicted felon, possession with intent to sell or manufacture or deliver cocaine, possession with intent to sell or manufacture or deliver cannabis, and resisting an officer with violence. In case number F05-34504, Eddie was charged by information for possession of a firearm by a convicted felon.

Eddie entered a plea of nolo contendere to all counts in case number F05-21892. The same day he entered that plea, Eddie entered a plea of nolo contendere in case number F05-34504. In both cases, Eddie’s scoresheet resulted in the lowest permissible prison sentence of 30.15 months.

At the sentencing hearing, the following transpired:

Defense: [Defendant], please stand. He will [sic] like to accept the Court’s offer, with the understanding that if the State appeals?
Court: Or says they want—
Defense: Or say they want to appeal, excuse me, that [Defendant] will ask Your Honor to vacate his plea.
Court: Right. Because if, in fact, the State asked or tells me that they are objecting to it, and they are intending to take an appeal, then obviously, it would be an illegal sentence, due to the State’s objection.
And if [Defendant] doesn’t move on his own, to have it set aside he will get the 18 months State prison, automatically to a 36 month State prison sentence. So because that’s what—
State: Just to let you know, the offer that the State made was 30 months. And we will be withdrawing from plea negotiations and objecting to the Court’s offer.
Court: Okay. I understand. Well you guys are going to have to do what you think is appropriate.

The colloquy took place, and the trial court set the case for hearing “so the State can make a determination whether they want to move to have it set aside or not.” Thereafter, in both cases, the trial court offered a sentence of eighteen months in prison as an . habitual violent offender, which Eddie accepted. On February 23, 2006, the State filed a notice of appeal of the sentence below the sentencing guidelines.

On February 24, 2006, a hearing was held at which the State reported that it had appealed the sentences. However, Eddie moved to set aside the sentences, which motion was granted by the trial court. Eddie was resentenced to thirty-six months prison as an habitual violent offender. The State appealed the order vacating the sentence and the resentencing. These appeals then were consolidated.

The State raises two issues on appeal. First, the State contends that the trial court erred when it sentenced Eddie to a downward departure sentence without providing written reasons for the departure. We agree.

As recognized by the Florida Supreme Court, downward departures without written reasons can be challenged by the State on appeal and are reversible errors. Gartrell v. State, 626 So.2d 1364, 1365 (Fla.1993). The proper method for the State to challenge a below the guidelines sentence is to file a notice of appeal of the sentence. Id. at 1365-66.

Here, Eddie’s guideline sentence for both cases was for a minimum of 30.15 months. However, on February 17, 2006, the trial court offered Eddie a below-the-guideline-sentence of eighteen-months. At that time, the trial court recognized that the sentence was illegal and would be overturned if the State sought an appeal. Although the State objected, the trial court sentenced Eddie and set the case for further hearing “in case the State appeals.” No written departure reasons were filed, so the State appealed the trial court’s downward departure sentence. Eddie properly concedes that the trial court’s original eighteen-month sentence was error. We thus reverse on this issue.

The State next contends that the trial court lacked jurisdiction to vacate the sentence and resentence Eddie on February 24, 2006. If the State files a notice of appeal of a downward departure sentence, jurisdiction immediately would vest with the appellate court to determine the legality of the sentence. Rodriguez v. State, 899 So.2d 471, 473 (Fla. 3d DCA 2005). A plea offer becomes binding upon its formal acceptance by the court and upon the defendant starting to serve his sentence. See Fla. R.Crim. P. 3.172(f); Rodriguez, 899 So.2d at 473. Thus, the State’s only recourse when questioning the legality of a downward departure sentence is to seek an appeal. Certainly, pursuant to Florida Rule of Appellate Procedure 9.600(b), if the jurisdiction of the lower court has been divested by an appeal from a final order, the appellate court by order may permit the trial court to proceed with specifically stated matters during the pendency of the appeal. Without such an order from the appellate court, however, the trial court lacks jurisdiction.

In the case before us, although the trial court was aware that the State had filed a notice of appeal the day before it resen-tenced Eddie, the trial court nevertheless vacated the defendant’s original sentence and resentenced him. This court had not issued an order permitting the trial court to proceed on the matter during the pen-dency of the appeal. The trial court was, thus, without jurisdiction to resentence Eddie because the State already had appealed the sentence to this Court. Eddie concedes this issue as well.

Accordingly, we reverse the original eighteen-month sentence, vacate the thirty-six month sentence, and remand the case to the trial court for further proceedings. At re-sentencing, Eddie will be given the option of withdrawing his plea, if he wishes to do so.

Reversed, order vacated, and the case is remanded for further proceedings.


text:
    Wildo RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2759.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Rehearing Denied March 16, 2007.

      Wildo Rivera, in proper person.
    Bill McCollum, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and LÁGOA, JJ.
   PER CURIAM.

Wilfredo Rivera appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The defendant was sentenced to life in prison. In his motion to correct illegal sentence, he alleges that the trial court prepared a sentencing guideline scoresheet, but then failed to apply a guideline sentence to the defendant. The defendant has raised a facially sufficient claim for rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. Consequently, we reverse and remand for further proceedings. On remand, if the trial court again enters an order summarily denying the post-convic-tiori motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.


text:
    D’Arcy L. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4059.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      D’Arcy L. Robinson, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant D’Arcy Robinson appeals a trial court order summarily denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), challenging his habitual violent felony offender sentence in this case. This is at least the fourth time Robinson has raised the same challenge to his sentence, and the fourth time his challenge has been rejected in the trial court and on appeal. The trial court did not err in rejecting this latest challenge as successive and repetitive of the claim earlier rejected several times. We affirm.

This court issued an order to show cause why Robinson should not be prevented from filing successive and identical pro se challenges pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). His response did not provide a legally sufficient basis for entitlement to continue raising the same challenge. All that he argued is that rule 3.800(a) does not bar successive motions. However, that does not mean that the successive motions may be filed on the identical issue previously raised and rejected by the trial court. See Carter v. State, 931 So.2d 1045, 1045 (Fla. 4th DCA 2006) (“Appellant’s repeated filing of frivolous appeals is diminishing this court’s ability to consider legitimate claims.”); Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”).

Robinson’s repetitive filings are an abuse of the legal process and will have an adverse affect on this court’s limited resources if allowed to continue. We therefore prohibit him from filing any future pro se pleadings in this court challenging his habitual violent felony offender sentence in case number 95-11287 CF10A. Any further pro se pleadings on this issue in this court will be summarily rejected by the Clerk of this court.

No rehearing will be entertained.

Affirmed.

WARNER, SHAHOOD and GROSS, JJ., concur.


author: SUAREZ, J.

text:
    Patricia Pollak WEISS, Petitioner, v. Phyllis Pollak BERKETT, individually and as the Successor Interim Trustee of the Trusts Under the Will of Albert Pollak, deceased, and the Albert Pollak Intervivos Trusts and Lloyd S. Berkett, and Clerk of the Courts Harvey Ruvin, Respondents.
    No. 3D06-3047.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Patricia Poliak Weiss, in proper person.
    Hirsehhorn & Bieber and Joel Hirsch-horn, Miami, for respondents.
    Before WELLS, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

We grant the petition for writ of prohibition. The Florida Rules of Civil Procedure apply to adversarial proceedings in probate court. See Mangasarian v. Mercurio, 570 So.2d 356 (Fla. 3d DCA 1990); Fla. Prob. R. 5.020(d)(2); Fla. R. Civ. P. 1.420(e). The trial court has exceeded its jurisdiction as the order under review does not comport with the requirements of Florida Rule of Civil Procedure 1.420(e) for dismissal for lack of prosecution.

Petition for Writ of Prohibition granted.


author: COPE, C.J.

text:
    Walter Bernard CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2534.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before COPE, C.J., and RAMIREZ and SHEPHERD, JJ.
   COPE, C.J.

Walter Bernard Campbell appeals the sentence imposed on him as a violent career criminal (“VCC”). We remand for a new sentencing proceeding.

Defendant-appellant Campbell was convicted of attempted robbery and burglary with an assault and battery. At sentencing the State sought to have the defendant classified as a VCC. See § 775.084(l)(d), Fla. Stat. (2000). The State had to establish (among other things) that the primary felony offense for which the defendant is to be sentenced was committed within five years after the defendant’s release from prison. See id. § 775.084(l)(d)3.a.

At the sentencing hearing, the State offered a paper printout of several pages on the Florida Department of Corrections’ website relating to the defendant. The website entry showed the defendant to be “out of custody” on July 9,1999, which was within five years of the current offense. The State maintained that this “out of custody” entry was the defendant’s release date from prison.

The defense objected that the printout was hearsay and not self-authenticating. The court overruled the objection and adjudicated the defendant to be a VCC. The printout from the website was the sole factual basis for determining that the defendant committed his current offense within five years of his release from prison. The defendant has appealed.

We conclude that the hearsay objection to the printout should have been sustained. The First District has said:

“Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.” Cofield v. State, 474 So.2d 849, 851 (Fla. 1st DCA 1985)(adopting rale as stated in Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974)); see Desue v. State, 908 So.2d 1116 (Fla. 1st DCA 2005). In appropriate circumstances, a printout may also be admissible as a properly certified copy of an official public record. See § 90.902(4), Fla. Stat. (2003); Charles W. Ehrhardt, Florida Evidence § 902.5, at 945 (2004 ed.) (explaining that to be self-authenticating under section 90.902(4), “the custodian of the document, or other person authorized by statute to make a certification, must certify that the copy is correct and that the person has custody of the original.... The custodian’s signature must follow the statement”). Compare King v. State, 590 So.2d 1032, 1033 (Fla. 1st DCA 1991)(holding probation officer’s testimony regarding defendant’s release date, based on an unauthenticated Department of Corrections computer printout, was inadmissible hearsay, and that “[wjithout the improperly admitted testimony, the evidence is legally insufficient to support the trial court’s finding that appellant is an habitual felony offender”).

Gray v. State, 910 So.2d 867, 869 (Fla. 1st DCA 2005) (emphasis in original; footnote omitted). See also Glover v. State, 871 So.2d 1025, 1025-26 (Fla. 1st DCA 2004); King v. State, 590 So.2d 1032, 1033 (Fla. 1st DCA 1991); Charles W. Ehrhardt, Florida Evidence § 803.6b, at 911-13 (2006).

While we must reverse the VCC adjudication and remand for resentencing, nothing prevents the State on remand from again seeking to establish that the defendant qualifies as a VCC. The cases relied on by the State are not on point.

Since there must be further proceedings on remand, we point out that a VCC adjudication is not permissible for count 1, the offense of attempted robbery. See Walters v. State 790 So.2d 483, 484-85, (Fla. 5th DCA 2001); Landreth v. State, 739 So.2d 1198 (Fla. 2d DCA 1999).

For the stated reasons, we reverse the sentencing order and remand for a new sentencing hearing at which the trial court may again consider whether to sentence the defendant as a VCC on count 2, burglary with an assault or battery.

      . The crime date was October 16, 2000.

      . The Fourth District has certified, direct conflict with Gray on an issue not involved here, the sufficiency of a certification issued by the Florida Department of Corrections. See Yisrael v. State, 938 So.2d 546, 550 (Fla. 4th DCA 2006)(en banc).

      . We decline to address the decisional conflict mentioned in footnote 2.