text:
    Tony B. JOBE, Appellant, v. Beverly J. JOBE n/k/a Beverly J. Sassano, Appellee.
    No. 1D05-3306.
    District Court of Appeal of Florida, First District.
    July 13, 2006.

      Tony B. Jobe, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Tony Jobe, the former husband, appeals the trial court’s order entered on petitions for modification of a final judgment of dissolution of marriage filed by him and his former wife, Beverly Jobe, n/k/a Beverly Sassano. Mr. Jobe contends that the trial court erred by extinguishing Mrs. Sassano’s obligation to pay retroactive child support, unilaterally modifying the marital settlement agreement, and imputing income to both parties without eviden-tiary support. Because we agree that the final judgment is deficient in several pertinent aspects, as will be discussed below, we reverse the order, in part, and remand.

The parties’ marriage was dissolved by a 1993 final judgment that incorporated a Marital Settlement Agreement, whereby the parties agreed, inter alia, that Mrs. Sassano would be the primary residential parent of their two minor sons, Mr. Jobe would pay $800.00 per month in child support, and both parties would equally share responsibility for the children’s medical expenses.

In June of 1997, due to a substantial change in circumstances, the parties agreed to modify the final judgment. Mrs. Sassano claimed that a recent assault prevented her from adequately caring for the children. She worked as a hairdresser, and owned a hair salon, earning a gross income of $17,998. Pursuant to the parties’ stipulations, the trial court entered an order modifying the final judgment to designate Mr. Jobe as the primary residential parent. The parties also agreed that Mrs. Sassano would not be responsible for child support because of her financial situation. The order further stated that the needs of the minor children were being met as Mr. Jobe had been providing for the needs of the children during the preceding three years. All remaining provisions of the original agreements and final judgment would remain in full force and effect, as specifically provided in the order.

Five years later, Mrs. Sassano filed a supplemental petition for modification of the final judgment seeking primary custody of the children, with Mr. Jobe responsible for child support and the costs of medical and dental insurance coverage for the children. Prior to the filing of the petition, Mrs. Sassano received at least a $40,000 settlement from her civil action for the 1996 assault. She later obtained a real estate license, and in 2004, grossed approximately $38,505 from her hairdressing business and real estate sales. However, shortly before the final hearing, Mrs. Sas-sano discontinued her hairdressing business, leaving real estate as her only source of income.

Mr. Jobe counter-petitioned for a determination of the former wife’s child support obligation on the ground that her financial condition had improved substantially, as well as an award of retroactive child support. At the time of the petition, Mr. Jobe operated a law practice in Louisiana accepting cases on a contingency basis and earning an average annual salary of $56,000, based on tax returns dating back to 1997. Subsequent to Mrs. Sassano’s settlement, Mr. Jobe initiated a separate civil suit on behalf of their eldest son who witnessed the assault against his mother, and the child received a $17,000 settlement that was used for his education.

Following an evidentiary hearing, the trial court entered final judgment denying Mrs. Sassano’s request for modification of custody. The court imputed an annual income of $12,792 to Mrs. Sassano and of $65,000 to Mr. Jobe, and ordered Mrs. Sassano to pay $250 per month in child support. In addition, the court determined that Mrs. Sassano was responsible for child support arrearage from the date of the former husband’s counter-petition.

Although the trial court granted Mr. Jobe’s request for retroactive child support, the court concluded that any amount owed was “extinguished through a credit of funds received, from a court settlement and paid to a trust for the benefit of the children.” The court further concluded that the 1997 agreement stating that the needs of the children were being met by Mr. Jobe essentially eliminated the provision of the divorce judgment that all uncovered medical expenses would be equally shared, resulting in no arrearage. This order is deficient for several reasons.

First, the decision to set aside the former wife’s obligation to pay child support arrearage based upon the receipt of unrelated funds is erroneous as there is no basis for this conclusion. The record does not show that Mrs. Sassano allocated any of her own settlement proceeds for the children’s benefit, from which the trial court could have derived grounds for an equitable credit. Moreover, even if the settlement could extinguish Mrs. Sassano’s obligation to the one child, on whose behalf the suit was initiated, it did not relieve her of the duty to pay child support owed to the youngest son. Although we find no error in the trial court’s decision to make an award of retroactive child support, we hold that the decision to credit Mrs. Sassa-no for the full amount owed was error.

Second, the trial court abused its discretion in interpreting the 1997 modification order to eliminate the parties’ responsibility to equally share the children’s uncovered medical expenses. Only two provisions of the marital settlement agreement were modified by the 1997 order, to wit, those pertaining to custody of the minor children and child support obligations. As explicitly stated in the order, “All remaining provisions of the Final Judgment, Marital Settlement Agreement and Shared Parenting Agreement not specifically amended by th[e] Stipulation shall remain in full force and effect and each of the parties agree to abide by the terms set forth in each document.” In light of this explicit language, the trial court’s interpretation does not appear to further the original intent of the parties, which was that both would equally share responsibility for the children’s medical expenses not covered by insurance. Therefore, reversal of this portion of the order is warranted.

Finally, the trial court’s imputation of income to the parties is not supported by the appropriate findings. “The standard of review for a trial court’s imputation of income is whether competent, substantial evidence supports it.” Wendel v. Wendel, 805 So.2d 913, 914 (Fla. 2d DCA 2001); Gerthe v. Gerthe, 857 So.2d 306, 308 (Fla. 2d DCA 2003). According to the plain language of section 61.30(2)(b), the only finding required for imputation of income would be a finding that the parent is voluntarily unemployed or underemployed. § 61.30(2)(b), Fla. Stat. (2002); Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999). Reversal is required, however, when there are no specific findings in the final judgment regarding imputation of income and there is no competent, substantial evidence in the record to support the trial court’s decision. See Warner v. Warner, 692 So.2d 266, 269 (Fla. 5th DCA 1997) (requiring reversal where there is an absence of both specific findings and record evidence to support the imputation of income).

Here, the trial court imputed income to the former husband at the higher end of his average annual salary, but at the lower end of the former wife’s average annual salary. Yet, there is nothing in the written order explaining how the court reached these conclusions. Given the need for the trial court to reconsider the factors and make findings pertinent to the analysis outlined in section 61.30(2)(b), we reverse the final judgment on this issue as well. Upon remand, the trial court should also consider any in-kind payments made to either party to the extent that they reduce their living expenses. See § 61.30(2)(a)(13), Fla. Stat. (2002); Garcia v. Garcia, 560 So.2d 403, 404 (Fla. 3d DCA 1990) (“Specific dollar values for the in kind contributions and reimbursed expenses must be determined, and the other statutory computations must be performed, in order to arrive at the parties’ net income levels, a proper support amount, and the respective shares of support.”).

For the foregoing reasons, we reverse and remand the final judgment to the extent it dissolves the former wife’s obligation to pay retroactive child support, modifies the former agreement by the parties to share equally the children’s uncovered medical expenses, and imputes income to the parties without proper eviden-tiary support. In all other respects, the order is affirmed.

AFFIRM in part, REVERSE in part, and REMAND with instructions.

WOLF, PADOVANO, and POLSTON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patrick RESSLER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2515.
    District Court of Appeal of Florida, First District.
    July 18, 2006.
    Patrick Ressler, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing appeal of interlocutory order imposing lien on prisoner’s inmate account); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000) (holding order denying indigency status is not immediately reviewable).

ERVIN, BENTON, and BROWNING, JJ., Concur.


author: SUAREZ, J.

text:
    David William MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1612.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals from his convictions and sentences for burglary of an unoccupied conveyance and grand theft. We affirm.

The defendant argues on appeal that he should receive a new trial because the, trial court erred during jury selection and during the State’s case when it admitted a certain photograph and police testimony into evidence. The state asserts that the defendant’s points on appeal are unpre-served or meritless.

The victim entered his truck, parked in front of his home, at approximately 10 or 10:30 PM. He opened the truck door and found a man later identified as the defendant sitting in the front passenger seat rummaging through items in the truck. The victim yelled at the defendant to get out of his truck, ran into his house, grabbed a broom, and chased the defendant from his property while hitting him about the head and body with the broom handle. The defendant stopped running and gave the victim money he had taken from the truck. The defendant then drove away in a waiting car. - .Cash, a camera, medication, and a cell phone were missing from the victim’s truck. A laptop computer was damaged. The victim later identified the defendant in a photo array and at trial. The defense at trial was misidentifi-cation. The jury found the defendant guilty as charged and the trial court imposed habitual offender sentences.

The defendant first claims on appeal that the trial court erred in denying his cause challenges of two prospective jurors, Echevarria and Clark. ‘The trial court did not commit manifest error in denying the challenges. See Puiatti v. Dugger, 589 So.2d 231, 235 (Fla.1991) (a trial court’s decision of whether a juror is competent to serve will not be overturned without a showing of manifest error). During voir dire, both Echevarria and Clarke were presented with the question of whether they could come back with a guilty verdict if the state only produced one witness and proved the elements of the crime beyond a reasonable doubt. Both first answered that they would like to hear more. The trial court separately questioned both and explained that the State had the duty to prove beyond a reasonable doubt the defendant’s guilt. If the state did not meet that standard, the verdict must be not guilty whether or not the defendant testified. Both then unequivocally stated numerous times in response to questioning that they would follow the law as given by the judge. The trial court did not err in refusing to strike each for cause as their responses show each .could sit as a fair and impartial juror.

The trial court did not err by denying the defendant’s peremptory challenge of prospective juror Tahir. The defendant sought to back strike Tahir at the close of jury selection. The State objected and requested a race-neutral reason for the strike pursuant to Melbourne. Defense counsel argued that one of Tahir’s nonverbal indications during the State’s questioning might indicate that Tahir would want the defendant to testify. The trial court did not err by finding this reason to be disingenuous. See Dorsey v. State, 868 So.2d 1192 (Fla.2003) (a “feeling” about a juror is an inadequate justification for exercising a peremptory challenge); Knight v. State, 919 So.2d 628, 632 (Fla. 3d DCA 2006) (trial judges are in the best position to determine the genuineness of a peremptory challenge and should be overturned only upon a finding of clear error).

The defendant raises two evidentia-ry issues on appeal. On the second day of trial, the State announced that the victim had provided a photograph to the State that morning depicting his truck in the driveway the way it appeared when it was burglarized. The defense objected, but failed to explain how the discovery violation was prejudicial. The trial court did not abuse its discretion by allowing the photograph into evidence.

Finally, the defendant argues that the trial court erred by permitting a police officer to testify regarding the officer’s observations of the defendant’s injuries when he was arrested several days after the offense. The defense did not object to the officer’s testimony that the defendant had injuries that appeared to have been caused by a blunt object. Therefore, any error is unpreserved for our review.

The officer also testified, over defense objection, that the bruise was already fading and that the laceration seemed to be healing. The testimony described what the officer personally observed, and did not require expertise. § 90.701, Fla. Stat., (2005). The trial court did not abuse its broad discretion by overruling the defendant’s objection. Bush v. State, 809 So.2d 107, 120 (Fla. 4th DCA 2002) (no abuse of discretion where lay witness testified that a child appeared to be in good health).

Affirmed.

      . The trial court granted the defendant an additional peremptory challenge after it denied defendant’s motion to strike Echevarria. Therefore, any error in the trial court's denial of defendant’s motion to strike Clarke would be harmless. Conde v. State, 860 So.2d 930, 942 (Fla.2003).

      . Melbourne v. State, 679 So.2d 759 (Fla.1996).

      . The trial court conducted a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    A.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5746.
    District Court of Appeal of Florida, First District.
    July 20, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Carolyn M. Snurkowski, Assistant Deputy Attorney General, and Tavis Souder, Certified Legal Intern, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, A.S., appeals the trial court’s Final Disposition Order, in which the court committed him to a maximum-risk residential program. Appellant argues that this disposition must be reversed because the trial court failed to state its reasons for departing from the recommendation of the Department of Juvenile Justice (“DJJ”) and failed to make reference to the characteristics of the program vis-a-vis his needs. Because we agree with appellant, we reverse the trial court’s disposition and remand for further proceedings.

The State charged appellant with shooting or throwing deadly missiles (Count 1), aggravated assault (Count 2), and carrying a concealed firearm (Count 3). Appellant pled guilty to aggravated assault, and the State agreed to abandon Counts 1 and 3. DJJ’s Predisposition Report (“PDR”) quoted the police report, which explained that appellant fired shots into a house during a party. The PDR noted appellant’s living situation, family life, and interests and listed appellant’s prior record, which included commitments to a low-risk residential program and a moderate-risk residential program. After taking these factors into consideration, DJJ recommended that appellant be committed to a high-risk residential program as a result of the aggravated assault.

During the disposition hearing, the trial court read the police report aloud and stated:

This young man, I will note for the record, he had some felony that had some other type disposition going back to 1998. He is now 17 years of age.
Then on December 17th of 2002, he was committed for a felony for burglary. I cannot tell what the commitment was. It may be listed on here. It was probably moderate risk. It was moderate risk.
And then a year later, he had a marijuana charge and he got probation. And then a petit theft commitment, a petit theft in April of this year for which he received a low risk commitment.
So, he has had two prior commitments. He has had two prior commitments, and the one he’s going to be committed on today is a — let me see what he plead [sic] guilty to.

After the prosecutor informed the court that aggravated assault was a third-degree felony, the court stated, “They’re recommending high risk. I’m intending to put him in maximum risk. I’m going to elevate him.” The court later stated:

I cannot overlook the fact that from the report — however, it was stated here that you’re [sic] client showed up at a party with whatever; and that he had a firearm on him or a pistol; and that during the course of the evening, he pulled the firearm, pulled the pistol out and aimed it; and then went out into the front yard, if these facts are true, went out into the front yard and from the front yard position, for whatever reason, aimed his gun and fired it into the house where people were.
And then it stated, and I don’t know if it’s the first or second shooting, that the one person felt grazed on the head.
Which indicated to me that there was a second shot.
The responsibility for those are laid at this young man’s feet is going to be a maximum risk.
I’m surprised the State didn’t prosecute him as an adult, you know, frankly.

In the Final Disposition Order, the trial court adjudicated appellant delinquent and committed him to a maximum-risk residential program. Thereafter, appellant filed a Motion to Correct Disposition Error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), in which he made the same arguments he now makes on appeal. The trial court did not enter an order on the motion within thirty days. Thus, the motion is deemed denied. See Fla. R. Juv. P. 8.135(b)(1)(B). This appeal followed.

Section 985.23(3)(c), Florida Statutes (2005), provides in part:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

We have held that, while section 985.23(3)(c) expressly affords the trial court the discretion to depart from DJJ’s recommendation, it does not grant the trial court the authority to reject the recommendation simply because it disagrees with it. See A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999). The trial court’s decision to disregard DJJ’s recommendation must be supported by a preponderance of the evidence and must make reference to the characteristics of the restrictiveness level vis-a-vis the child’s needs. Id. As such, the proper standard of review is whether the trial court’s findings are supported by competent, substantial evidence. Id. If the trial court fails to make specific findings to support its determination and disregards DJJ’s recommendation without sufficient reasons, or there is no evidence in the record that the court has considered the PDR, the court’s disposition must be reversed. A.G. v. State, 737 So.2d 1244, 1248 (Fla. 5th DCA 1999).

From our review of the record, it appears that the trial court departed from DJJ’s recommendation because of appellant’s prior record and because he apparently fired two shots into the house. However, the PDR made clear that DJJ was well aware of appellant’s prior record and commitments and considered both factors when making its high-risk residential program recommendation. The PDR also made clear that DJJ was aware of the circumstances surrounding the incident at issue, given that DJJ quoted the police report in the PDR. DJJ also took into account appellant’s needs. Given DJJ’s consideration of these facts, the trial court was required to explain why it reached a different conclusion. Yet, it failed to do so. This failure warrants reversal. See K.B v. State, 923 So.2d 1261, 1262 (Fla. 1st DCA 2006) (holding that the trial court failed to explain why its consideration of the same factors considered by DJJ in its recommendation led it to different conclusion than DJJ); D.B. v. State, 923 So.2d 1259, 1260 (Fla. 1st DCA 2006) (holding that merely restating the facts is legally insufficient to support a deviation from DJJ’s recommendation); C.J. v. State, 923 So.2d 553, 554 (Fla. 1st DCA 2006) (holding that the trial court erred because it did not refer to the needs of the child but merely restated the facts already known to DJJ without explaining why its reasons led to a different conclusion); J.W.M. v. State, 911 So.2d 1289, 1290 (Fla. 1st DCA 2005) (holding that the trial court was required to explain why its consideration of the fact that the appellant committed the offense while in school led it to reach a different conclusion than that reached by DJJ given that DJJ was aware of the factor when making its recommendation); N.B. v. State, 911 So.2d 833, 835 (Fla. 1st DCA 2005) (holding that the trial court must explain why it came to a different conclusion than DJJ did); T.S. v. State, 801 So.2d 171, 173 (Fla. 5th DCA 2001) (holding that if the trial court disregards DJJ’s recommendation without sufficient reasons, the case must be reversed and remanded).

Moreover, as appellant argues, the trial court failed to explain why a high-risk residential program was insufficient and failed to make reference to the characteristics of the program vis-a-vis appellant’s needs, which it was required to do. See N.B., 911 So.2d at 836 (holding that the trial court’s findings must have reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child); X.W. v. State, 903 So.2d 318, 320 (Fla. 2d DCA 2005) (holding that the focus of the disposition should be on the child’s needs); C.C.B. v. State, 828 So.2d 429, 433 (Fla. 1st DCA 2002) (holding that sending a message to the community was an invalid reason for deviating from the recommendation when there was a lack of any reference to the restrictiveness level in reference to the needs of the child); A.C.N., 727 So.2d at 370-71 (holding that the trial court erred in not explaining why a more secure residential program was necessary for the appellant and in failing to state how the appellant’s offense established a need for twenty-four-hour secure custody, care, and supervision).

Accordingly, we REVERSE the trial court’s disposition and REMAND for further proceedings.

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


text:
    Willie ROCHELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D05-2923, 1D05-2924, 1D05-2926.
    District Court of Appeal of Florida, First District.
    July 20, 2006.
    Nancy A. Daniels, Public Defender, John B. Kelly, III, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charlie Crist, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant Willie Rochell appeals the trial court’s order revoking his probation due to his arrest for possession of cocaine and failure to pay his financial obligations. Because we find there was no reasonable suspicion for the police officer to stop Appellant for trespass, and because his payment violations were not willful, we reverse.

When applying the reasonable suspicion standard to potential trespassers, it must be “more than mere presence on property.” Williams v. State, 910 So.2d 368, 371 (Fla. 5th DCA 2005). Such a suspicion cannot be based upon a mere hunch or guess. Tamer v. State, 484 So.2d 583 (Fla.1986). In this case, the undercover officer observed two men sitting in a truck for 10 to 15 minutes during the day; the men never left the truck, and no one approached them or interacted with them in any way. Based on these facts, no reasonable suspicion existed to justify a stop, and all evidence seized as a result of the stop should have been suppressed.

As to Appellant’s violation of probation for failing to meet financial obligations, we do not find that Appellant’s failure to pay was willful and substantial, as required by Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001). “Where a probationer makes reasonable efforts to comply with a condition of probation, violation of the condition cannot be deemed ‘willful.’ ” Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996) (citing Thorpe v. State, 642 So.2d 629 (Fla. 1st DCA 1994)). There is no indication in the record before us that a court-ordered payment schedule was created before Appellant met with his probation officer. After that meeting, Appellant made a partial payment before the due date and made reasonable efforts to satisfy his probation officer’s requests.

We have considered the State’s request to certify a question asking the Florida Supreme Court to determine whether the exclusionary rule must be applied in violation of probation hearings. We decline, as this question is settled in Florida, see State v. Scarlet, 800 So.2d 220 (Fla.2001), cert. denied, 535 U.S. 922, 122 S.Ct. 1217, 152 L.Ed.2d 164 (2002), and the United States Supreme Court has not issued a decision that directly prohibits application of the exclusionary rule in such hearings under the Fourth Amendment to the United States Constitution.

For the above reasons, we reverse the trial court’s revocation of Appellant’s probation and remand with directions that Appellant’s probation be reinstated.

REVERSED and REMANDED.

ALLEN, DAVIS and THOMAS, JJ., concur.


text:
    Julio MORA, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D04-2137.
    District Court of Appeal of Florida, First District.
    July 20, 2006.

      Julio Mora, pro se, Appellant.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Julio Mora, appeals the trial court’s order dismissing his Petition for Writ of Mandamus, arguing in part that the trial court erred in dismissing his petition for lack of jurisdiction based on a misinterpretation of Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Appellant also seeks review of the trial court’s order denying his motion for rehearing, arguing in part that the trial court lacked jurisdiction to rule on the motion after he filed a notice of appeal regarding the Order of Dismissal. Because we agree with appellant as to both points, we reverse the Order of Dismissal, strike the Order Denying Rehearing, and remand the cause to the trial court for a decision on the merits. We decline to address the remainder of appellant’s arguments as they do not warrant discussion.

Appellant filed a mandamus petition in the trial court, challenging a disciplinary action of the Department of Corrections (“Department”) that resulted in the loss of gain time. The trial court subsequently entered its Order of Dismissal, in which it noted that a challenge to the loss of gain time is analogous to a collateral challenge to a sentence in a criminal proceeding because it directly affects the inmate’s time in prison, citing Schmidt, and found that this case was a collateral criminal proceeding to the judgment and sentence that resulted in appellant’s incarceration. The trial court concluded that it did not have jurisdiction over the proceeding because it stemmed from a conviction and sentence imposed by another circuit court, reasoning that a circuit court has no authority to review the legality of a conviction in another circuit or to review the propriety, regularity, or sufficiency of an order of a court over which it has no supervisory or appellate jurisdiction. Accordingly, the trial court dismissed the case without prejudice to appellant’s ability to seek relief in the sentencing court.

Appellant subsequently filed a Verified Motion for Rehearing, which contains a certificate of service dated November 24, 2003, in the trial court. In December 2003, before the trial court ruled on the motion, appellant filed a notice of appeal regarding the trial court’s Order of Dismissal. On April 7, 2004, the trial court entered an Order Denying Rehearing, finding that the ten-day time period to file a motion for rehearing expired on November 23, 2003, and denying the motion as untimely. This appeal followed.

As appellee, James R. McDonough, concedes, appellant is correct that the trial court erred in dismissing his mandamus petition for lack of jurisdiction. Because this issue is a purely legal one, our standard of review is de novo. See White v. Wal-Mart Stores, Inc., 918 So.2d 357, 358 (Fla. 1st DCA 2005).

In Schmidt, upon which the trial court relied in dismissing appellant’s petition, the supreme court held that an action challenging the forfeiture of a portion of a prisoner’s previously earned gain time constitutes a collateral criminal proceeding, to which section 57.085, Florida Statutes, does not apply, reasoning that such an action directly affects the time an inmate spends in prison. 878 So.2d at 367. Subsequently, in Burgess v. Crosby, 870 So.2d 217, 218-19 (Fla. 1st DCA 2004), we explained that the supreme court’s opinion in Schmidt intended to limit the application of its holding to the question of the applicability of section 57.085 in determining a petitioner’s indigency in such actions. See also Davidson v. Crosby, 883 So.2d 866, 867 (Fla. 1st DCA 2004). We concluded that such actions are not collateral criminal proceedings for the purpose of determining venue. Burgess, 870 So.2d at 218-19. Thus, we held that the Circuit Court for Leon County, where the Department is headquartered, has subject matter jurisdiction over claims challenging a disciplinary action of the Department resulting in a loss of gain time and that Leon County is the proper venue for such claims. Id. at 220; see also Davidson, 883 So.2d at 867. As such, the trial court had jurisdiction to rule on appellant’s petition.

In his second issue on appeal, appellant argues that the trial court erred in denying his motion for rehearing because it lacked jurisdiction to rule on the motion after his notice of appeal regarding the Order of Dismissal was filed. Appellant is correct because he abandoned the motion for rehearing by filing a notice of appeal before the trial court ruled on it. See Fla. R.App. P. 9.020(h) (“[I]f a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for ... rehearing, ... the following exceptions apply: ... (3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties who then have no such motions pending between them.”). Thus, the trial court’s Order Denying Rehearing must be stricken. See Farr v. Farr, 840 So.2d 1166, 1166-67 (Fla. 2d DCA 2003) (striking the trial court’s order resolving a motion for rehearing, which was entered after the appellant filed a notice of appeal, on the ground that the trial court lacked jurisdiction to enter it).

Accordingly, we REVERSE the Order of Dismissal, STRIKE the Order Denying Rehearing, and REMAND the cause to the trial court to address appellant’s mandamus petition on the merits.

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


text:
    Scott HASEMEIER, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2256.
    District Court of Appeal of Florida, First District.
    July 20, 2006.

      Scott Hasemeier, pro se, Appellant.
    Rosa Carson, General Counsel, Department of Corrections; Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 6, 2006, the Court has determined that the order on appeal is reviewable by motion filed pursuant to Florida Rule of Appellate Procedure 9.430 in the appellate proceeding that precipitated the order rather than by separate appeal. Wagner v. McDonough, 930 So.2d 710 (Fla. 1st DCA 2006). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

ALLEN, DAVIS, and THOMAS, JJ., concur.


author: GRIFFIN, J.

text:
    Gina Vincenza VAN EPPS, Appellant, v. Mark E. HARTZELL, Appellee.
    No. 5D05-4511.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Gina Vincenza Van Epps, DeLand, pro se.
    David L. Thomas, DeLand, for Appellee.
   GRIFFIN, J.

This is an appeal of an order granting the former husband’s motion for clarification of visitation rights and awarding attorney’s fees.

Mark E. Hartzell [“husband”] and his former wife, Gina Vincenza Van Epps [“wife”], were divorced pursuant to a final judgment of dissolution entered on July 11, 2005. The parties had one child, who was born on November 6, 2001. The judgment incorporated a marital settlement agreement which made the wife the primary residential parent of the parties’ son. The agreement provided that “Father will have the child 1/2 of the time to be arranged around his travel and/or work schedule, providing reasonable notice and flexibility.”

On December 7, 2005, the husband filed a motion for clarification of visitation rights and for attorney’s fees. The motion explained that originally the parties had each kept the child for two weeks at a time to accommodate the husband’s work schedule, which required him to teach out of state for two weeks at a time. The husband complained that in November 2005, the former wife refused to let him have the child and then offered him only a rotating week-to-week schedule. He asked for entry of a visitation schedule more in line with his work schedule, and attorneys’ fees.

The lower court granted the husband’s motion at a hearing held on December 15, 2005, and entered an order detailing a 50/50 rotating visitation plan that was designed around the father’s work schedule. The order required the wife to pay the husband’s $50 filing fee and to reimburse him $250 for attorney’s fees, but did not explain the basis of the award. A transcript of this hearing was not included in the record on appeal.

On December 20, 2005, after the parties had filed a number of additional motions and/or counter-petitions, the wife filed a motion for reconsideration of the order clarifying the final judgment, attaching twelve exhibits to support her motion. In the motion, the wife acknowledged:

Former Wife appeared Pro Se with only 3 days notice, provided testimony and answer with counter motion, but agreed, with the rotating timeshare plan (Exhibit A) signed by Judge Doyle.

(emphasis added). She nonetheless argued that: (1) the court’s ruling, which referred to “make-up” visitation, wrongfully implied that she had denied the husband some of his visitation; (2) the court had failed to acknowledge she had been previously designated the primary residential parent; and (3) the court had wrongfully ignored the husband’s high-profile murder case, which he had won by an insanity plea. She asked the court to correct the record, acknowledge that she is the primary residential parent, and vacate that portion of the order requiring her to pay husband’s attorneys’ fees.

On December 20, 2005, the lower court entered an order designed to supplement its earlier order, which clarified the issue of custody in the month of December 2005. The order appears designed to address her complaint that she had not wrongfully denied the husband visitation in December 2005, by granting her an additional week of visitation at the end of December 2005, since she had complained she had actually been shorted on visitation during the month. The lower court entered a separate order denying her motion for reconsideration and another order referring the case to the magistrate to resolve issue of modification of child support. The former wife, acting pro se, has timely appealed the order clarifying the final judgment, as well as the orders entered on December 20, 2005.

The former wife’s brief simply refers to the following claims of error: (1) the denial of her motion for a change of venue; (2) refusal to “hear evidence, background and facts” at the hearing of December 15, 2005; (3) refusal to recognize that she is the primary residential parent; (4) failure to recognize the husband’s psychotic and abusive history; (5) allowing husband to evade the provisions of the original judgment requiring him to submit to a psychological examination; and (6) permitting husband to engage in shared parenting, when it was contingent on the outcome of the psychological examination. She asks this court to: (1) reverse the fee award; (2) overturn the rotating custody order until such time as the former husband submits to a psychological evaluation; and (3) reverse the denial of her motion for change of venue.

The former husband argues that wife is unable to demonstrate an abuse of discretion in clarifying the final judgment and assessing attorney’s fees, as she failed to provide this court with a transcript of the hearing conducted on December 15, 2005. He makes essentially the same argument with respect to the order of December 20, 2005. The lack of a transcript does prevent this court from reviewing the sufficiency of the evidence to support any of the lower court’s findings. See, e.g., Fortune v. Pantin, 851 So.2d 274 (Fla. 5th DCA 2003). There, however, is an error appearing on the face of the judgment which requires review of the fee award even in the absence of a transcript. See generally Monacelli v. Gonzalez, 883 So.2d 361 (Fla. 4th DCA 2004). Fee awards in enforcement proceedings are governed by section 61.16, Florida Statutes. In this case, there is nothing in the final judgment that would permit a fee award because the trial court failed to make any findings, which precludes meaningful appellate review. We therefore reverse the fee award and remand for the requisite findings. See, e.g., Cullen v. Cullen, 884 So.2d 304 (Fla. 2d DCA 2004).

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER and LAWSON, JJ., concur.

      . The same day that the order of clarification was entered, the wife both answered the motion and counter-petitioned in the same pleading to modify or set aside the final judgment. The counter-motion raised a number of issues aside from visitation. For example, the motion addressed the marital property settlement (alleged to have been obtained by fraud), husband’s failure to obtain a psychological evaluation as required by the final judgment, wife's need for new alimony; and her need for legal counsel. Then, on December 19, 2005, four days after the hearing, the husband filed his own counter-petition for modification, seeking to eliminate the rotating custody arrangement and to be named the primary residential parent. The next day, on December 20, 2005, the wife responded with an emergency motion for change of venue to Volusia County, where she was now living, so she could obtain help from legal aid.

      . According to an article from the St. Peters-burg Times provided by the former wife, the murder occurred in 1990 in Tampa.

      . In this order, the court also denied wife's motion for a change of venue.

      . He also asserts that the proceedings were not reported. Wife was given the opportunity to supplement the record with a transcript of the hearing, but failed to submit one.

      .This court is among those courts that find that the lower court has continuing jurisdiction to clarify a final judgment. See generally Roque v. Paskow, 812 So.2d 500 (Fla. 4th DCA 2002); Encarnacion v. Encarnacion, 877 So.2d 960, 963 (Fla. 5th DCA 2004) (“A court may clarify what is implicit in a final judgment, and enforce the judgment.”); Woolley v. Woolley, 637 So.2d 74 (Fla. 5th DCA 1994).


author: LAWSON, J.

text:
    Patrick ROGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-662.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Patrick Rogan appeals the revocation of his probation based on the trial court’s finding that he committed two new offenses, possession of cocaine and possession of a firearm by a convicted felon, and the court’s finding that he failed to pay the costs of his supervision. We affirm the revocation based on the trial court’s finding that Rogan committed the new offenses. However, we reverse the revocation order as to the finding that Rogan violated his probation by failing to pay the required cost of supervision. Although Rogan raises several other legal issues, they are clearly frivolous and do not merit discussion.

With respect to Rogan’s failure to fully pay his cost of supervision assessments in a prompt manner, the State failed to present evidence from which the court could find that Rogan had the ability to pay. Therefore, we reverse as to this finding of a violation. See Edwards v. State, 892 So.2d 1192 (Fla. 5th DCA 2005) (“The State carries the burden of proving by the greater weight of the evidence that a probationer has willfully and substantially violated ... probation. When the violation is for failure to pay restitution or costs, the State must adduce evidence of ... ability to pay to demonstrate willfulness.” (citations omitted)).

With respect to the two new possession charges, the State presented evidence that Rogan was driving a small pickup truck when he was pulled over for driving through an intersection without stopping at a stop sign. A female passenger, Rogan’s wife, was the only other occupant of the vehicle. When a trained canine alerted officers to the presence of drugs in the vehicle, officers searched the vehicle and found a sock full of cocaine and a handgun. Both objects were found behind the single bench seat in the truck’s cab, closest to the driver’s side of the vehicle and immediately adjacent to one another.

Upon discovery of the cocaine and handgun, Rogan was arrested. He was told that he was being arrested for drugs found in the vehicle. Although Ro-gan claimed to have no knowledge of the cocaine or where it came from, he also spontaneously stated that its weight exceeded 28 grams, and that he would therefore be going to prison for trafficking. The officers had not yet weighed the cocaine and had not said anything to Rogan about the amount of cocaine seized. Therefore, Rogan’s spontaneous statement to the arresting officers clearly constitutes competent and substantial evidence supporting the trial court’s finding that Rogan had knowledge of the cocaine. Because the cocaine and handgun were found together, Rogan’s statement also supports the trial court’s finding that Rogan had knowledge of the presence of the handgun. See State v. Bell, 882 So.2d 468, 471 (Fla. 5th DCA 2004) (recognizing that in a constructive possession case, the state can prove knowledge of presence of drugs and ability to maintain control over them by presenting evidence of actual knowledge or evidence of incriminating statements and circumstances from which the trier of fact may lawfully infer the requisite knowledge) (citing Goin v. Comm’n on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995)).

Because the- new crimes constitute substantial probationary violations, we affirm the revocation and reverse only as to the finding of a monetary condition violation. Cf. Mitchell v. State, 871 So.2d 1040, 1042 (Fla. 2d DCA 2004) (recognizing that when an appellate court reverses a violation of community supervision, it need not remand for reconsideration of the revocation when the remaining violations are substantial).

AFFIRMED IN PART; REVERSED IN PART.

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

      . The arresting officers testified that they weighed the cocaine after they booked Rogan into jail. It weighed approximately 29.5 grams.


author: SHARP, W., Senior Judge.

text:
    STATE of Florida, Appellant, v. Cornelius D. PAIGE, Appellee.
    No. 5D05-2737.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellee.
   SHARP, W., Senior Judge.

The state appeals from an order which granted Paige’s motion to suppress evidence seized pursuant to a search warrant. The trial court concluded the information in the affidavit was stale and otherwise insufficient to establish probable cause to issue the warrant. We respectfully disagree and reverse.

On October 8, 2003, law enforcement officers searched a residence at 350 Isabella Drive in Longwood pursuant to a warrant. Items seized from the residence included a kilogram of cocaine, packaging for cocaine, cannabis, a .357 Ruger revolver, ammunition (.9mm and .357 caliber) and drug paraphernalia.

Francheska Ward, one of the occupants of the residence, told officers she lived there with her boyfriend, Paige. Ward implicated Paige in the business of selling drugs.

Paige was charged with trafficking in cocaine (400 grams or more but less than 150 kilograms), possession of a firearm by a convicted felon, possession of not more than 20 grams of cannabis and use or possession of drug paraphernalia. Paige moved to suppress the evidence on the basis that the affidavit in support of the warrant was insufficient and based on stale information. The trial court agreed and suppressed the evidence.

In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether, from the information contained in the warrant, there is a reasonable probability that contraband will be found at a particular place and time. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As the Court in Gates explained:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

462 U.S. at 238-239, 103 S.Ct. 2317.

Whether the state established probable cause prior to obtaining a search warrant is a question of law subject to de novo review. Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005). Thus this court looks only at the four corners of the affidavit to determine if, based on the totality of the circumstances and a common sense assessment, probable cause is shown. Id.

Here the affidavit presented sufficient information to show a fair probability that contraband would be found at the residence. Briefly summarized, the affidavit stated the following:

— The home was the residence of Yvonda Brown, John Davis, Debra Sad-ler and Francheska Ward.
— The affiant, Seminole County Deputy Sheriff Chris Stronko, has been in law enforcement since 1996, satisfied the required Police Standards and Training Program in 1995, completed a 40 hour training course in Narcotics Identification and Investigation in 1999, attended the Federal Law Enforcement Training Center, Criminal Investigator Training Program, which included a 40 hour teaming on Narcotics Identification and Clandestine Drug Labs, and has conducted and assisted in numerous controlled substance investigations.
— In mid-July 2003, Stronko received information from Longwood police from a concerned citizen who wished to remain confidential regarding possible drug sales from the residence. The concerned citizen reported unusual amounts of short stay vehicular and pedestrian traffic and witnessed people placing trash bags in the passenger vehicles and removing trash bags from the residence. — The regular trash pick-up days for the residence are Tuesdays and Fridays. Stronko went to the residence on Tuesday, July 29, 2003, Friday, August 8, 2003, and Tuesday, August 12, 2003 to collect refuse but no trash had been placed curbside on any of those days.
— It was common for persons engaged in the use and/or sale of controlled substances not to put their trash out for collection in an effort to hinder law enforcement.
— On August 26, 2003, Stronko saw about 20 black trash bags put out for refuse collection. Stronko removed 8 bags for inspection.
— The bags contained suspect cannabis, one suspect empty kilogram cocaine package, containing a large amount of suspect cocaine residue, and mail addressed to Yvonda Brown, John Davis, Debra Sadler and Francheska Ward at the address.
— Field presumptive tests indicated positive results for the suspect cannabis and cocaine.
— The empty cocaine package had an outer wrapper of brown paper heavily taped on both the inner and outer surface with packing tape. The outer layer appeared to be opened in a very delicate manner (sectioned in four quadrants opening from the middle). This is a common method for opening a kilogram cocaine package where possible spillage of the contents could occur.
— The next layer consisted of a heavy layer of plastic wrap taped with packing tape. The third layer consisted of plastic wrap smeared with petroleum based automotive grease. The use of grease or other items to mask the scent of illegal drugs is very common among drug traffickers to avoid detection by canines trained to detect illegal drugs by scent. The final layer consisted of some form of rubber and heavy plastic wrap.
— Through his training and experience, it was common knowledge that cocaine, as packaged in the empty kilogram package, was not indicative of personal use or consumption.
— Cocaine in the kilogram amount is normally reduced to smaller quantities from the kilogram weight, then multiplied with cutting agents and distributed for street level sales in ounce and gram quantities.
— On August 27, 2003, Judge Eaton signed .a search warrant based on the above facts.
— Law enforcement decided to conduct surveillance of the residence in an effort to develop intelligence regarding a possible distribution network related to the quantity of cocaine discovered in the original investigation.
— On September 3, 2003, at about 1:15 pm, agents observed Anthony Mays leave the residence in a 2000 Chrysler Concorde and go to the Oviedo area. At about 3:00 pm, agents observed Elton Paige leave the residence in a 1999 Ford Mustang. Agents followed him to a middle school.
■— On September 4, 2003, at about 2:05 pm, Francheska Ward and an unknown black female arrived at the residence. About an hour and 10 minutes later, Ward left the residence and went to Gore Avenue and Parramore Street. Due to counter-surveillance in the neighborhood, surveillance on Ward was terminated.
— On September 5, 2003, at about 10:49 am, a Gold Buick arrived at the residence with Ward, Elton Paige and Cornelius Paige. All three went into the house and then returned to the Buick. Agents followed them to the intersection of SR434 and 17/92 where they arranged for Longwood police to conduct a traffic stop. One of the police officers smelled the strong odor of burnt cannabis. The vehicle went to a subdivision for a short period of time and left. The vehicle started to drive erratically and surveillance was terminated.
— On September 8, 2003, at about 10:35 am, agents observed Elton Paige put trash outside the residence. At about 3:00 pm, agents observed an unknown older black male carrying a white plastic bag leave the residence on a bicycle. Agents followed him to the East Altamonte area. The man returned to the residence without the white plastic bag.
— On September 9, 2003, at about 7:00 pm, agents followed a black male (later identified as Earley Lee Cooper) in a gold Buick, which had been parked in the driveway of the residence, to the intersection of Jackson and Oak Streets in the East Altamonte area. The man •met Rodney Florence at an apartment there.
— On September 10, 2003, at about 11:16 am, agents observed an unknown black female exit the residence with a white plastic bag and leave the area on a bicycle. Agents followed her to the East Altamonte Springs area. Surveillance was discontinued when the woman entered the Jackson Street area.
At about 12:05 pm, agents observed Cornelius Paige arrive at the residence in a 2003 Cadillac. A.few minutes later, Ward arrived. At about 12:28 pm, Paige left the residence and was seen talking on his cell phone. Agents followed Paige to the Orlando area but surveillance was terminated because of Paige’s erratic driving.
At about 9:00 pm, Cooper left the residence on a bicycle. Marked units stopped Cooper who gave his address as the Isabella residence.
— On September 12, 2003, at about 9:20 am, Mays arrived at the residence. Cooper opened the door and the two had a brief conversation. Mays then left the area.
— On September 15, 2003, at about 1:25 pm, Ward and Paige arrived at the residence in the Cadillac. About 20 minutes later, Cooper left the residence, got into the Cadillac and left the area. About 20 minutes later, Cooper returned to the residence in the Cadillac. About 35 minutes later, a tall thin black male left the residence. Ward and Paige left the residence in the Cadillac at about 3:20 pm.
— On September 24, 2003, agents executed a search warrant at the Oak Street apartment where Cooper had met with Florence on September 9th. The search yielded 16.5 grams of suspect crack cocaine and 55.5 grams of suspect cannabis.
— The East Altamonte community is a designated federal ‘Weed and Seed” prosecution area well known for street level drug sales.
— The criminal history check of Cornelius Paige revealed the following drug related arrest criminal history:
January 1992 — Possession of cocaine, possession of cannabis, smuggling cocaine into prison
October 1992 — Probation violation
January 1999 — Possession of cannabis
January 1999 — Possession of cannabis
December 1999 — Probation violation, possession of cannabis
March 2000 — Sale/delivery of cocaine
— The criminal history check of Elton Paige revealed the following drug related arrest criminal history:
October 1995 — Possession of cocaine
July 1996 — Possession of cannabis
October 1998 — Possession of cocaine with intent to sell within 1000 feet of a church
April 1999 — Possession of cocaine with intent to sell within 1000 feet of a church
March 2002 — Possession of cannabis
December 2002 — Possession of cannabis
— The criminal history check of Anthony Mays revealed the following drug related arrest criminal history:
July 1992 — Felony possession of a controlled substance (3 counts)
March 1994 — Felony possession of a controlled substance
July 1994 — Possession of cocaine, possession of cannabis
August 1999 — Possession of cannabis, possession of drug paraphernalia
September 1999 — Purchase of cocaine, possession of cannabis, possession of drug paraphernalia, possession of a controlled substance without a prescription
December 1999 — Possession of cocaine, possession of cannabis, possession of drug paraphernalia
February 2000 — Possession of cocaine with intent to sell within 1000 feet of a church, delivery of methamphetamine, possession of cannabis
June 2000 — Possession of cannabis, possession of drug paraphernalia
September 2001 — Possession of cocaine with intent to sell
January 2002 — Probation violation
— The criminal history check of Ear-ley Cooper revealed the following drug related arrest criminal history:
July 1986 — Sale of cocaine, possession of cocaine, deliver/distribute cocaine
January 1987' — -Delivery of cocaine
April 1988 — Probation violation
May 1989 — Probation violation
December 1989 — Sale of cocaine, possession of cocaine, possession of cannabis
September 1991 — Sale of Cocaine
November 1991 — Sale of cocaine
March 1992 — Probation violation
May 1995 — Sale/delivery of cocaine
March 1998 — Sale/delivery of cocaine
November 1999 — Possession of cocaine with intent to sell, possession of cocaine
— The criminal history check of Rodney Florence revealed the following drug related arrest criminal history:
March 1995 — Possession of cocaine with intent to distribute, possession of drug paraphernalia
August 1997 — Possession of cocaine with intent to distribute
July 2001 — Possession of a controlled substance without a prescription
February 2002 — Possession of a controlled substance without a prescription

In sum, the affidavit showed a tip in July of possible drug sales from the residence from a concerned citizen who reported short stays and persons removing trash bags from the residence, a trash pull in August which produced evidence of cannabis and cocaine and packaging for a kilogram of cocaine which was indicative of sale or distribution, and surveillance in September which showed various persons, some with plastic bags, coming and going from the residence and to known drug areas. In addition, the persons occupying or visiting the residence had extensive drug offense histories and appear to be in the business of drug dealing.

These facts are more than sufficient to establish probable cause for issuance of the warrant. See State v. Gross, 833 So.2d 777 (Fla. 3d DCA 2002) (suppression order reversed where probable cause existed for issuance of search warrant based on anonymous tip that defendant was selling drugs at her new address, single search of garbage can at defendant’s residence which produced drug paraphernalia and 50 small plastic bags, half of which contained cocaine residue, and defendant’s history of cocaine sales at her prior address); State v. Stevenson, 707 So.2d 902 (Fla. 2d DCA 1998) (suppression order reversed where affidavit stating that sheriffs department had received anonymous tip from neighbor that cocaine and marijuana were being sold at defendant’s residence and evidence of cocaine and drug paraphernalia were found when sheriff did trash pull at residence was sufficient to establish probable cause for search warrant, despite fact that tip had been made about six weeks earlier).

In finding no probable cause, the trial court concluded the information from the July anonymous tip and the August trash pull was stale because it was more than 30 days old. However, the federal courts have held there is no “bright line” rule for staleness. See, e.g. United States v. Tyler, 238 F.3d 1036 (8th Cir.2001); United States v. Wagner, 989 F.2d 69 (2nd Cir. 1993).

Whether the allegations in an affidavit are sufficiently timely to establish probable cause depends on the particular circumstances of the case and probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit. United States v. Koelling, 992 F.2d 817 (8th Cir.1993); United States v. McCall, 740 F.2d 1331 (4th Cir.1984). Time factors must be examined in the context of a specific case including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized. McCall.

Here law enforcement obtained a warrant on August 27th based on the tip and trash pull. Law enforcement decided not to execute the warrant but instead conducted surveillance of the residence. This surveillance showed activity consistent with drug sales and indicated the illegal activity was ongoing. When an affidavit establishes the existence of a widespread, firmly entrenched, and ongoing narcotics operation, which is observed to be continuing, a staleness argument loses much of its force. United States v. Leasure, 319 F.3d 1092 (9th Cir.2003). See also United States v. Jiminez, 224 F.3d 1243 (11th Cir.2000), cert. denied, 534 U.S. 1043, 122 S.Ct. 620, 151 L.Ed.2d 542 (2001) (even if information contained in search warrant affidavit is stale, such information is not fatal where government’s affidavit updates, substantiates, or corroborates stale material).

In addition, the kilogram cocaine package found in the trash pull indicated an amount too large for mere personal consumption but consistent with drug sales. In Gross, the court noted that a small amount of drugs might indicate personal use. However, packaging materials are indicative of sale. Where a person is in the business of selling cocaine, it is reasonable to expect that contraband, paraphernalia, and proceeds will be found on the premises. Id.

In the present case, law enforcement had surveillance activity, after the trash pull, which showed persons leaving the home with plastic bags and persons with extensive histories of drug offenses either occupying or visiting the residence. Thus it was logical to assume that drugs would still be found in the residence when law enforcement sought the second warrant. In these circumstances, the information in the affidavit was not impermissibly stale. See United States v. Iiland, 254 F.3d 1264 (10th Cir.2001) (information contained in affidavit supporting the search warrant for defendant’s apartment and . storage unit was not impermissibly stale; although some of the circumstances stated in the affidavit occurred about three months before 'warrant was obtained, other facts showed that defendant’s alleged drug trafficking was ongoing over considerable-period of time, that defendant kept drugs he sold in storage unit and was still renting and visiting unit a few days before warrant was issued); Smigiel v. State, 439 So.2d 239 (Fla. 5th DCA 1983), rev. denied, 447 So.2d 888 (Fla.1984) (magistrate who issued warrant to search defendant’s law office for magnetic tape eraser could properly conclude that crime of tampering with evidence had been committed by defendant in his law office and that instrumentality or evidence of crime could be found there, despite fact that ten months had elapsed since commission of crime, where client later admitted he and defendant conspired to erase tape, client’s testimony was corroborated by police officer and magnetic tape eraser was item ordinarily used in law office).

The “trash .pull” cases cited by Paige, Cruz v. State, 788 So.2d 375 (Fla. 4th DCA 2001), Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999) and Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998), are distinguishable. Those cases involved anonymous tips of criminal activity and trash pulls which revealed the presence of small amounts of drugs. The Fourth District concluded that since the officers did not conduct any surveillance or independent follow-up investigation to corroborate the anonymous tip, perform additional garbage pulls, or develop any other facts to show a pattern of continuous drug activity, they failed to establish a fair probability that drugs would still be found on the premises.

Here, however, there was more than a tip and a trash pull. Law enforcement conducted surveillance and observed individuals leaving the premises with plastic bags and followed others to known drug areas. Furthermore, the magistrate was entitled to consider the extensive histories of drug related arrests of the visitors/occupants of the residence. See Gross (prior history of drug offenses is one factor which may be taken into account in determining probable cause).

REVERSED and REMANDED.

PLEUS, C.J., and MONACO, J., concur.

      . Our determination that the affidavit was sufficient to establish probable cause for issu-anee of the warrant renders the other issues raised by the state moot.

      . “Probable cause” has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. Schmitt v. State, 590 So.2d 404 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992).

      . A kilogram is equivalent to 1000 grams or 2.2046 pounds.


author: TORPY, J.

text:
    ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellant, v. BLUE CROSS AND BLUE SHIELD, etc., et al., Appellees.
    No. 5D05-1735.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Joseph I. Zumpano and Leon N. Patric-ios of Zumpano Patricios & Winker, PA, Coral Gables and Arthur J. England, Jr., of Greenberg Traurig, P.A., Miami, for Appellant.
    Charles C. Lane of Lau Lane Pieper Conley & McCreadie, P.A., Tampa, for Appellee.
    Edward J. Pozzuoli and Stephanie Alexander of Trip Scott, P.A., Fort Lauderdale, Amicus Curiae for Florida Hospital Association, Florida College of Emergency Physicians, Florida Medical Association, the American College of Emergency Physi-dans and The American Medical Association.
    Steven M. Ziegler and Dorothy F. Eas-ley of Steven M. Ziegler, P.A., Hollywood, Amicus Curiae for Florida Association of Health Plans.
   TORPY, J.

The issue in this case is whether the lower court properly dismissed Appellant’s (hereinafter “Florida Hospital”) declaratory judgment complaint seeking an interpretation of section 641.513(5)(b), Florida Statutes (2005). That statute requires HMOs to pay healthcare providers, which have no contract with the HMO, for emergency medical treatment rendered to subscribers of the HMO. The crux of the dispute involves the amount Appellee (hereinafter “Health Options”), an HMO, must pay, pursuant to the statute, for the emergency medical treatment rendered to its subscribers by Florida Hospital. Specifically, the parties disagree over the meaning of statutory language obligating Health Options to pay “the usual and customary provider charges for similar services in the community where the services were provided ....” § 641.51S(5)(b), Fla. Stat. (2005). We hold that Florida Hospital’s complaint stated a cause of action; therefore, the lower court erred when it granted judgment on the pleadings.

Section 641.513(5), Florida Statutes (2005), provides:

(5) Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of:
(a)The provider’s charges;
(b) The usual and customary provider charges for similar services in the community where the services were provided; or
(c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the sub-mittal of the claim.
Such reimbursement shall be net of any applicable copayment authorized pursuant to subsection (4).

Although Health Options acknowledges that the statute requires it to pay some amount for emergency medical services rendered to its subscribers, it contends that it is only obligated to pay an amount equal to 120% of what Medicare would reimburse for the same services. Conversely, Florida Hospital contends that section 641.513(5) requires that Health Options pay Florida Hospital’s full billed charges because they are the “usual and customary provider charges for similar services in the community.” While this dispute has been pending, Florida Hospital has billed Health Options its full charges for services rendered to Health Options’ subscribers, but Health Options has only paid a reduced amount in accordance with its interpretation of the statute.

The issue before us at this juncture is whether this dispute was properly before the lower court for determination on Florida Hospital’s complaint seeking a declaratory judgment. Although initially conceding in a stipulation that declaratory judgment was available to decide the issues in this case, Health Options changed its position in light of our decision in The Florida Physicians Union, Inc. v. United Healthcare of Florida, Inc., 837 So.2d 1133 (Fla. 5th DCA 2003). There, we held that the lower court properly dismissed an action seeking a declaration that the defendant HMO had violated section 641.3903, Florida Statutes, concluding that the action merely sought an advisory opinion. We reasoned that, because section 641.3903 neither expressly nor impliedly created a private cause of action to enforce its provisions, the request for a declaration was merely ■ hypothetical and thus not cognizable.

We think Florida Physicians is distinguishable. The statute at issue there did not purport to establish civil liability. Rather, it merely made provision for the safety and welfare of the public by declaring certain business practices by HMOs to be unfair and deceptive and empowering the Department of Insurance to investigate and punish offenders. See Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla.1994) (“In general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing civil liability.”). The statute at issue here, by contrast, does establish civil liability. This the litigants' acknowledge. The dispute here is not whether liability is imposed by the statute, but the methodology for use in establishing the amount of that liability and the applicable enforcement remedy. Under these circumstances, a private right of action may be implied. Id.

We also agree with Florida Hospital that, even assuming a statutory cause of action may not be implied, common law theories are available for redress through the courts. See, e.g. Westside EKG Assocs. v. Found. Health, 932 So.2d 214 (Fla. 4th DCA 2005). Because a civil remedy exists, whether arising from statute or common law, a request for declaratory relief is authorized because an actual dispute, not merely a hypothetical one, exists between the parties.

Here, the request for a declaration falls squarely within the plain language of the declaratory judgment statute. The request involves an actual controversy between two parties who have an ongoing dispute concerning the meaning of the statute. Unquestionably, the parties’ transactions are governed by the statute. The request for judicial construction of the statute, therefore, is proper.

REVERSED and REMANDED.

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

      . The Joint Case Management Report, filed by the parties stated: "Assuming discovery shows that actual member claims exist ..., the parties have an actual case or controversy ... that can be properly decided by this court through a declaratory judgment action.”

        . We disagree that anything in the language of the statute manifests an intent by the Legislature to confer upon the Agency for Health Care Administration (AHCA) exclusive jurisdiction to resolve this dispute, nor do we agree that the statutory, voluntary dispute resolution process established pursuant to section 408.7057, Florida Statutes (2005), must first be exhausted. Although not determinative, it is noteworthy that the AHCA responded to a complaint made by Florida Hospital involving the instant dispute by stating that it "does not have specific rule making authority to determine what specific payment amounts would comply with Section 641.513(5)(b), Florida Statutes_" Instead, the AHCA directed the parties to bring this issue before a "court of competent jurisdiction or the provider dispute resolution program as outlined in section 408.7057."

      . We similarly distinguish Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003), and Greene v. Well Care HMO, Inc., 778 So.2d 1037 (Fla. 4th DCA 2001).


text:
    Christopher Quinn LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-646.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Christopher Quinn Lewis, Daytona Beach, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Christopher Q. Lewis filed a petition for writ of mandamus, seeking to compel the circuit court of the Ninth Judicial Circuit to rule on a motion for postconviction relief filed initially on June 23, 2005, and amended on July 25, 2005. In response, the State advised this Court that on March 3, 2006, the circuit court ordered the State to respond within sixty days to Lewis’s rule 3.850 motion. The State urged that because “the circuit court is aware of the pending motion, the petition for writ of mandamus should be denied.” We declined the State’s invitation to dismiss the matter, and, instead, directed the State to file a status report regarding the postcon-viction proceedings on or before June 1, 2006. In compliance therewith, the State notified this Court that on April 28, 2006, the trial court granted the State an additional sixty days within which to respond to the rule 3.850 motion. The order does not inform us as to why such an extension was necessary. As it now stands, Lewis’s motion for postconviction relief has been pending for approximately one year and a ruling has not been made.

Mandamus lies to compel a trial court to rule on a motion or petition after a reasonable time. Matthews v. Circuit Court, 515 So.2d 1065 (Fla. 5th DCA 1987). Given the status of the matter below, once the State responds to Lewis’s rule 3.850 motion, the trial court may grant relief, summarily deny relief, or order an eviden-tiary hearing. We have no way of knowing which of these will occur, or, more importantly, when a final order will be entered.

While we are loath to interfere with a trial judge’s management of his or her docket, we are concerned that the failure to rule on Lewis’s motion impairs his rights of access to the courts and due process. Accordingly, we are compelled to grant the petition for writ of mandamus. McBride v. State, 443 So.2d 416 (Fla. 4th DCA 1984).

We direct the Honorable Julie H. O’Kane, or her successor, to rule on Lewis’s rule 3.850 motion for postconviction relief within thirty days of receipt of this order. If an evidentiary hearing is required, an additional sixty days will be allowed to conduct same.

PETITION GRANTED; WRIT ISSUED.

GRIFFIN, PALMER and ORFINGER, JJ., concur.


text:
    David L. DAVIES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3429.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

This is the appeal of the trial court’s denial of Davies’ motion for return of property seized pursuant to a criminal investigation. Davies pled to the charges and filed a motion for return of his property. He subsequently appealed his conviction. While the appeal was pending, the trial court denied the motion, correctly concluding that until the conviction was final, the defendant was not entitled to have the property returned. The conviction subsequently was affirmed.

Although it seems sensible to simply abate the trial court proceedings concerning the property until the judgment becomes final, in Sutherland v. State, 860 So.2d 505 (Fla. 4th DCA 2003), the court approved an outright denial. The trial court correctly followed Sutherland, but we think abatement in these circumstances would simplify issues of timeliness on the claimant’s part and would avoid useless proceedings here and below. We accordingly remand this case to the trial court to reconsider the motion now that the conviction has been affirmed.

REMANDED.

PLEUS, C.J. and MONACO, J., concur.


text:
    Joseph WEIDMANN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-965.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    Joseph Weidmann, Raiford, pro se.
    No appearance for Appellee.
   LAWSON, J.

Joseph Weidmann entered into negotiated pleas to his crimes committed during his Brevard County crime spree. Given the circumstances of his serious crimes, his plea bargain appears to have been quite favorable. Weidmann was convicted and sentenced to concurrent terms, the longest of which was a ten-year sentence, on nine counts in six cases: three counts of robbery with a firearm; armed burglary; grand theft motor vehicle; grand theft; false imprisonment; and two counts of theft from an employer’s establishment. His convictions and sentences were affirmed on appeal. Weidmann v. State, 810 So.2d 957 (Fla. 5th DCA 2002) (table).

Weidmann then embarked upon his manifold attempts to collaterally attack his judgments and sentences. Of note is his second rule 3.850 motion. In this motion, he asserted that his minimum mandatory sentence for use of a firearm in one case was illegal because he was not in actual possession of a firearm during the commission of the offense. Weidmann ignored the fact that he did not go to trial but instead entered pleas and that the State provided a factual basis for his crimes at the plea hearing. The trial court denied relief, and Weidmann appealed. This court considered this claim on the merits and per curiam affirmed. Weidmann v. State, 902 So.2d 819 (Fla. 5th DCA 2005) (table).

He filed a third rule 3.850 motion for post-conviction relief asserting several grounds, including the same claim he had made in his second rule 3.850 motion. The trial court found his claim to be successive. Weidmann appealed, and this court again per curiam affirmed. Weidmann v. State, 908 So.2d 1082 (Fla. 5th DCA 2005) (table).

He raised the claim for a third time in a rule 3.800(a) motion to correct illegal sentence. When the trial court denied this motion, it pointed out that Weidmann’s claim was successive and procedurally barred. The trial court further warned him that, if he filed another frivolous pleading, he would be barred from future pro se filings. Undeterred, Weidmann appealed, and this court agreed with the trial court and ordered a response pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Weidmann responds that he whole-heart-edly believes that his claim has merit and was never ruled upon. This is untrue. His claim was considered and rejected on the merits. See Weidmann, 902 So.2d at 819; see also Elliott v. Elliott, 648 So.2d 137, 138 (Fla. 4th DCA 1994).

We conclude that the present motion is frivolous and an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants); Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (noting “this court is not going to listen to this argument any longer,” in reference to same claim argued by defendant over more than two decades); Freeman v. State, 885 So.2d 477, 478 (Fla. 5th DCA 2004) (recognizing that it is necessary to limit successive claims to give due weight to the finality and presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice).

Accordingly, in order to conserve judicial resources, we prohibit Weidmann from filing with this Court any further pro se pleadings concerning Brevard County, Eighteenth Judicial Circuit Court Case Number 05-2000-CF-042942-C. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Joseph C. Weidmann. Any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

THOMPSON and MONACO, JJ., concur.


text:
    J.C.H., Jr., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-796, 5D05-801.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

REVERSED. V.D. v. State, 922 So.2d 1037 (Fla. 5th DCA 2006); J.S. v. State, 920 So.2d 752 (Fla. 5th DCA 2006).

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


text:
    Jerold PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2483.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see also Daniels v. State, 917 So.2d 245 (Fla. 5th DCA 2005) (citing State v. Schuck, 913 So.2d 69 (Fla. 4th DCA 2005)).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Gary E. BLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2627.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See McLean v. State, 854 So.2d 796, 801 (Fla. 2d DCA 2003), rev. granted, 913 So.2d 597 (Fla.2005).

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


text:
    MATTHEW STEPHEN SESSOMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3604, 5D05-3605.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991); Santana v. State, 795 So.2d 1112, 1113 (Fla. 5th DCA 2001).

THOMPSON, MONACO and EVANDER, JJ., concur.


text:
    Christopher LATHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3882.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006).

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


text:
    S.S., Adoption of E.J.S., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-4034.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    Richard J. D’Amico and Rick Brown, Daytona Beach, for Appellant.
    Ralph J. McMurphy, Wildwood, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Buckner v. Family Services of Central Florida, Inc., 876 So.2d 1285 (Fla. 5th DCA 2004).

PALMER and ORFINGER, JJ., and GRIESBAUM, J.M., Associate Judge, concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLE, Appellant, v. Leola RIVERS, Appellee.
    No. 5D05-4299.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    Charles J. Crist, Jr., Attorney General, J. Andrew Atkinson, Assistant Attorney General, Steven Todd Gold, Deputy Solicitor General, and Samantha Hunter, Honors Attorney, Tallahassee, for Appellant.
    Steven A. Halim of Halim & Pratt, LLC, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See DHSMV v. Alcazar, 822 So.2d 560 (Fla. 5th DCA 2002); In Re: Forfeiture of 1993 Lexus, 798 So.2d 8 (Fla. 1st DCA 2001).

PALMER, ORFINGER, JJ., and DUGAN, D., Associate Judge, concur.


text:
    Pam M. ROSEN-BARKER, Appellant, v. ATEGRA SYSTEM, INC., Appellee.
    No. 5D05-4381.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    N. James Turner, of N. James Turner, Esq., P. A., Orlando, for Appellant.

      Luis A. Gonzalez, of L.A. Gonzalez, Law Offices, P.A., Orlando, and Darren M. Soto, of D. Soto Law Offices, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Homemakers Home & Health Care Servs., Inc. v. Carden, 538 F.2d 98 (6th Cir.1976).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Hiawatha SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1879.
    District Court of Appeal of Florida, Fifth District.
    July 25, 2006.
    Hiawatha Scott, Miami, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Mancino, 705 So.2d 1379 (Fla.1998).

ORFINGER, MONACO and LAWSON, JJ., concur.


text:
    BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the State of FLORIDA, Appellant, v. James D. LEE, Sr., Appellee.
    No. 1D05-4974.
    District Court of Appeal of Florida, First District.
    July 26, 2006.

      Regina M. Fegan and Kelly Samek of the Florida Department of Environmental Protection, Tallahassee, for Appellant.
    Tiffani G. Lee, Miami, for Appellee.
   PER CURIAM.

This case involves a dispute over 80 acres of real property in Okaloosa County. The Board of Trustees of the Internal Improvement Trust Fund (Appellant) filed an action to quiet title and alleged claims of trespass and ejectment against Appel-lee, James Lee. Lee asserted his predecessors acquired title by adverse possession without color of title.

During the two-day non-jury trial, two questions were at issue: (1) whether Lee’s predecessors acquired title to the property by adverse possession prior to the 1939 statutory amendment by which persons were required to return the land for taxes and pay taxes on the land; and (2) whether Lee’s predecessors acquired title to the property by adverse possession before the property was conveyed to the United States in 1937. Ultimately, the trial court concluded Lee proved adverse possession. The court quieted title in Lee, and dismissed Appellant’s claims of trespass and ejectment. Because the trial court’s findings upon which its conclusion is based are not supported by competent, substantial evidence, we reverse.

The parties stipulated the applicable statute was section 4656, Florida Statutes (1927). Based on that statute, Lee was required to prove that, prior to 1937, his predecessors: (a) actually and continually occupied the 80 acres at issue; (b) for seven years; by (c) protecting the 80 acres by substantial enclosure, or usually cultivated or improved the 80 acres. See id; see also Porter v. Lorene Inv. Co., 297 So.2d 622 (Fla. 1st DCA 1974). Lee was required to establish each element by clear and positive proof, which “cannot be established by loose, uncertain testimony which necessitates resort to mere conjecture.” Downing v. Bird, 100 So.2d 57, 64 (Fla.1958). Moreover, Lee was required to show by “clear, definite and accurate” proof “that the possession continued for the full period required by law.” Id. The “limits, location, and extent of his occupation must be definitely and clearly established by affirmative proof, and cannot be established or extended by presumption.” Id.

Only three witnesses with personal knowledge of the use of the property prior to 1937 testified. None of the testimony provided competent, substantial evidence to support any of the required elements. No witness knew how many acres Lee’s predecessors had or where fences were located. Although two witnesses remembered fields and crops, no one knew the size of the fields. No one testified to Lee’s predecessors having 80 acres. At most, one witness testified there were 15, 20, “or 30 acres or whatever,” or 40 acres. That witness marked a map showing where he believed Lee’s father’s house had been located but, when compared to the map showing the disputed parcel and where Lee placed the house, they were two different parcels. One witness did not remember Lee’s father having any fields or fences, and when shown a map, could not show where the house would have been prior to 1937.

In sum, there is no proof that Lee’s predecessors actually and continually occupied the 80 acres at issue for a period of seven years prior to 1937, or that they substantially enclosed or usually cultivated or improved the 80 acres. Nor is there any proof as to the limits, location, or extent of Lee’s predecessors’ occupation of the 80 acres at issue prior to 1937. Consequently, the trial court’s findings that Lee’s predecessors substantially enclosed, cultivated and improved the 80 acres at issue, and their possession was known and recognized by various members of the community, is not supported by competent, substantial evidence. The order quieting title in Lee and dismissing Appellant’s claims for trespass and ejectment is REVERSED, and the case is REMANDED for the trial court to quiet title in Appellant, and reinstate Appellant’s claims for trespass and ejectment against Lee.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Alicia GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-941.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Alicia Griffin, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant Alicia Griffin appeals from an order summarily denying her motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm in part and reverse in part.

Defendant was charged by information with sixteen counts, all alleged to have occurred on December 13, 1990. She entered a nolo contendere plea to all the charges and received concurrent sentences, the longest being for fifty years. Among the charges were four counts (VI-IX) of kidnapping with a firearm, for each of which she was sentenced to fifty years in prison with a three-year mandatory minimum. In the instant motion, she claimed these sentences (as well as others) were illegal because the use of the firearm required a first degree felony to be reclassified-to a life felony, section 775.087(1)(a), Florida Statutes (1989), for which the maximum term of years at the time the offenses were committed was forty years.

The motion was denied because the enhancement statute does not apply to an offense if the use of a firearm or weapon is an essential element of the offense. § 775.087(1). However, as the state agrees in its response to this court’s order to show cause, use of a weapon or firearm is not an essential element of the offense of kidnapping a person.

Section 787.01(2), Florida Statutes (1989), makes kidnapping a person a first degree felony punishable by life. The use of a firearm should have enhanced the kidnapping offense to a life felony. § 775.087(1)(a), Fla. Stat. (Supp.1990); Price v. State, 838 So.2d 587 (Fla. 3d DCA 2003); Corbitt v. State, 697 So.2d 1310 (Fla. 4th DCA 1997). Section 775.082(3)(a), Florida Statutes (1989), provided that a life felony committed on or after October 1, 1983, could be punished either by life in prison or by a term of years not exceeding forty years. It could not be punished by a term of fifty years. Price.

Accordingly, we reverse in part and direct the trial court on remand to resen-tence Defendant to a legal sentence for counts VI-IX. In all other respects, the order on appeal is affirmed.

Affirmed in part; Reversed in part and Remanded for further proceedings.

KLEIN, HAZOURI and MAY, JJ„ concur.