author: SILBERMAN, Chief Judge. MORRIS, J.,

text:
    STATE of Florida, Petitioner, v. Jeremy Wade WELCH, Respondent.
    No. 2D11-2911.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Rehearing Denied Aug. 20, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Petitioner.
    Jeremy Wade Welch, pro se.
   SILBERMAN, Chief Judge.

The State seeks common law certiorari review of the circuit court’s order that grants Jeremy Wade Welch’s petition for removal of the requirement to register as a sexual offender. We grant the State’s petition for writ of certiorari and quash the circuit court’s order.

Welch was charged with the second-degree felony of lewd or lascivious battery on a female under sixteen years of age, occurring on or between December 13, 1999, and March 31, 2000. The probable cause affidavit indicates that the victim stated that she had consensual sex with Welch, that she became pregnant, and that she was fourteen and Welch was eighteen at the time of conception. Welch and the victim were in a b oyfr iend/girlfriend relationship. Welch admitted to having consensual sexual intercourse with the victim six times and that he knew she was fourteen. As a result of the relationship, the victim gave birth to a baby. Welch entered a guilty plea, and on March 6, 2001, the trial court placed Welch on ten years’ probation and declared him a sexual offender.

On April 14, 2011, Welch filed a petition for removal of the requirement to register as a sexual offender pursuant to section 943.04354, Florida Statutes (2010). The circuit court conducted a hearing on the petition. Welch argued that since the time of the offense he married and had two children with his wife. He completed sex offender treatment as required by his probation, and he now has unsupervised contact with the children from his marriage. Welch requested that the court exercise its discretion and remove him from the sex offender registry.

The State acknowledged that the offense dealt with “consensual” conduct. However, the State argued that Welch did not meet one of the requirements of the statute to allow the circuit court to exercise its discretion. Section 943.04354 provides as follows:

(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:
(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.

The State argued that Welch is more than four years older than the victim. Welch’s date of birth is March 30, 1981, and the victim’s date of birth is June 19, 1985. Thus, Welch is four years, two months, and twenty days older than the victim.

The circuit court granted Welch’s petition on the reasoning that from the “strict ages at the time, 18 and 14, that’s four years.” The circuit court warned Welch that the prosecutor was “probably correct and if the District Court of Appeal looks at this they’ll probably rule that I’m wrong because you’re more than four calendar years.” The circuit court stated that it was being “equitable under the circumstances of what’s happened in the last ten years.”

The State filed a notice of appeal, and this court entered an order directing the State to identify the provision of law or of Florida Rule of Appellate Procedure 9.140 that authorized the appeal. The State responded and filed a motion requesting to convert the proceeding to an original proceeding seeking certiorari review. This court entered an order converting the proceeding to one in certiorari.

“To obtain common law certiora-ri relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm.” Gonzalez v. State, 15 So.3d 37, 39 (Fla. 2d DCA 2009). The requirements of material harm and the lack of a remedy on appeal are jurisdictional. Id. Irreparable harm is present because the State has no remedy by appeal. See Fla. R.App. P. 9.140(c) (listing the orders from which the State may take an appeal). And the failure to review this type of case causes material harm to the State when a sexual offender is improperly relieved of the registration requirement. The State argues that the correct interpretation of the statute is necessary to ensure uniform application of the law. We conclude that the jurisdictional requirement is satisfied.

With respect to whether the State has shown a departure from the essential requirements of law, this element, “alternatively referred to as a violation of clearly established law, can be shown by a misapplication of the plain language in a statute.” Id. (citing Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003)). The statute at issue here plainly states that the defendant shall be considered for removal from the registry only if the offender “[i]s not more than 4 years older than the victim of this violation.” § 943.04354(l)(c). Welch is more than four years older than the victim because he is four years, two months, and twenty days older than the victim. See State v. Marcel, 67 So.3d 1223, 1225 (Fla. 3d DCA 2011) (determining that the defendant did not meet the requirement of section 943.04354(l)(c) when he was four years, three months, and eight days older than the victim); State v. Samuels, 76 So.3d 1109, 1110 (Fla. 5th DCA 2011) (determining that the defendant did not meet the requirement of section 943.04354(l)(c) when he was four years, one month, and twenty-one days older than the victim).

We recognize that both Marcel and Samuels were decided after the circuit court made its ruling in this case. However, the court in Marcel stated that the dispute centered on the meaning of the phrase “not more than” in the statute. 67 So.3d at 1224. The statute expressly applies “to persons ‘not more than 4 years older than the victim.’ ” Id. at 1225. The court stated that “[t]he phrase is uncomplicated, and no canons of construction are necessary to its interpretation.” Id. The court determined that Marcel’s interpretation “contravene[d] the plain language of the statute.” Id.

Because Welch is more than four years older than the victim, the circuit court departed from the essential requirements of the law in granting Welch’s petition to remove the requirement to register as a sexual offender. Therefore, we grant the petition for writ of certiorari and quash the circuit court’s order.

Petition granted and order quashed.

WHATLEY, J., Concurs.

MORRIS, J., Concurs specially.

MORRIS, J.,

Concurring.

A plain reading of section 943.04354(l)(c), Florida Statutes (2010), and the Florida Supreme Court’s decision in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), leave us no choice but to reach the decision we have in this case.

This case profoundly illustrates the manifest injustice which can result when a statute has rigid criteria that prevents a trial judge from exercising reasonable discretion. Judge Stargel, the trial judge in this case, attempted to exercise such discretion in the application of this statute. The facts of this case cry out for the result he reached. Regrettably, the requirements of the law do not permit us to support his decision.

Is there a societal interest in prohibiting an eighteen-year-old boyfriend and fourteen-year-old girlfriend from having consensual sexual relations? The answer to that question is obvious; of course there is. Mr. Welch should be punished for this behavior, and he was. However, is it really the will of the people to label the eighteen-year-old in this situation a sex offender for life? Is Mr. Welch who we really think of when we contemplate the definition of what a sex offender is or should be? I doubt most people would include him in this category.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alan McCLEESE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2822.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Rehearing Denied Aug. 28, 2012.
    Alan McCleese, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Shiflet v. State, 50 So.3d 1153 (Fla. 4th DCA 2010); Mercado v. State, 13 So.3d 1112 (Fla. 3d DCA 2009).

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    QUEST DIAGNOSTICS INCORPORATED, a Delaware Corporation, and Quest Diagnostics Clinical Laboratories, Inc., a Delaware Corporation, Petitioners, v. Jeffrey R. SWATERS, Respondent.
    No. 4D12-1183.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Aug. 16, 2012.

      John M. Mullin of Tripp Scott, P.A., Fort Lauderdale, and D. Faye Caldwell of Caldwell Everson, PLLC, Houston, TX, for petitioners.
    Michael J. Ferrin, West Palm Beach, for respondent.
   PER CURIAM.

Petitioners, Quest Diagnostics, Inc. (QDI) and Quest Diagnostics Clinical Laboratories, Inc. (QDCL), seek certiorari or prohibition relief following a trial court order granting respondent Jeffrey R. Swa-ters’s (Swaters) motion to compel production of his urine specimen. For the reasons below, we grant the petition as one seeking a writ of certiorari, quash the order and return the case to the trial court for further proceedings.

Swaters was employed as a commercial airline pilot with Spirit Airlines. In 2007, he was selected by his employer to submit to random drug and alcohol testing. He was directed to appear at Occupational Health Care of Florida, Inc., d/b/a Concen-tra Medical Centers (Concentra) for urine testing. The urine specimen was sent to QDI. In February, 2007, an employee of QDI took the specimen to Atlanta, Georgia for analysis. It tested positive for controlled substances. Swaters denied using drugs and requested a “split sample” of his urine specimen to be submitted for testing at another facility. It was sent by Quest to Diagnostic Services, Inc. (DSI). DSI reported the same results as Quest had.

After administrative hearings, an administrative law judge made findings which led to the revocation of Swaters’ pilot license. He appealed, but the National Transportation Safety Board (NTSB) affirmed. He appealed its decision to the Eleventh Circuit Court of Appeals, which upheld the Board’s decision. Swaters v. Osmus, 568 F.3d 1315 (11th Cir.2009).

Swaters filed a Florida state law negligence lawsuit against Concentra in February 2010, alleging that Concentra was negligent in the manner it collected the urine specimen. Neither QDI nor QDCL is a party in that lawsuit. QDI is a foreign corporation incorporated in Delaware with its principal place of business in Madison, New Jersey. QDCL, a wholly-owned subsidiary of QDI, is a foreign corporation incorporated in Delaware with its principal place of business in New Jersey as well.

According to petitioners, QDCL’s Georgia laboratory tested Bottle A of Swaters’s urine specimen and it possesses the remaining portion of that specimen. Swa-ters seeks this bottle for DNA testing. He served a subpoena on QDI seeking the urine specimen, by serving its resident agent in Tallahassee. He also served a subpoena on QDCL by serving its registered agent.

QDI responded by a letter from counsel stating that Swaters had served the wrong entity and that QDI did not possess the specimen. Also, QDI advised that its subsidiary QDCL could not release the specimen it had without written consent from the Department of Transportation (DOT). Petitioners allege that QDI contacted the DOT about Swaters’ request and the DOT responded that it would not consent to release of the specimen. As well, QDI said in its letter that the Florida subpoena was not properly served on it. In order to obtain subpoena power over QDCL, Swa-ters would need to domesticate his Florida subpoena in a Georgia court and then serve that subpoena on QDCL at its Georgia location.

Swaters moved to compel production from the two non-parties. QDI and QDCL filed a response in court, this time arguing that Swaters had not obtained jurisdiction over either corporation because neither was subject to Florida subpoena power or the Florida long-arm statute. They also argued that Swaters’ request violated and was preempted by federal law, particularly the Federal Omnibus Transportation Employee Testing Act (FOTETA) and DOT regulations. Finally, they argued that QDI, parent company of QDCL, did not even have possession or control of the urine specimen. The trial court heard argument on the motion to compel and granted it in the order now on review.

Certiorari ordinarily is the extraordinary writ available to challenge an order compelling discovery if the petitioners can demonstrate a departure from the essential requirements of law resulting in material harm of an irreparable nature. See generally Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996); see also McEnany v. Ryan, 44 So.3d 245 (Fla. 4th DCA 2010). The order on review compels production by non-parties in this cause, such that ■ there is no adequate remedy available to them by appeal. This leaves the question of whether the trial court order constitutes a departure from the essential requirements of law resulting in material harm. We find that it does for the reasons below.

The order compels the production of a urine specimen which is protected from production absent DOT authorization under several sections of the Code of Federal Regulations. 49 CFR § 40.13(c) provides:

(c) Except as provided in paragraph (d) of this section, you must not perform any tests on DOT urine or breath specimens other than those specifically authorized by this part or DOT agency regulations. For example, you may not test a DOT urine specimen for additional drugs, and a laboratory is prohibited from making a DOT urine specimen available for a DNA test or other types of specimen identity testing.

Paragraph (d), cited as the exception above, provides:

(d) The single exception to paragraph (c) of this section is when a DOT drug test collection is conducted as part of a physical examination required by DOT agency regulations. It is permissible to conduct required medical tests related to this physical examination (e.g., for glucosé) on any urine remaining in the colléction container after the drug test urine specimens have been sealed into the specimen bottles.
49 CFR § 40.331(f) provides:
§ 40.331 To what additional parties must employers and service agents release information?
As an employer or service agent you must release information under the following circumstances:
(f) Except as otherwise provided in this part, as a laboratory you must’ not release or provide a specimen or a part of a specimen to a requesting party, without first obtaining written consent from ODAPC. If a party seeks a court order directing you to release a specimen or part of a specimen contrary to any provision of this part, you must take necessary legal steps to contest the issuance of the order (e.g., seek to quash a subpoena, citing the requirements of § 40.13). This part does not require you to disobey a court order, however.

ODAPC is the DOT’S Office of Drug and Alcohol Policy & Compliance.

As well, 49 CFR § 40.81(c) and (d) provide:

§ 40.81 What laboratories may be used for DOT drug testing?
(c) As a laboratory participating in the DOT drug testing program, you must comply with the requirements of this part. You must also comply with all applicable requirements of HHS in testing DOT specimens, whether or not the HHS requirements are explicitly stated in this part.
(d) If DOT determines that you are in noncompliance with this part, you could be subject to PIE proceedings under Subpart R of this part. If the Department issues a PIE with respect to you, you are ineligible to participate in the DOT drug testing program even if you continue to meet the requirements of paragraph (a) or (b) of this section.

Swaters argues that a state law negligence claim is not preempted by federal regulations, but that is not the issue. The issue for the trial court here was whether QDI and QDCL can be ordered to produce the urine specimen to Swaters for DNA testing in the pending state law negligence case when the federal regulations prohibit it absent DOT authorization.

Swaters argues that to interpret the regulations to allow the restriction to remain in perpetuity would be inconsistent with the purpose and intent of the regulations, which is to provide a uniform system for drug testing transportation employees. For support, Swaters cites 49 CFR § 40.99, which provides:

§ 40.99 How long does the laboratory retain specimens after testing?
(a) As a laboratory testing the primary specimen, you must retain a specimen that was reported with positive, adulterated, substituted, or invalid results for a minimum of one year.
(b) You must keep such a specimen in secure, long-term, frozen storage in accordance with HHS requirements.
(c) Within the one-year period, the MRO, the employee, the employer, or a DOT agency may request in writing that you retain a specimen for an additional period of time (e.g., for the purpose of preserving evidence for litigation or a safety investigation). If you receive such a request, you must comply with it. If you do not receive such a request, you may discard the specimen at the end of the year.
(d) If you have not sent the split specimen to another laboratory for testing, you must retain the split specimen for an employee’s test for the same period of time that you retain the primary specimen and under the same storage conditions.
(e) As the laboratory testing the split specimen, you must meet the requirements of paragraphs (a) through (d) of this section with respect to the split specimen.

Swaters argues that this section entitles him to obtain the urine specimen because subsection (c) requires the tester to retain the specimen “for the purpose of preserving evidence for litigation” or other purposes. However, reading this section in para materia with the previous CFR sections does not overcome the requirement that the DOT consent to the release of the urine specimen by the lab. Swaters is not disputing petitioners’ assertion that this request for consent was denied.

We also conclude that Swaters’s attempted service of the subpoenas by service on petitioners’ registered agents was improper. Swaters argues that the subpoenas were properly served on petitioners, as they are foreign corporations which actively do business in Florida, are registered under Florida statutes to do business in Florida and have designated a resident agent for service on them. He cites for support General Motors Corp. v. State, 357 So.2d 1045, 1047 (Fla. 3d DCA 1978), but in that case the third district found that the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings did not apply where a subpoena sought production of documents only. See also CMI, Inc. v. Landrum, 64 So.3d 693, 695 (Fla. 2d DCA 2010), rev. denied, 54 So.3d 973 (Fla.2011); State v. Bastos, 985 So.2d 37, 39 (Fla. 3d DCA 2008). That would be the case here.

Here, even if this Uniform Law for criminal proceedings controlled this civil case, it would be inapplicable under this case law since the subpoenas sought production of a urine specimen only, not testimony of any witnesses.

In CMI, Inc. v. Ulloa, 73 So.3d 787 (Fla. 5th DCA 2011), rev. granted, No. SC11-2291, 2012 WL 1536796 (Fla. May 2, 2012), the fifth district held that the requirements of the Uniform Law applied to defendants in DUI prosecutions who sought to compel an out-of-state manufacturer to disclose a computer source code by serving a subpoena duces tecum on the manufacturer’s registered agent in Florida. The latter holding led the court to certify conflict with General Motors and Landrum. If this issue had to be resolved by application of this uniform law, it is thus apparent that the law is unsettled and before the Supreme Court of Florida.

We do not believe that this issue must be resolved by application of that authority, though, as this is not a criminal case or one relating to a criminal investigation or other proceeding. Florida and Georgia, among other states, have adopted uniform foreign depositions laws. In Florida, the Uniform Foreign Depositions Law (UFDL) is codified in section 92.251, Florida Statutes. Georgia has adopted the Uniform Foreign Depositions Act. O.C.G.A. §§ 24-10-110 to 112 (West 2011). It has been amended by 2012 Georgia Laws Act 643 (H.B. 46), amending Title 24 of the Official. Code of Georgia Annotated, but not all of the amendments appear to have taken effect at this time. The Georgia Civil Practice Act provides for subpoenas for deposition only, although a document request can be included. Georgia requires appointment of a commission and presentation of the commission to the clerk where the witnesses or documents are located before the subpoena can be issued. Rebecca B. Phalen, Obtaining Out-of-State Evidence for State Court Civil Litigation: Where to Start?, 17 Ga. Bar J., No. 2, 18 (Oct. 2011). For Swaters to subpoena records from petitioners, he would have to comply with the controlling provisions of those Georgia statutes. He has not done so.

Finally, we agree with petitioners that the trial court departed from the essential requirements of law insofar as it compelled QDI to produce the urine specimen sought by Swaters as QDI has advised that it does not possess it. We reject without further discussion respondent’s other arguments.

Petition Granted; Order Quashed; Cause returned to the trial court for proceedings consistent with this opinion.

GROSS, HAZOURI and CONNER, JJ., concur.

      . We decline to entertain this challenge as a petition for writ of prohibition in the altema-tive, as petitioners suggest.


text:
    PREMIER LAB SUPPLY, INC., Appellant, v. CHEMPLEX INDUSTRIES, INC., a New York corporation, Chemplex Industries, Inc., a Florida corporation, Appellees.
    No. 4D10-2045.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 4, 2012.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellant.
    William E. Davis and Laura Ganoza of Foley & Lardner, LLP, Miami, for appel-lees.
   PER CURIAM.

In this action for misappropriation of a trade secret, the issue presented is whether the trial court abused its discretion by failing to give the requested jury instruction on the time period applicable to measuring the actual loss component of appel-lee’s damages. Appellant requested that the jury be permitted to award actual loss damages only for the time period that the trade secret was entitled to protection as a trade secret, known as a “head-start period.” Appellant also appeals the trial court’s responses to questions posed by the jury during its deliberations. We find that the trial court did not err regarding the time period applicable to the measurement of appellee’s damages. We affirm on both issues.

On appellee’s claims against appellant, the court held separate trials on liability and damages. Following the liability trial, a jury found that appellee’s “spooling machine and its design were trade secrets” that appellant had misappropriated in 1999. Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 10 So.3d 202, 206 (Fla. 4th DCA 2009). This court determined that there was “sufficient evidence to support the jury’s finding.” Id. Following remand, the parties entered into a stipulation in lieu of injunction, whereby appellant agreed to cease using its misappropriated spooling machine as of August 8, 2007. On that date, appellant replaced its spooling machine with a “label machine” that has been publicly available since 2003.

Before the damages trial began, the trial court determined that appellant would be permitted to introduce evidence tending to prove that machines comparable to appel-lee’s spooling machine, and the components that made up the machine, were available in the marketplace. The trial court, however, determined that this evidence would apply only toward limiting the damages that appellee could recover for the amount that appellant was unjustly enriched. It would not apply toward limiting the actual losses sustained by appellee. The trial court reasoned that such evidence would allow appellant to misappropriate a trade secret, and then argue that appellee suffered no actual losses because appellant “could have gotten something equally advantageous ... the same day.”

Appellant sold “some of its thin film products” to buyers whom it “knew to be former or customers of’ appellee. Under one theory of appellee’s damages, appel-lee’s expert calculated appellee’s lost profits due to loss of thin film sales between 1999 and 2007. The expert found that appellee lost $262,913 in profits on sales of thin film products as a result of appellant’s sales to “common customers.” The expert’s other two theories pertained to profits made by appellant.

Appellant then presented testimony describing appellee’s spooling machine as “medium technology,” and explaining that one of its technological components was at least forty years old. Appellant’s expert testified that all of the machine’s design features could be purchased in the marketplace in 1999.

The trial court instructed the jury that a previous jury had determined that appellant misappropriated appellee’s spooling machine and its design, and utilized it to directly compete with appellee. As to damages, the jury was instructed that “Plaintiff must prove that Defendant used or disclosed Plaintiffs design of the res-pooling machine in a way that injured or damaged Plaintiff causing an actual monetary loss.” The jury was also instructed that it may award damages if it determined that appellant was unjustly enriched, provided that the amounts awarded for unjust enrichment were not taken into account in computing appellee’s actual losses.

“Actual loss” was defined as “loss of profits, lost customers or lost market share to the owner of the trade secret caused by the misappropriation.” A jury instruction defined “[ujnjust enrichment” as “the recovery of the full total of Defendant’s profits or apportioned amount designed to correspond to the actual contribution the Plaintiffs trade secret made to Defendant’s commercial success caused by the misappropriation.”

Another instruction was titled “Accounting Period.” The “accounting period” applied only to unjust enrichment damages, not actual losses. The court instructed the jury that, with respect to calculating the amount of unjust enrichment, the jury should award damages only for the period of time the trade secret remained a trade secret. In determining this period, the jury was permitted to consider the available technology and resources available to appellant in the period immediately following the misappropriation. Appellant had unsuccessfully requested that this instruction also apply to the jury’s calculation of the actual loss period.

During its deliberations, the jury sent a note back to the trial court containing a compound question. The jury asked, “Are we allowed to consider whether or not we believe it is a ‘trade secret’ or are we allowed to consider this morning’s witness’ testimony that the technology is and was commonly available.” Appellant requested the court to respond that the jury was free to find that the spooling machine ceased to be a trade secret at a point after the time of the 1999 misappropriation. The court denied this request, and answered “no” to the first part of this question. As to the second part, the court responded “yes” and referred the jury to the instructions on “unjust enrichment” and “accounting period.”

The jury found that appellee had suffered an actual loss caused by appellant’s misappropriation of its trade secret in the amount of $196,500. This actual loss was found to have accrued from 1999 through 2007. The jury further found that appellant had been unjustly enriched by $100,000 and that the unjust enrichment began to accrue in 1999, but ceased to accrue in 2003. This appeal ensues.

“A trial court is accorded broad discretion in formulating appropriate jury instructions and its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999). A party asserting that it was entitled to a particular jury instruction must demonstrate that “(1) the requested instruction accurately states the law applicable to the facts of the case; (2) the testimony and other evidence presented support the giving of the instruction; and (3) the instruction was necessary to resolve the issues in the case properly.” McConnell v. Union Carbide Corp., 937 So.2d 148, 152-53 (Fla. 4th DCA 2006) (citation omitted) (noting also that it is “more accurate” to review “giving or refusing jury- instructions .... under a mixed standard of de novo and abuse of discretion”).

In an action for misappropriation of a trade secret, “[djamages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.” § 688.004(1), Fla. Stat. (2007). In such actions, “when some damage is proven and ‘the uncertainty lies only in the amount of damages, recovery may be had if there is proof of a reasonable basis from which the amount can be inferred or approximated.’ ” Perdue Farms Inc. v. Hook, 777 So.2d 1047, 1051 (Fla. 2d DCA 2001) (citation omitted). A plaintiffs burden of proof as to damages caused by the misappropriation is “liberal” and is satisfied “by showing the misappropriation, the subsequent commercial use, and ... evidence by which the jury can value the rights the defendant has obtained.” Id. at 1052 (citation omitted).

In the present case, appellant contends that the trial court erred by refusing to provide the jury with guidance as to the time period applicable to measuring appellee’s actual losses. According to appellant, the applicable period was the period that information concerning how to construct appellee’s spooling machine remained unavailable to appellant, absent appellant’s misappropriation. This period, sometimes called a “head-start period,” can be defined as “the amount of time it would have taken [appellant] to independently develop its product without the benefit of [appellee’s] trade secrets.” Sensormatic Elec. Corp. v. TAG Co. US, 632 F.Supp.2d 1147, 1187 (S.D.Fla.2008). We find that the trial court did not err in denying the requested instruction in that “actual loss caused by misappropriation” under Florida’s Uniform Trade Secrets Act does not require the temporal limitation requested.

We first note that section 688.003(1), Florida Statutes, which allows for a plaintiff in a misappropriation of trade secrets case to obtain injunctive relief, provides that, in general, “an injunction shall be terminated when the trade secret has ceased to exist.” Section 688.004, Florida Statutes, does not require that this period be applied to limit a trade secret plaintiffs actual losses. Instead, section 688.004 requires causation between the actual losses and the misappropriation.

In finding this distinction significant, we are persuaded by the case of RRK Holding Co. v. Sears, Roebuck & Co., 563 F.Supp.2d 832, 836 (N.D.Ill.2008). In RRK Holding, the defendant argued that the plaintiff “failed to limit its damages claims to the time necessary to reverse engineer its trade secret product, i.e., the ‘head start’ period.” Id. The jury instruction at issue read, as here, “damages can include Plaintiffs actual loss caused by Defendant’s misappropriation and the unjust enrichment caused by the misappropriation that is not taken into account in computing Plaintiffs actual loss.” Id. The court stated that “[w]hile Illinois case law requires damages be limited to a head start period for injunctive relief, it has not made such a requirement for monetary damages. The law does not support Defendant’s contention.” Id. (citations omitted).

Rather, “[c]ourts have recognized that a plaintiffs actual damages can be measured by the value of the loss of the secret to the plaintiff under the circumstances.” CardioVention, Inc. v. Medtronic, Inc., 483 F.Supp.2d 830, 846 (D.Minn.2007). In the present case, the trial court defined “actual loss” as “loss of profits, lost customers or lost market share to the owner of the trade secret caused by the misappropriation.” We do not find any abuse of discretion in this definition. For example, “lost profits based on a market share is an acceptable approach of demonstrating the causal relationship between misappropriation and lost profits.” Agilent Techs., 2010 WL 610725, at *28. See also Univ. Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 536 (5th Cir.1974) (lost sales may be a “helpful approach” if a “specific injury to the plaintiff can be established”). In this case, the jury was presented with detailed expert testimony and documentary evidence to assist it in determining which of appellee’s actual losses were caused by appellant’s misappropriation of the spooling machine’s design, including estimations of appellee’s lost profits from appellant’s sales to common customers. We conclude that it was within the domain of the finder of fact to determine whether the misappropriation caused actual losses to appellee through August 3, 2007, the date appellant ceased using its spooling machine.

We also find no error in the court’s responses to the jury’s questions during its deliberations. Because a previous jury had determined that the design of the spooling machine was a trade secret of appellee, the trial court did not abuse its discretion when it responded “no” to the jury’s question asking if it could consider whether “it is a ‘trade secret.’ ” As to the jury’s question inquiring if it could consider the testimony that the technology required to build the spooling machine “is and was commonly available,” the trial court directed the jury to the definition of “unjust enrichment” and the “accounting period” instruction. This response was consistent with our interpretation of section 688.004, Florida Statutes.

In summation, a plaintiffs actual losses in a misappropriation of trade secrets case need only be “caused by” the misappropriation. § 688.004, Fla. Stat. Therefore, we find no abuse of discretion in the trial court’s denial of the requested instruction and responses to the jury’s questions.

Affirmed.

CIKLIN, GERBER and LEVINE, JJ., concur.

      . We also affirm as to appellant's two other issues on appeal without discussion.

      . The expert concluded that appellant made a profit of $189,149 on sales of products that appellee did not make but that appellant made and sold to common customers, and on appellant's sales to non-common customers. When the issue of common customers was eliminated, the expert found that appellant made a profit of $322,886 on sales of thin film products.

      . "Although the ‘head start period' is an acceptable way to limit the amount of damages available to a plaintiff in a trade secret misappropriation case, such a limitation is not mandatory.” Agilent Techs., Inc. v. Kirkland, C.A. No. 3512-VCS, 2010 WL 610725, at *27 (Del.Ch. Feb. 18, 2010).

      . Neither appellant nor appellee challenges the application of a "head-start period” to limit the unjust enrichment component of ap-pellee’s damages.

      . See also Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 385 N.E.2d 1349, 1357 n. 11 (1979) (noting that "applying a 'head start rule’ in assessing damages in this action ... is improper”); Russo v. Ballard Med. Prods., 550 F.3d 1004, 1020 (10th Cir.2008) (finding, even "assuming Utah embraces the [head-start] rule,” "no reversible error in the district court’s jury instructions” where, as it pertained to unjust enrichment, defendant was free to argue that the benefit to it was limited "by the time period in which the misappropriation afforded the company a head start to market”).


text:
    UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, Petitioner, v. Marcia CHERNICK, as Sole Beneficiary and Trustee of the Murray Chernick Trust, Respondent.
    No. 4D12-582.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Aug. 16, 2012.
    Ali A. Kadir of Groelle & Salmon, P.A., Wellington, for petitioner.
    Michael J. Higer, Valorie S. Chavin, Esther S. Meisels and Christopher J. Mar-anges of Higer Lichter & Givner, LLP, Aventura, for respondent.
   PER CURIAM.

In this certiorari proceeding, United Property and Casualty Insurance Company (United) seeks review of a non-final order which denied its motion to dismiss count II of the insured plaintiffs amended complaint, a claim for breach of a common law implied covenant of good faith and fair dealing. We grant the petition.

United argued (1) count II failed to state a cause of action because there is no common law duty to act in good faith regarding first-party insurance claims, only a statutory remedy created by section 624.155, Florida Statutes, and the insured should not be allowed to circumvent the statutory requirements of a bad-faith action by calling it a breach of the implied covenant of good faith and fair dealing; and (2) even if the court were to allow the common law action, count II still should be dismissed without prejudice pending resolution of the underlying coverage issue because the statutory claim accrues only after the insured proves liability and the extent of damages in the underlying breach of contract claim, see, e.g., Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991); State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010).

When it denied United’s motion, the trial court did not have the benefit of QBE Insurance Corp. v. Chalfonte Condominium Apartment Ass’n, 94 So.3d 541 (Fla.2012), in which the Florida Supreme Court answered several questions certified to it by the federal Eleventh Circuit on questions of Florida law in connection with a similar case.

The first two certified questions were the following:

1. Does Florida law recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time?
2. If Florida law recognizes a claim for breach of the implied warranty of good faith and fair dealing based on an insurer’s failure to investigate and assess its insured’s claim within a reasonable period of time, is the good faith and fair dealing claim subject to the same bifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155?

94 So.3d at 545. The Florida Supreme Court answered the first question in the negative; after reviewing case law and legislative history, it declared, “it is clear that there is no common law first-party bad-faith action in Florida,” id. at 547, and concluded that “such first-party claims are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes.” Id. at 549. That rendered the second question moot. Id.

The supreme court’s conclusions are in accordance with United’s arguments below and to this court. Accordingly, we quash the order on review and direct the trial court, on return of the case, to reconsider United’s motion in light of QBE Insurance Corp. v. Chalfonte Condominium Apartment Ass’n, 94 So.3d 541 (Fla.2012).

Petition Granted.

WARNER, STEVENSON and GROSS, JJ., concur.

      . See Art. V, § 3(b)(6), Fla. Const.; Fla. R.App. P. 9.030(a)(2)(C) & 9.150.


author: CIKLIN, J.

text:
    Michelle TERRIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-487.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Antony P. Ryan, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Michelle Terrien was tried and convicted for (1) introduction of contraband into a state correctional institution and (2) conspiracy to introduce contraband into a state correctional institution. On appeal, she argues that the trial court fundamentally erred when it instructed the jury on an alternative theory for committing the first offense which was not alleged in the charging document. We agree and therefore reverse Terrien’s conviction for introduction of contraband into a state correctional institution.

On March 25, 2009, the state charged Terrien with, among other crimes, introduction of contraband into a state correctional institution, in violation of section 944.47, Florida Statutes (2008). The information specifically alleged that Terrien “did unlawfully introduce into or upon the grounds of a state correctional institution, U.S. CURRENCY, or take or attempt to take or send or attempt to send therefrom, U.S. CURRENCY, a contraband article.”

At the conclusion of the trial, the jury was instructed that for introduction of contraband into a state correctional institution, the state had to prove either that Terrien “introduced contraband into or upon the grounds of, and/or knowingly possessed contraband in or upon the grounds of a state correctional institution.” No objection was directed at these instructions. The jury found Terrien guilty of introduction of contraband into a state correctional institution, as charged in the information. Terrien now appeals this conviction.

“A trial court’s decision regarding jury instructions is reviewed under the abuse of discretion standard.” Bozeman v. State, 931 So.2d 1006, 1008 (Fla. 4th DCA 2006). Because Terrien did not object to the jury instructions, any error regarding them was not preserved for appeal unless we find that the error was fundamental. Dempsey v. State, 72 So.3d 258, 261 (Fla. 4th DCA 2011). Whether an error is fundamental is a de novo determination. See Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010) (“This Court reviews a defendant’s unpreserved claim that a trial court committed fundamental error de novo”).

This case is controlled by a simple rule: “[I]t is fundamental error to instruct the jury on an uncharged alternate theory of an offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory.” Beasley v. State, 971 So.2d 228, 230 (Fla. 4th DCA 2008).

Section 944.47 provides multiple, distinct methods to commit the offense of introducing contraband into a state correctional institution:

(l)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of [a list of enumerated] articles which are hereby declared to be contraband for the purposes of this section....
(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

§ 944.47, Fla. Stat. (2008) (emphasis added).

The state charged Terrien by information with “introduc[ing] into or upon the grounds of a state correctional institution, U.S. CURRENCY, or tak[ing] or attempt[ing] to take or sending] or attempting] to send therefrom, U.S. CURRENCY, a contraband article.” This language tracks squarely with section 944.47(l)(a). Thus, Terrien was accused of committing the charged offense under section 944.47(l)(a). The information did not accuse Terrien of possessing contraband inside a state correctional institution, found under section 944.47(l)(c).

However, the trial court instructed the jury on both 944.47(l)(a) and (l)(c). These instructions constituted fundamental error because the jury was instructed on a method of committing the offense which was not charged in the information, and based on the evidence and arguments presented at trial, we cannot say that the uncharged method was not at issue in this case.

Therefore, we reverse Terrien’s conviction for introduction of contraband into a state correctional institution, and remand for a new trial, should the state choose to pursue one. We affirm Terrien’s conviction for conspiracy to introduce contraband into a state correctional institution.

Reversed and remanded in part; affirmed in part.

TAYLOR and GERBER, JJ., concur.

      . Terrien also argues that her inculpatory statements to law enforcement should not have been admitted because the waiver of her Miranda rights was not voluntary. Having reviewed the record carefully, we find no merit to this argument and do not discuss it further.

      . We note that Terrien has already served the entirety of her one-year jail sentence for the conviction we are now setting aside. As such, should the state successfully pursue a new trial against Terrien, the trial court would not be permitted to resentence her to any more time than she has already served, as her sentence has been completed. See Maybin v. State, 884 So.2d 1174, 1175 (Fla. 2d DCA 2004) ("Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.”); cf. Harris v. State, 645 So.2d 386, 388 (Fla.1994) ("Like the United States Supreme Court, we find that the Double Jeopardy Clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence." (emphasis added)).


text:
    C.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-941.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MAY, C.J., DAMOORGIAN, J., and TUTER, JACK, B., Jr., Associate Judge, concur.


text:
    J.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-112.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MAY, C.J., DAMOORGIAN, J„ TUTER, JACK, Associate Judge.


text:
    A.A.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4910.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MAY, C.J., DAMOORGIAN, J., TUTER, JACK, Associate Judge.


text:
    S.B., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4791.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MAY, C.J., DAMOORGIAN, J., and TUTER, JACK B., JR., Associate Judge, concur.


text:
    Darrell BAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2301.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Darrell Bain, Florida City, pro se.
    No appearance filed for appellee.
   PER CURIAM.

Affirmed. See Ross v. State, 82 So.3d 975 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Jose SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2295.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Robert G. Amsel of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    No brief required for appellee.
   PER CURIAM.

Affirmed. See Smith v. State, 85 So.3d 551 (Fla. 4th DCA 2012).

STEVENSON, TAYLOR and GERBER, JJ., concur.


text:
    Joseph J. STANGARONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1953.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.

      Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Appellant challenges the trial court’s denial of his motion to correct an illegal sentence. The trial court denied the motion, concluding that the sentence was neither illegal nor ambiguous. We affirm.

In his motion, appellant sought to clarify the authority for the permanent revocation of his driver’s license that occurred with his 1995 plea to felony driving under the influence, in violation of section 316.193(2)(b), Florida Statutes. Pursuant to the plea the trial court imposed a six month jail term and appellant understood that the maximum penalties included a $1,000 fíne, court costs, adjudication, and a “life D/L suspension.” The order added that “[i]n imposing the above sentence, the court further orders Drivers License revoked for Life.” The “lifetime” revocation is the subject of appellant’s motion, which the trial court denied, concluding correctly that the sentence was neither illegal nor ambiguous.

Prompting appellant’s motion is the fact that effective October 1, 2010, a person subject to permanent revocation for having four or more DUIs may apply for a permit after five years. See § 322.271(5), Fla. Stat. (2010). Appellant alleges that the DMV is construing his sentencing documents in a way that imposes a continuing penalty on him such that he is not eligible to apply for a permit, even if he can meet the requirements for the DMV’s discretionary exercise. Appellant argues that the revocation was not the result of the mandatory provisions of section 322.28(2)(e), but rather under the broad and discretionary language of section 316.655(2), which would allow the DMV to consider his application.

Appellant’s claim is not properly a rule 3.800(a) challenge to an illegal sentence. See, e.g., Auger v. State, 725 So.2d 1178, 1179 (Fla. 2d DCA 1998) (lifetime revocation could not be considered illegal sentence; although statute authorized three-year license revocation for DUI manslaughter, revocation was administrative in nature and not part of sentence); McDaniel v. State, 683 So.2d 597, 598-99 (Fla. 2d DCA 1996) (permanent revocation of a defendant’s driving privileges is not considered a criminal punishment, but rather an administrative detail supplementary to the judicial function).

We therefore affirm, without prejudice to appellant bringing any administrative claims he may have. We note that in his brief he also raised a conflict between the oral pronouncement and the written sentence. Because this was not raised in the trial court, we do not consider it on appeal.

WARNER, DAMOORGIAN and GERBER, JJ., concur.


text:
    Tommy Eugene HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1743.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MAY, C.J., DAMOORGIAN, J., and TUTER, JACK, B., JR., Associate Judge, concur.


text:
    Joshua Lee MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2206.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2012.
    Joshua Lee Maddox, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J., LEWIS and ROWE, JJ., concur.


text:
    Matthew SPEIGHTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1995.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2012.
    Matthew Speights, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Sade Marie DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5383.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


author: THOMAS, J.

text:
    Wendall HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-899.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.

      Wendall Hall, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the trial court’s order dismissing his “Petition for Writ of Habeas Corpus” in which he asserted his convictions of both burglary with battery and sexual battery violated the prohibition against double jeopardy. Appellant contends the court erred by dismissing the petition without conducting an evidentiary hearing. On the merits, we affirm the trial court’s order in its entirety. We write only to address the frivolous nature of this appeal and the grounds for directing that a certified copy of this opinion be forwarded to the appropriate correctional institution, as provided by section 944.279, Florida Statutes, which states: “A prisoner who is found by a court to have brought a frivolous ... claim, proceeding, or appeal in any court of this state ... is subject to disciplinary procedures pursuant to the rules of the Department of Corrections.” § 944.279(1), Fla. Stat. In addition, we direct that Appellant be prohibited from filing any additional pleadings in this court unless signed by a member of the Florida Bar.

We note that this is not Appellant’s first foray into this court on this case. He has filed a total of seven appeals in this matter, three of which concerned the postconviction motions addressed in the trial court’s order. Furthermore, our review of the docket shows that Appellant has also filed twelve appeals with this court addressing his convictions for crimes in another case. In virtually every instance, the appeal was, as here, filed pro se. Appellant’s actions have thus absorbed an inordinate amount of judicial resources with repeated motions and appeals that have in almost every instance proved meritless. Such a waste of limited judicial resources serves no purpose other than to delay resolution of meritorious claims brought by others.

Even disregarding Appellant’s continual abuse of the judicial system, however, we are authorized to sanction an abusive inmate litigant, regardless of his prior judicial history. See, e.g., Johnson v. State, 44 So.3d 198, 200 (Fla. 4th DCA 2010) (holding a claim need not be repetitive to be frivolous or to be an abuse of the postconviction process).

Here, the trial court commendably took the time and effort to write an extensive order explaining the reasons why Appellant’s petition was meritless. One of these reasons was that Appellant had already filed a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850, alleging the same double jeopardy ground upon which his petition was based. That motion was dismissed as untimely, and this court affirmed that order in Hall v. State, 67 So.3d 203 (Fla. 1st DCA 2011).

As the trial court correctly found, Appellant could show no reason why he could not have been aware of any alleged basis for a double jeopardy claim either at the time of his direct appeal of his conviction and sentence, or within the time allowed for filing a postconviction motion pursuant to rule 3.850. The court also explained that Appellant could not simply “select[ ] a new title for his pleadings requesting postconviction relief’ in an effort to evade these time restrictions or the prohibition against successive and untimely motions. “Untimely post-conviction challenges, which do not establish an exception to the two-year time limit, are abusive and sanctionable, and an appeal from the denial of an untimely claim is frivolous when no arguable basis for an exception to the time limitation exists.” Johnson, 44 So.3d at 200.

We also agree with the trial court that “[s]imply construing an alleged error as ‘manifest injustice’ does not relieve [Appellant] of the time bar contained in” rule 3.850. See Johnson, 44 So.3d at 200-01(“This post-conviction challenge was untimely, and a petition for writ of habeas corpus may not be used as a substitute for a rule 3.850 post-conviction motion. [Appellant’s] argument that the trial court failed to consider a “manifest injustice” exception in this case is entirely devoid of merit.”) (citing Fla. R.Crim. P. 3.850(h) and Baker v. State, 878 So.2d 1236, 1241 (Fla.2004)).

Meritless inmate filings like this can result in the litigant’s loss of gain-time. Pursuant to section 944.28(2)(a), Florida Statutes, “[a]ll or any part of the gain-time earned by a prisoner according to the provisions of law is subject to forfeiture if such prisoner ... is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court....”

This penalty is applicable to all of an inmate’s sentences. Section 944.28(2)(b) provides that “[a] prisoners right to earn gain-time during all or any part of the remainder of the sentence or sentences under which he or she is imprisoned may be declared forfeited because of the seriousness of a single instance of misconduct-” (Emphasis added.) Thus, a prisoner who files a frivolous appeal such as the one here runs the risk of impacting his gain-time not just as to the sentence applicable to the case in which the frivolous pleading was filed, but also as to any other sentences he may be serving.

Here, we know from our opinion in Hall v. State, 738 So.2d 374 (Fla. 1st DCA 1999), that just six weeks after committing the heinous crimes addressed in this appeal, Appellant committed additional violent offenses, including two counts of sexual battery. The record reflects that these subsequent charges were addressed in lower court case number 94-3077, and Appellant was sentenced for those charges prior to his sentence in the instant case. The record also shows that Appellant’s sentence in the instant case was to run consecutively to his sentence in case number 94-3077.

In addition to referring this matter to the Department of Corrections, we prohibit Appellant from filing any further pro se pleadings in this court. The trial court put Appellant on notice that if he files any future pro se motions it finds to be frivolous or repetitious, the court may issue an order to show cause why he should not be prohibited from filing any further pro se pleadings. Considering all of the factors in this matter, and after reviewing Appellant’s response to our order to show cause, we do not think such patience is warranted here.

Any pleadings or papers filed in this court regarding said convictions and sentence must be reviewed and signed by an attorney licensed to practice in this state. Accordingly, the clerk is directed not to accept any further pro se pleadings or filings from Appellant in this matter. And because Appellant has abused the postcon-viction process and filed a frivolous appeal in this court, we direct the clerk of this court to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures, which may include forfeiture of gain-time. See § 944.28(2)(a), Fla. Stat. (2009). See Griffin v. State, 962 So.2d 1026, 1027-28 (Fla. 3rd DCA 2007) (prohibiting appellant from filing further pro se pleadings after appellant filed repetitive pleadings making the same argument, and sending a certified copy of the opinion to the Department of Corrections pursuant to section 944.279, Florida Statutes, for consideration of sanctions pursuant to section 944.28, Florida Statutes).

AFFIRMED.

WOLF and LEWIS, JJ., concur.


author: GERBER, J.

text:
    Scott NIRK a/k/a Scott A. Nirk, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D11-4218.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Charles D. Barnard, Wilton Manors, for appellant.
    Robert R. Edwards of Law Offices of Marshall C. Watson, P.A., Fort Lauder-dale, for appellee.
   GERBER, J.

The defendant appeals the circuit court’s non-final order denying his amended motion to quash service of process. He argues that the court erred because the process server placed certain statutorily-required notations on only the copy of the summons served, and not on the copy of the complaint served. We disagree with the defendant’s argument. We hold that process servers must place the statutorily-required notations on only the copy of the summons served, and not on the copy of the complaint served. To the extent we inadvertently suggested to the contrary in Vidal v. SunTrust Bank, 41 So.3d 401 (Fla. 4th DCA 2010), and Kwong v. Countrywide Home Loans Servicing, L.P., 54 So.3d 1033 (Fla. 4th DCA 2011), we write to clarify those opinions accordingly.

We write this brief opinion in three parts. First, we analyze the two service of process statutes which are relevant here. Second, we review our previous opinions in Vidal and Kwong. Third, we clarify those opinions to- definitively articulate that a process server must place the statutorily-required notations on only the copy of the summons served, and not on the copy of the complaint served. In writing this opinion, our review is de novo. See Vidal, 41 So.3d at 402 (appellate court reviews de novo questions of law as to whether a party has complied with the statutes on service of process or whether service is defective and must be quashed).

Section 48.031(l)(a), Florida Statutes (2010), provides, in pertinent part:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

§ 48.031(l)(a), Fla. Stat. (2010) (emphases added). By section 48.031(l)(a)’s plain language above, the “copy of it ” refers to the previously-mentioned “original process,” that is, the summons, and not the later-mentioned “copy of the complaint.” See Hill v. Davis, 70 So.3d 572, 575-76 (Fla.2011) (“[I]f the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.”) (citations and quotations omitted).

Section 48.031(5), Florida Statutes (2010), provides: “A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process.” § 48.031(5), Fla. Stat. (2010) (emphasis added). Although section 48.031(5) does not expressly state whether its use of the terms “process” and “the copy served” refers to the summons, the complaint, or both, we conclude that section 48.031(5)’s use of the terms “process” and “the copy served” refers to only the summons and not the complaint. We reach this conclusion by reading section 48.031(5) in pari materia with section 48.031(l)(a). See Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla.2005) (“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.”) (citation omitted). As mentioned above, section 48.031(l)(a)’s plain language differentiates between “a copy of [original process],” i.e., the summons, and “a copy of the complaint.” Applying that differentiation to section 48.031(5), which refers to placing the required notations on the “copy served” of the “process,” i.e., the summons, we conclude that under section 48.031(5), a process server must place the required notations on only the copy of the summons, and not on the copy of the complaint.

We now turn to our previous opinions in Vidal and Kwong. In Vidal, the plaintiffs process server effected service on the defendant. We wrote that, in effecting such service, “[t]he process server placed his initials and the date of service on the copy delivered ... but did not record the time of service on the copy of the complaint.” 41 So.3d at 402. The defendant moved to quash service, arguing that service “was insufficient because the time of service was not noted on the complaint.” Id. The circuit court denied the motion. On the defendant’s appeal, we held that a process server’s failure to note the time of service on the process served rendered service defective. Id. In reaching this holding, however, we used the terms “complaint” and “summons” interchangeably instead of using only the proper term “summons.” Compare id. at 402 (“Because the requirement to note the time on a copy of the complaint is a statutory requirement of service, and strict compliance with statutory requirements of service is mandated, we conclude that failure to note the time of service renders the service defective.”), with id. at 403 (“Noting the time and date of service on the copy of the summons left with the person to be served does not insure that the defendant receives due process notice.”) (emphasis added).

In Kwong, where another defendant argued that service was insufficient because the process server “failed to note ... the time of service on the process served,” we agreed with the defendant’s argument and cited Vidal in support. Kwong, 54 So.3d at 1034. However, we did not define what we meant when we referred to “the process served.” We also did not address that, in Vidal, we used the terms “complaint” and “summons” interchangeably instead of using only the proper term “summons.”

We now clarify Vidal and Kwong to resolve any confusion which those opinions inadvertently may have created. We hold that under section 48.031(5), a process server must place the required notations on only the copy of the summons, and not on the copy of the complaint. To the extent in Vidal we used the terms “complaint” and “summons” interchangeably instead of using only the proper term “summons,” we clarify Vidal to refer to only the proper term “summons.” To the extent Kwong relied on Vidal, we clarify Kwong accordingly.

Turning to the merits of this case, because the process server here placed “the date and time of service and his or her identification number and initials” on the copy of the summons served, the process server satisfied section 48.031(5). Thus, the circuit court properly denied the defendant’s amended motion to quash service.

Affirmed.

TAYLOR and CIKLIN, JJ., concur.

      . In 2011, the Florida Legislature amended section 48.031(5) as follows: "A person serving process shall place, on the first page of at least one of the processes served, the date and time of service and his or her identification number and, initials for all service of process.” § 48.031(5), Fla. Stat. (2011) (emphasis indicating amendment). This amendment is not relevant to our foregoing opinion.


text:
    Timothy WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2204.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2012.
    Timothy Walker, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


text:
    William H. RINGWOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3016.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


text:
    Mark C. TELLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1022.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    Mark C. Telles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


text:
    Felix MASCARRO, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D12-2397.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    Felix Mascarro, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


text:
    Mark R. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3429.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    Mark R. Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


text:
    William BROWNING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3494.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    William Browning, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


author: COHEN, J.

text:
    Mark MILES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2639.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Mark Miles was charged with domestic battery by strangulation, battery as an act of domestic violence, and violation of condition of release. Following a jury trial, Miles was convicted of battery as an act of domestic violence, as well as the lesser included offense of simple battery on the battery by strangulation count. As he did below, on appeal Miles argues the two convictions violate double jeopardy principles. We agree.

Miles was romantically involved with the victim, living with her in her apartment. When the relationship deteriorated, the victim requested Miles move out. To help facilitate the move, the victim loaned Miles her car and debit card. Instead of moving out, Miles purchased beer, and when the victim returned home, she found Miles watching television and drinking. A heated discussion ensued, during which Miles pushed the victim down onto a couch. She testified Miles grabbed her face and ultimately placed a pillow over it, making breathing difficult, before he placed his hands around her neck. The victim was able to extract herself from Miles’ assault, whereupon he left the apartment. Following the issuance of a warrant, Miles was arrested and charged.

In analyzing the double jeopardy claim, this Court must first determine whether the batteries were part of a separate episode or transaction. If so, double jeopardy is not an issue. To determine whether an offense occurred during the same criminal transaction, courts examine “whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between the offenses.” Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002). In its brief, the State concedes the batteries occurred during the same criminal transaction.

Next, we look to section 775.021(4)(a), Florida Statutes (2011), to determine whether separate sentences are authorized for each of the battery convictions. That statute provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

§ 775.021(4)(a), Fla. Stat. For offenses that satisfy this test, multiple punishments are allowed unless one of three exceptions applies:

1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat.

In this case, Miles was convicted of two counts of the same statute — section 784.03(l)(a), Florida Statutes. Clearly, the two batteries require identical elements of proof. Citing State v. Meshell, 2 So.3d 132 (Fla.2009), the State attempts to analogize the conduct in the instant case to multiple violations of the sexual battery statute, “where, during the course of one episode without a temporal break, the same victim is subjected to oral, anal, digital and vaginal penetration.” The State postulates Miles was similarly subject to multiple convictions for each part of the victim’s body he battered. We find this argument to be without merit. The sexual battery statute proscribes very specific conduct which can be committed in a number of specified ways. The battery statute has no such similar language. The Legislature does not separately criminalize the unlawful touching of one’s face, separate and apart from one’s torso. The victim in this case suffered injuries to her face, neck, arms, and ankle. Under the State’s theory, Miles was subject to prosecution for each. That argument defies logic; more importantly, it is not supported by the legislative enactment of the battery statute. Accordingly, we reverse and remand to the trial court to vacate one of the convictions.

REVERSED AND REMANDED.

PALMER and TORPY, JJ., concur.

      . § 784.041(2)(a), Fla. Stat. (2010).

      . Although the information charged Miles with "Battety-Domestic Violence,” it references section 784.03(l)(a), Florida Statutes (2010) — the battery statute — as well as provisions within the marriage and domestic violence chapter of the Florida Statutes.

      . § 741.29(6), Fla. Stat. (2010). On the morning of trial, however, the State entered a nolle prosequi on the violation of condition of release charge.

      . Miles’ claim of self-defense was rejected by the jury.


text:
    Tyrone SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3958.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, and Nora Hall, Certified Legal Intern, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Following a jury trial, Tyrone Sims was convicted of attempted second-degree murder, robbery with a firearm, aggravated battery with a firearm, and possession of a firearm by a convicted felon. We affirm each of the convictions with the exception of attempted second-degree murder. The jury instruction on the lesser offense of attempted voluntary manslaughter was erroneous and, under State v. Montgomery, 39 So.3d 252 (Fla.2010), requires reversal. See also Roundtree v. State, 77 So.3d 846 (Fla. 5th DCA 2012); Cannon v. State, 77 So.3d 684 (Fla. 5th DCA 2011); Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011). As we have done previously, we certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010).

AFFIRMED in part; REVERSED in part and REMANDED, CONFLICT CERTIFIED.

PALMER, TORPY and COHEN, JJ., concur.


text:
    Raymond L. CORNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1387.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    Raymond Cornett, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The appellant, Raymond Cornett, timely seeks review of the trial court’s summary denial of his 3.85Ó motion. The appellant entered an open plea of nolo contendere to eight charges. On the first of these charges, appellant was sentenced to a period of twenty years’ probation with a special condition requiring that the' first ten years be served in the Department of Corrections (“DOC”) as a minimum mandatory. He was sentenced to three years’ DOC on the remaining charges, all to run concurrent. The appellant raises numerous issues in his 3.850 motion, one of which requires remand.

The appellant contends that his trial counsel failed to advise him of the minimum mandatory sentence he was facing as a result of the charges against him. The State correctly concedes that the attachments to the plea agreement, plea colloquy, and portions of the sentencing transcript to the trial court’s order do not refute appellant’s allegations in this regard. As a result, the matter is remanded back to the trial court to either attach further portions of the record supporting its ruling or hold an evidentiary hearing on the matter. See Edwards v. State, 888 So.2d 153 (Fla. 5th DCA 2004). We note that if the appellant is allowed to withdraw his plea and proceed to trial, he faces the possibility of a life sentence, which is clearly harsher than the minimum sentence he is currently serving. See Guajardo v. State, 1 So.3d 406, 407 (Fla. 2d DCA 2009).

REVERSED and REMANDED for further proceedings consistent with this opinion.

ORFINGER, C.J., SAWAYA, and JACOBUS, JJ., concur.


text:
    Curtis Eugene CHANCEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1960.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.
    Curtis E. Chancey, Ocala, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The State properly concedes that reversal of the trial court’s summary denial of Chancey’s Rule 3.850 motion is required because of the failure of the trial court to attach the necessary portions of the record to support denial. On remand, the trial court must either attach those portions of the record conclusively refuting Chancey’s claim, or hold an evidentiary hearing.

REVERSED and REMANDED.

EVANDER, COHEN and JACOBUS, JJ., concur.


author: JACOBUS, J.

text:
    Robert Fred WOODALL, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-209.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.

      Thomas D. Sommerville of Law Offiee-sof Muller & Sommerville, P.A., Winter Park, and David A. Henson of David A. Henson, P.A., Brevard, N.C., for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Appellant, Robert Fred Woodall, III, timely appeals the order denying his 3.850 motion for postconviction relief. Woodall contends that the postconviction court erred in denying each of the eight claims raised in his 3.850 motion. Because we find merit to Woodall’s contentions as they relate to Claims I and II in Ground I of his 3.850 motion, we affirm in part and reverse in part.

In December 2004, Woodall and two of his friends assaulted Roberto Santoni, Karl Phillips, Sachin Jaitly, and Rohit Pal-ta in the parking lot of Jaitl/s apartment complex. During the assault, Woodall pistol whipped Santoni while Santoni was sitting in his Toyota automobile. Woodall also fired his gun at Phillips, missing and striking Palta in the ankle. As a result of this incident, Woodall was charged by information with one count of burglary (Count I), one count of attempted first-degree murder (Count II), and one count of aggravated battery (Count III). In Count I, the State charged that Woodall:

remain[ed] in a conveyance, to wit: [Santoni’s Toyota], with the intent to commit or attempt to commit a forcible felony, ... and in the course of committing said offense did make an assault or battery upon [Santoni], and during the commission of said offense did actually possess and carry, display, use, threaten to use or attempt to use a firearm.

Further, in Count II, the State alleged that Woodall:

from a premeditated design to effect the death of [Phillips], attempted] to murder [Phillips], by shooting a gun at [Phillips], and in the course of committing said offense, [Woodall] did actually possess, discharge, and carry, display, use, threaten to use, or attempt to use a firearm.

At trial, the State’s evidence indicated that Woodall was actually standing outside of Santoni’s Toyota when he reached through the window of the vehicle to strike Santoni’s face. The jury was later instructed that, in order to prove the burglary charge, the State was required to prove that Woodall “entered a conveyance owned by or in possession of ... Santoni.” The jury was also instructed that it could consider aggravated assault with a firearm as a lesser-included offense of the attempted first-degree murder charge. Although Woodall had been charged pursuant to a “remaining in” theory of burglary in Count I and the fear element of aggravated assault was not alleged in Count II of the information, Woodall’s trial counsel did not object to either the burglary instruction or the instruction that the jury could consider aggravated assault as a lesser-included offense of attempted first-degree murder. Further, Woodall’s trial counsel never moved for a judgment of acquittal based upon the lack of evidence supporting the “remaining in” theory of burglary charged in the information. Ultimately, the jury returned a verdict finding Woodall guilty as charged as to Counts I and III. As to Count II, the jury found Woodall guilty of the lesser-included offense of aggravated assault with a firearm.

After Woodall’s convictions were per cu-riam affirmed by this court in Woodall v. State, 974 So.2d 1081 (Fla. 5th DCA 2008), Woodall filed the instant 3.850 motion for postconviction relief, which included seven claims of ineffective assistance of counsel in Ground I and one claim of sentencing error in Ground II. The postconviction court summarily denied Claims I, III, IV, and V of Ground I and the claim in Ground II. The court later denied Claim VI of Ground I after an evidentiary hearing, and although the State had conceded that Woo-dall was entitled to relief as to Claim II of Ground I, the court mistakenly found that Claim II had been stricken by the parties. Woodall filed a notice of appeal before the court had an opportunity to reconsider its ruling.

Claim I

In Claim I of his 3.850 motion, Woodall contends that his trial counsel was ineffective in failing to move for a judgment of acquittal on Count I based on the State’s failure to present any evidence supporting the “remaining in” theory of burglary charged in the information. “[W]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the [charging instrument].” D.R. v. State, 790 So.2d 1242, 1244-45 (Fla. 5th DCA 2001) (quoting Long v. State, 92 So.2d 259, 260 (Fla.1957)). The State’s failure to prove that the offense was committed in the manner charged may serve as grounds for a motion for a judgment of acquittal. See Marra v. State, 970 So.2d 475, 476-78 (Fla. 5th DCA 2007).

Clearly, the evidence presented in this case did not support the crime as charged in the information. As indicated above, the burglary count alleged that Woodall “remain[ed] in a conveyance” with the intent to commit or attempt to commit a forcible felony in violation of section 810.02(l)(b)2.c., Florida Statutes. Based on the language of this statute, its legislative history, the standard jury instructions, and the relevant case law, this court has previously held that when the State charges a defendant pursuant to the “remaining in” burglary statute, it is required to present evidence establishing that “the defendant was licensed or invited to enter the [structure] occupied by the victim[ ].” Harris v. State, 48 So.3d 922, 923-25 (Fla. 5th DCA 2010). Since the State failed to establish this element in this case and instead presented evidence indicating an unlawful entry, it appears that Woodall would have been granted an acquittal as to Count I had his trial counsel moved for a judgment of acquittal arguing that the State failed to prove a burglary in the manner charged in the information. See id.

The State concedes that counsel was ineffective for failing to move for a judgment of acquittal, and we find that relief should have been granted on this claim based upon our precedent in Harris.

Claim II

In Claim II of his 3.850 motion, Woodall contends that his counsel was ineffective for failing to object to the jury instruction for aggravated assault with a firearm as a lesser-included offense of the charge of attempted first-degree murder where the allegations in Count II of the information did not support an aggravated assault in that it did not allege any fear element. “A defendant may not be convicted of a permissive lesser-included offense where the charging document is silent as to an essential element of that offense.” Pereira v. State, 29 So.3d 1186, 1188 (Fla. 5th DCA 2010) (quoting In re E.W., 616 So.2d 1194, 1194 (Fla. 4th DCA 1993)). The creation of a well-founded fear in the victim of an assault is an essential element of the crime of assault. See Coissy v. State, 957 So.2d 53, 55 (Fla. 4th DCA 2007).

Here, the State correctly concedes error as to Claim II since Count II of the information made no reference to the fear element necessary to support an assault charge. The State further concedes that counsel’s failure to object to the instruction was not a tactical decision on his part. Therefore, the postconviction court should also have granted Claim II of Woodall’s 3.850 motion and vacated the conviction and sentence as to Count II.

Woodall’s Remaining Claims

We find no error by the posteonviction court on the other matters raised in Woo-dall’s 3.850 motion (which relate to his conviction and sentence as to Count III). Therefore, we reverse in part, affirm in part and remand with directions that the postconviction court vacate the judgment and sentences as to Counts I and II only.

AFFIRMED in Part; REVERSED in Part, and REMANDED WITH DIRECTIONS.

SAWAYA and LAWSON, JJ„ concur.


text:
    Gregory DURANT, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3915.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2012.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Gregory Durant challenges the judgment and sentence entered after a jury found him guilty of committing an unnatural or lascivious act and solicitation of a child under eighteen years of age to engage in an act that constitutes sexual battery by a person who is in a position of familial or custodial authority. On appeal, Durant contends the trial court erred in allowing the State to orally amend count three of the information at the close of its case and in permitting three witnesses to make damaging statements in front of the jury. We find these arguments to be mer-itless and affirm Durant’s conviction without further comment. We must, however, reverse Durant’s sentence because the trial court erroneously found he was a dangerous sexual felony offender (“DSFO”) and imposed a twenty-five year minimum mandatory incarceration term.

Section 794.0115, Florida Statutes, requires mandatory sentencing when a defendant qualifies as a DSFO. That statute states, in relevant part:

(2) Any person who is convicted of a violation of s. 787.025(2)(c); s. 794.011 (2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person:
(e) Has previously been convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph, is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.

§ 794.0115, Fla. Stat. (emphasis supplied).

In the current case, Durant was convicted of violating section 794.011(8)(a), Florida Statutes. Therefore, he would qualify as a DSFO under section 794.0115(2) if he met the other requirements of the statute. Durant does not have a previous conviction for violations of any of the statutes set forth in section 794.0115(2)(e). He was, however, convicted of violating section 800.04(1), Florida Statutes (1995), which provides that a person who “handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner ... without committing the crime of sexual battery, commits a felony of the second degree.” § 800.04(1), Fla. Stat. (1995).

The State argues that section 800.04(1), Florida Statutes (1995), has similar elements to sections 800.04(4) and (5), Florida Statutes, which are listed in section 794.0115(2)(e). It, therefore, contends Durant would qualify as a DSFO under section 794.0115(2)(e). We disagree.

Sections 800.04(4) and (5) read as follows:

(4) Lewd or lascivious battery. — A person who:
(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or
(b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity
commits lewd or lascivious battery....
(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

(emphasis in original).

After reviewing each of these crimes, we do not believe that the 1995 version of section 800.04(1) is similar in elements to sections 800.04(4) and (5). In particular, section 800.04(4) requires evidence of sexual activity, whereas there is no sexual activity requirement contained in section 800.04(1), Florida Statutes (1995). Likewise, section 800.04(5) requires evidence that the perpetrator intentionally touched “the breasts, genitals, genital area, or buttocks, or the clothing covering them” of the minor. Section 800.04(1), Florida Statutes (1995), contains no such requirement. Although section 800.04(5) and the 1995 version of section 800.04(1) contain other elements that are the same, we conclude they do not have similar elements for purposes of section 794.0115(2)(e). See Fike v. State, 68 So.3d 847 (Fla. 5th DCA 2011) (reversing designation as sexual predator where prior conviction in Michigan was not similar to lewd or lascivious offenses; Michigan offense did not include age requirement). Further, section 800.04(1), Florida Statutes (1995), shares similar elements with section 800:04(6), Florida Statutes, which is not a qualifying felony in the DSFO statute. See 794.0115(2)(e), Fla. Stat.; Abrams v. State, 971 So.2d 1033, 1037 (Fla. 4th DCA 2008) (reversing DSFO sentence because Abrams’ conviction for violating section 800.04(6) does not qualify him for sentencing pursuant to the DSFO statute).

Because Durant does not qualify as a DSFO, we must reverse his sentence and remand for resentencing. We affirm Durant’s conviction in all other respects.

REVERSED AND REMANDED.

EVANDER and COHEN, JJ., concur.

      . The jury found Durant was eighteen years of age or older at the time of the offense.

      . "Sexual activity” is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 800.04(l)(a), Fla. Stat.