author: CORTIÑAS, J.

text:
    John GIORDANO, individually, and G & G Addiction Treatment, Inc., a Florida corporation, Appellants, v. Donna L. ROMEO, and Xcentric Ventures, LLC, an Arizona Limited Liability Corporation, Appellees.
    No. 3D11-707.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.

      Rosen, Switkes & Entin and Mendy Halberstam, Miami Beach, and Joshua M. Entin, for appellants.
    Stack Fernandez Anderson & Harris and Brian J. Stack, Miami, and Sammy Epelbaum; Jaburg & Wilk and Maria Cri-mi Speth, Arizona, for appellees.
    Lyrissa C. Barnett Lidsky; Paul Alan Levy as amicus curiae on behalf of Public Citizen and Eric Goldman.
    Before WELLS, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   CORTIÑAS, J.

John Giordano (“Giordano”) operates G & G Addiction Treatment, Inc. (“G & G”), a Florida corporation which offers addiction treatment services. In July 2009, a disgruntled recipient of G & G’s services went online and posted false and defamatory claims about G & G, identifying Giorda-no as a convicted felon and claiming, among other things, that the employees of G & G illegally disburse medications and that the facility itself is dangerous. These posts were made on a website operated by Appellee, Xcentric Ventures, LLC (“Xcen-tric”), located at http://www.ripoffreport. com. The purpose of the website is to allow third party users to post complaints about companies or individuals, as happened here. Xcentric does nothing to prevent users of its website from posting false and defamatory statements, as also happened here.

In September 2009, Giordano and G & G (collectively, the “Appellants”) filed a complaint asserting four defamation-based claims against the user, and one claim seeking injunctive relief against Xcentric, requesting that the court prohibit Xcentric from allowing the post to remain on its website. The trial court determined that at least a portion of the post was defamatory per se. However, Xcentric moved to dismiss the complaint against it on the basis of its immunity from suit under the Communications Decency Act, 47 U.S.C. § 230 (“CDA”). The CDA specifies that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

Protracted legal proceedings ensued, with Xcentric consistently refusing to remove the defamatory post. Even after the original user was subjected to an injunction prohibiting her from allowing the post to remain on the website, in response to which she begged Xcentric to remove the statements, Xcentric refused to comply. Ultimately, while Appellants were able to obtain an injunction prohibiting the maintenance of the posting on Xcentric’s website, that injunction was dissolved. Appellants seek review of the order dissolving the injunction and dismissing Xcentric.

Xcentric raises the same arguments it presented to the trial court. The Florida Supreme Court has held that the CDA provides absolute immunity to interactive computer services like Xcentric. In Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001), an internet service provider that had allowed third parties to publish allegedly illegal postings on the internet was deemed immune from suit. Relying on the Fourth Circuit decision in Zeran v. Amer ica Online, Inc., 129 F.3d 327 (4th Cir. 1997), the Florida Supreme Court held that “section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning.” Doe, 783 So.2d at 1018. Further, the Court adopted the reasoning of Zeran unambiguously, stating that it was accepting Zeran’s account of the scope and purpose of the CDA “as a basis for our reading of section 230.” Doe, 783 So.2d at 1015. That account included the statement that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F.3d at 330. Consequently, under Florida law, section 230 of the CDA “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Id.

The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct. Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post. It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcen-tric would remove an offending post.

However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear. Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.

The decision of the trial court is affirmed.

      . As part of the record on appeal, Xcentric describes a “service” it provides to people and entities who wish to challenge false postings on Xcentric's website. This "service” is called the "Corporate Advocacy Program” by Xcentric. Individuals or businesses who believe they have been defamed by a posting on Xcentric's website must, according to the amicus brief filed in this case, "pay a tidy sum to be investigated by Xcentric’s management.” Moreover, "[i]n addition to a steep upfront charge, the business is required to make periodic payments to keep its status in the program." Xcentric further indicates on its website that the program "NEVER includes removal of complaints.” http://www. ripoffreport.com/ Consumers SayThank-You/WantToSueRipoffReport.aspx (emphasis in original).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kimothy Marquez MASSIE, Petitioner, v. Ric L. BRADSHAW, as Sheriff of Palm Beach County, Florida, Respondent.
    No. 4D11-4714.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2011.

      Carey Haughwout, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Arriving in court no more than 22 minutes after his case was called, petitioner’s bond was revoked and he was taken into custody. At a bond hearing three days later, the circuit judge determined that no condition of bond could assure the court that petitioner would either commit no new offenses or appear in court in this case. The record does not support the court’s findings. The determination was based in part on a criminal charge in Dade County that occurred prior to the criminal incident in this case. Petitioner had not previously failed to appear or been tardy for a court appearance in this case. We grant the petition and remand to the circuit court to impose conditions of release. See Art. I, § 14, Fla. Const.

GROSS, CIKLIN and CONNER, JJ., concur.


author: GRIFFIN, J.

text:
    Andre FRISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2392.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Andre Frison [“Frison”] appeals the sentence that he received upon resentenc-ing. He contends it was error to resen-tence him without counsel. We agree and reverse.

Frison was sentenced in 1989 to life in prison for sexual battery with a deadly weapon pursuant to section 794.011(2), Florida Statutes (1987). He was originally sentenced to 100 years in prison, but, after his appeal, he was resentenced to life in prison.

Frison then filed a pro se rule 3.800 motion to correct illegal sentence seeking resentencing on the basis of Graham v. Florida, — U.S.—, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The State conceded that because Frison was a juvenile at the time he committed the charged offense, Graham applied, making his life sentence without the possibility of parole an illegal sentence. At the hearing on the rule 3.800 motion, the court asked for the prosecutor’s position concerning sentencing. The prosecutor agreed that Frison could not be sentenced to life and asked for the maximum allowed of forty years. The trial court granted the motion and immediately resentenced Frison to forty years in prison followed by one year of community control and life probation. The transcript of the hearing makes clear that the purpose of the hearing was to consider Frison’s rule 3.800 motion to correct illegal sentence. There is no indication from the record that Frison was aware that a resentencing would occur, and he did not have counsel.

On appeal, Frison contends that he was denied due process because he did not receive notice of sentencing, he was not allowed to speak at the hearing, and, most notably, that he was not represented by an attorney.

In both capital and noncapital cases, our supreme court has held that resentencing is a new proceeding. State v. Collins, 985 So.2d 985, 989 (Fla.2008). A defendant has a due process right to notice of the sentencing hearing, the right to be heard and the right to legal representation. Stang v. State, 24 So.3d 566, 570 (Fla. 2d DCA 2009). “Resentencing is a critical stage of a criminal proceeding in which the full panoply of due process considerations attach, including the appointment of counsel.” Payne v. State, 38 So.3d 827, 828 (Fla. 1st DCA 2010). An indigent defendant is entitled to appointed counsel at resentencing after prevailing on a rule 3.800 motion. Mahone v. State, 39 So.3d 1278 (Fla. 5th DCA 2010).

The State acknowledges that a defendant is entitled to counsel at a resentenc-ing hearing, even when a rule 3.800(a) motion is granted. However, the State asserts that this is not required when the trial court is merely conducting a ministerial act. The State contends that Frison’s resentencing was merely “ministerial” because all of the parties agreed that, under Graham, Frison’s life sentence was illegal; therefore, the only option remaining upon resentencing was the imposition of a forty-year sentence. In other words, the State asserts that the imposition of the forty-year sentence was mandatory; thus, there was no need for appointed counsel.

Frison was originally convicted of sexual battery with a deadly weapon, a life felony under section 794.011(3), Florida Statutes (1987). The 1987 version of section 794.011 states:

A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury is guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 775.082(3), Florida Statutes (1987) states in pertinent part:

(3) A person who has been convicted of any other designated felony may be punished as follows:
(a) For a life felony committed prior to October 1, 1983, by a term of imprisonment for life or for a term of years not less than 30 and, for a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term, of imprisonment not exceeding W years.

(Emphasis added). The emphasized language of section 775.082(3)(a) gives the court the discretion to sentence Frison to less than forty years. Moreover, Frison was entitled to be heard on the community control and life probation. Frison is entitled to a new resentencing hearing and to counsel.

SENTENCE VACATED and REMANDED.

MONACO and SAWAYA, JJ., concur.

      . The United States Supreme Court held that "the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S.Ct. at 2034.


author: PALMER, J.

text:
    Bill PLOWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3422.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.
    Bill Plowman, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Bill Plowman appeals the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Plowman’s rule 3.850 motion raised ten grounds of ineffective assistance of counsel. The trial court denied one ground after an evidentiary hearing and summarily denied the rest. We find merit in the arguments raised as to grounds 2 and 8.

In ground 2, Plowman alleged that his trial counsel was ineffective for failing to file a motion to suppress statements he made during his arrest, as well as notes and letters found in his truck. The trial court summarily denied this ground, concluding that Plowman waived any suppression issues by entering his plea of nolo contendere and, thus, that a suppression motion would not have been supported by law. Regarding the notes and letters, the court stated alternatively that Plowman lacked standing to seek suppression of these items that “he left in a company truck.”

Plowman argues that he did not waive this ineffective assistance of counsel claim by entering his plea. We agree. A plea waives certain defenses for purposes of direct appeal. Lacey v. State, 831 So.2d 1267, 1271 (Fla. 4th DCA 2002); Boddie v. State, 328 So.2d 877 (Fla. 1st DCA 1976). However, a plea does not waive ineffective assistance of counsel claims regarding counsel’s failure to raise those defenses. See Skellie v. State, 849 So.2d 1220, 1220 (Fla. 5th DCA 2003) (“Although [defendant] waived all defenses by entering the plea, he nevertheless may be entitled to 3.850 relief if he can show that counsel did not adequately investigate or pursue a viable defense.”); Robinson v. State, 972 So.2d 1115 (Fla. 5th DCA 2008) (holding that plea did not waive claim of ineffective assistance of counsel for failure to seek suppression).

Because this ground was not legally insufficient on its face, the trial court was required to attach record documents conclusively refuting it. Fla. R.Crim. P. 3.850(d) (2009). The court failed to do so as to Plowman’s arrest statements. Additionally, as to the notes and letters found in the truck, the trial court failed to attach documents to support its rationale that these items were found in a “company” truck in which Plowman lacked a privacy interest sufficient for standing to seek suppression. As noted above, Plowman alleged that they were found in his truck.

In ground 8, Plowman alleged that his trial counsel was ineffective because he filed a demand for speedy trial under rule 3.191(b), but thereafter failed to invoke the procedure for discharge. See Fla. R.Crim. P. 3.191(b)(4), (p)(2)-(3) (2008). The trial court summarily denied this ground, stating: “[T]he defendant ... waived speedy trial at his first pre-trial on December 14, 2007. There was no basis in law to file a motion for speedy trial discharge.” However, the court failed to attach documents showing a waiver of speedy trial. In addition, Plowman alleged defense counsel subsequently filed a demand for speedy trial. After a waiver, speedy trial rights can be reactivated by filing a rule 3.191(b) demand for speedy trial. State v. Gibson, 783 So.2d 1155, 1158 n. 2 (Fla. 5th DCA 2001); see Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980) (holding same under predecessor of rule 3.191(b)).

Accordingly, as to these two grounds, we reverse the trial court’s order and remand for the trial court to attach record documents conclusively refuting the grounds or to hold an evidentiary hearing. See Fla. R.Crim. P. 3.850(d).

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, C.J., and GRIFFIN, J., concur.

      . Plowman also raised an issue regarding suppression of photographs within this ground, but we affirm as to that issue.


text:
    Ann Marie FARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1206.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Based on a careful review of the record, we conclude that the evidence was simply insufficient to show that appellant, as opposed to some other individual, took the victim’s iPhone.

REVERSED and REMANDED for Entry of Judgment of Acquittal.

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


text:
    KISSIMMEE HEALTH CARE ASSOCIATES, etc., et al., Petitioners, v. Alejandro GARCIA, etc., Respondent.
    No. 5D11-2130.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.

      Lauren K. Rutherford, Philip J. Wallace and Emily R. Katz of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Petitioners.
    Jose F. Garcia of Udowychenko & Garcia, P.A., Kissimmee, for Respondent.
   PALMER, J.

Kissimmee Health Care Associates, LLC, d/b/a Keystone Rehabilitation and Health Center; its administrator, Jose Ali-cea; and Sea Crest Health Care Management, LLC, (collectively “Keystone”) seek certiorari review of the order entered by the trial court denying Keystone’s motion to dismiss the complaint filed by Alejandro Garcia. The complaint alleged violations of Florida’s nursing home residents’ rights under sections 400.022-.023, Florida Statutes (2010). Keystone moved to dismiss based on Garcia’s failure to mediate before filing his lawsuit. Determining that mediation is not a condition precedent to filing suit and, therefore, the trial court properly denied Keystone’s dismissal motion, we deny the petition.

Lidia M. Nunez was a patient at Keystone. Garcia was her son and had power of attorney over her affairs. Garcia sent Keystone a presuit notice stating that he had a claim under Chapter 400 of the Florida Statutes on behalf of his mother. After Keystone failed to respond to his requests for certain documents, Garcia filed suit.

Keystone filed a motion to dismiss the lawsuit, arguing that Garcia had not met the statutory condition precedent of pre-suit mediation. See § 400.0233(11), Fla. Stat. (2010). The trial court denied the motion, ruling that Garcia’s failure to mediate was not fatal to his lawsuit. Keystone petitions for certiorari review of that ruling.

A party seeking certiorari review of an interlocutory order must show that (1) the order departed from the essential requirements of the law, and (2) the harm caused by the error will not be correctable in a post-judgment appeal. See Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000).

Keystone argues that the trial court’s denial of its motion to dismiss departed from the essential requirements of the law because section 400.0238(11) of Florida’s nursing home statute provides that the parties “shall” meet in mediation before the claimant files suit. The statute reads, in relevant part, as follows:

400.0233 Presuit notice; investigation; notification of violation of resident’s rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation. □
(11) Within 30 days after the claimant’s receipt of the defendant’s response to the claim, the parties or their designated representatives shall meet in mediation to discuss the issues of liability and damages .... At the conclusion of mediation, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.

§ 400.0233(11), Fla. Stat. (2010).

Although subsection (11) contains the mandatory language “shall,” it does not specify which party must initiate mediation. Additionally, subsection (11) does not expressly state that mediation is a condition precedent to filing suit. In contrast, section 400.0233 contains other subsections that do set forth conditions that are clearly labeled as conditions precedent to filing suit. For example, subsection (2) requires a claimant to notify each prospective defendant of asserted violations of the statute before filing suit. See § 400.0233(2), Fla. Stat. (2010). Similarly, subsection (3) requires the claimant to wait 75 days after the subsection (2) notice is mailed before filing suit. See § 400.0233(3)(a), Fla. Stat. (2010).

Accordingly, the trial court did not depart from the essential requirements of the law in denying Keystone’s motion to dismiss.

PETITION DENIED.

SAWAYA and LAWSON, JJ., concur.

      . Although certiorari generally does not lie to review the denial of a motion to dismiss, Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987), there is a well-established exception for motions to dismiss for failure to comply with presuit conditions precedent. See Martin Mem'l Med. Ctr., Inc. v. Berber, 984 So.2d 661, 662 (Fla. 4th DCA 2008); Scherer v. Rigsby, 24 So.3d 561 (Fla. 4th DCA), rev. denied, 23 So.3d 712 (Fla. 2009). The rationale underlying this exception is that statutes requiring presuit screening "cannot be meaningfully enforced post-judgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Parkway Bank v. Fort

        Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). Accord Fassy v. Crowley, 884 So.2d 359, 363 (Fla. 2d DCA 2004). Additionally, interlocutory review promotes the purpose of presuit conditions, to encourage settlement. Cent. Florida Reg'l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998).


text:
    STATE of Florida, Appellant, v. Julius Deshondra SAMUELS, Appellee.
    No. 5D11-2866.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PALMER, J.

The State of Florida appeals the trial court’s order granting Julius Samuels’ motion to remove the sentencing requirement that he register as a sex offender. Determining that the trial court erred in granting the motion, we reverse.

Samuels pled nolo contendere to one count of committing a lewd and lascivious battery on a child 12 years of age or older but less than 16 years of age, in violation of section 800.04(4)(a), Florida Statutes (2009). He was sentenced to a term of thirty months in the Department of Corrections and was required to register as a sex offender pursuant to section 943.0435 of the Florida Statutes (2009).

Samuels filed a motion pursuant to rule 3.180(a) of the Florida Rules of Criminal Procedure arguing that he is exempt from the sexual offender registration requirement under section 943.04354 of the Florida Statutes (2009), commonly referred to as Florida’s Romeo and Juliet law. The statute provides:

943.04354 Removal of the requirement to register as a sexual offender or sexual predator in special circumstances.—
(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:
(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5) or the person committed a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5);
(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and
(c) Is not more than U years older than the victim of this violation who was H years of age or older but not more than 17 years of age at the time the person committed this violation.

(Emphasis added).

The trial court granted the motion, concluding that Samuels had demonstrated that section 943.04354 was applicable to his case since the victim was 14 years old and Samuels was 18 years old at the time of the offense. We disagree. The information in this case shows that the actual difference in age between Samuel and the victim at the time of the offense was four years, one month, and 21 days. “If a defendant is one day past the four-year eligibility limit prescribed by section 943.04354 of the Florida Statutes, he is 00ineligible to petition for relief.” State v. Marcel, 67 So.3d 1223, 1225 (Fla. 3d DCA 2011) (citing State v. Faulk, 200 N.C.App. 118, 683 S.E.2d 265 (2009)).

Accordingly, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

MONACO and JACOBUS, JJ., concur.


text:
    Jon A. REGISTER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3185.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.
    Jon A. Register, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Jon A. Register, Petitioner, seeks a belated appeal of his judgment and sentence in Osceola County case number 2004-CF-000152, asserting that immediately following sentencing, he requested his attorney, Jose Baez, to file an appeal, but counsel failed to do so. On October 27, 2011, this Court ordered the appointment of a commissioner to conduct an evidentiary hearing and make a finding of fact as to whether Petitioner timely communicated to the trial attorney his desire to appeal the judgment and sentence. The commissioner conducted a hearing; however, he made no findings as to whether Petitioner made a timely request to his counsel to file an appeal. Because the sworn testimony of Petitioner was not refuted, we grant Petitioner’s request for a belated appeal. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2004-CF-000152, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, COHEN and JACOBUS, JJ., concur.


text:
    Yessy GEORGE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3969.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.
    Robert Wesley, Public Defender, and Alena Valeria Baker, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number CF11-5085-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, TORPY and LAWSON, JJ., concur.


text:
    Elvis QUIMI, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4198.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.
    A. Mauricio Hued, of Hued & Valedon, P.A., Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We find no error, fundamental or otherwise, in the admission of Mr. Quimi’s statement to the police. The mid-trial, oral motion to suppress made after the statement had been admitted without objection, should have been denied by the trial court on the merits.

AFFIRMED.

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


text:
    Jesus Rangel BERNAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3018.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      Jesus Rangel Bernal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner has filed a timely petition alleging appellate counsel was ineffective for not arguing on appeal that the trial court vindictively imposed consecutive sentences at resentencing in violation of the constitutional prohibition against double jeopardy. We grant the petition in part and deny it in part.

After petitioner entered a nolo conten-dere plea to three counts of DUI manslaughter (counts I, II, and III) and two counts of DUI with serious bodily injury (counts IV and V), the trial court imposed concurrent sentences of fifty-five years on counts I, II, and III and five years on counts IV and V. During the pendency of his direct appeal, petitioner filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which claimed his fifty-five-year sentences on counts I, II, and III were illegal. The state conceded these sentences exceeded the fifteen-year statutory maximum for DUI manslaughter; noted the plea agreement permitted the court to impose a prison sentence of between 38.5 years (the lowest permissible sentence allowed by the scoresheet) and fifty-five years (the sentencing cap provided in the plea agreement); and requested the court to resentence petitioner to consecutive prison terms of fifteen years on counts I, II, and III and five years on counts IV and V. Petitioner responded the court could not resentence him on counts IV and V without violating the constitutional prohibition against double jeopardy because he was not challenging his sentences on those two counts. The trial court granted petitioner’s motion and re-sentenced him to consecutive prison terms of fifteen years on counts I, II, and III and five years on counts IV and V.

On appeal, petitioner’s appellate counsel filed a brief pursuant to Anders v. Califor nia, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This court affirmed without opinion. Bernal v. State, 9 So.3d 748 (Fla. 1st DCA 2009). However, Judge Benton filed a concurring opinion observing that “[tjhis case represents at least an arguable issue about whether appellant’s resentencing comported with the prohibitions against double jeopardy” and that the affirmance was “without prejudice to appellant’s right to seek relief collaterally ... although he may not have the right to be assisted by counsel in doing so.” Id. at 749. This petition follows.

In his petition, petitioner alleges appellate counsel was ineffective for not arguing that the trial court vindictively resentenced him to consecutive prison terms on all counts in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We find this claim to be without merit. Because the overall length of petitioner’s imprisonment before and after resentencing remained unchanged at fifty-five years, no presumption of vindictiveness arose under Pearce. See Blackshear v. State, 531 So.2d 956, 958 (Fla.1988) (holding the trial court could restructure the defendant’s sentences from concurrent to consecutive under Pearce provided the overall length of the defendant’s imprisonment remained the same); Everett v. State, 824 So.2d 211 (Fla. 1st DCA 2002) (same). Accordingly, we deny the petition as to this particular claim.

In addition, petitioner alleges appellate counsel was ineffective for not arguing that the trial court erred in resen-tencing petitioner to consecutive prison terms on counts IV and V in violation of the constitutional prohibition against double jeopardy. Although this argument was raised below during a series of hearings on petitioner’s rule 3.800(b)(2) motion, it was not raised by appellate counsel on appeal. We conclude this constituted deficient performance that prejudiced petitioner on appeal. When the trial court granted petitioner’s rule 3.800(b)(2) motion challenging only the legality of his sentences on counts I, II, and III, the constitutional prohibition against double jeopardy precluded the trial court from modifying petitioner’s unchallenged sentences on counts IV and V, which petitioner had begun serving and were final by the time he filed his rule 3.800(b)(2) motion. See Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007); Pitts v. State, 935 So.2d 634 (Fla. 2d DCA 2006); Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005); Seago v. State, 627 So.2d 1316 (Fla. 2d DCA 1993). Accordingly, we grant the petition as to this claim and remand with directions that the trial court reinstate the original concurrent sentences on counts IV and V. See Gordon v. State, 635 So.2d 1017, 1018 (Fla. 1st DCA 1994); Seago, 627 So.2d at 1316.

PETITION GRANTED in part and DENIED in part.

PADOVANO, HAWKES and SWANSON, JJ„ Concur.


author: HAWKES, J.

text:
    Thomas C. STAPLES, attorney of record for Plaintiffs, Patricia Long and Robert Long, Appellant, v. Ann E. DUERR, M.D. and Panhandle Anesthesiology Associates, P.A.; a Florida professional association, Appellees.
    No. 1D11-2725.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      Meagan Shell Ivey and Charles F. Beall, Jr, of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    J. Nixon Daniel, III, and Terrie L. Didier, of Beggs & Lane, Pensacola, for Appel-lees.
   HAWKES, J.

This appeal concerns an award of attorney’s fees against Thomas C. Staples under section 766.206(2), Florida Statutes (2007). The trial court used section 766.206(2) to award fees for pre-suit costs spent investigating the legitimacy of a medical malpractice claim, as well as for post-suit costs spent litigating entitlement to fees. Staples is challenging that portion of the order awarding post-suit costs, arguing section 766.206(2) only authorizes pre-suit expenses incurred while investigating and evaluating a claim, not post-suit expenses spent litigating entitlement to fees. We agree.

Whether a statutory provision authorizes fees for expenses incurred while litigating entitlement to fees is a matter of statutory interpretation subject to de novo review. See Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723, 731 (Fla. 1st DCA 2007); see also State Farm Fla. Ins. Co. v. Silber, 72 So.3d 286, 288 (Fla. 4th DCA 2011). Courts engaging in the interpretation of a fee statute must strictly construe the statute’s language. See Hoeltzell v. Erenstoft, 985 So.2d 636, 637 (Fla. 4th DCA 2008).

Section 766.206(2), Florida Statutes (2007) — which comes in the midst of the statutory section dealing with medical malpractice actions — states the following:

If the court finds that the notice of intent to initiate litigation mailed by the claimant is not in compliance with the reasonable investigation requirements of sections 766.201-766.212, including a review of the claim and a verified written medical expert opinion by an expert witness[ ], the court shall dismiss the claim, and the person who mailed such notice of intent, whether the claimant or the claimant’s attorney, shall be personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney’s fees and costs of the defendant or the defendant’s insurer.

(emphasis added). Of importance, section 76.206(2) provides only for those fees incurred “during the investigation and evaluation of the claim.” See Kulcral v. Meleras, 679 So.2d 278, 281 n. 2 (Fla:1996) (stating section 766.206(2) imposes fees only “for the expense and effort that one party may have unnecessarily caused the other to incur during the pre-suit period”). This language limits the provision’s reach to only fees incurred during the pre-suit phase. It does not extend to expenses incurred after the suit has been filed, such as the fees/costs associated with post-suit litigation over entitlement to fees.

This interpretation of section 766.206(2) is supported by caselaw. In Rodriguez v. Campbell, 778 So.2d 511 (Fla. 4th DCA 2001), the Fourth District confronted a situation similar to the instant case in which the trial court awarded fees under section 766.206(2) for the periods both before and after the suit was filed. The Fourth District rejected the award of post-suit fees, stating:

Under the plain text of the statute, [] the liability is only for the narrow purpose specified and therefore the amount awarded should have been limited to those incurred during the investigation and evaluation [of the claim].

Id. at 512. The Fourth District reversed the award and remanded for the trial court to adjust the amount to cover only those fees incurred during the period of pre-suit investigation. Id. Given the holding in Rodriguez, and considering that fee statutes must be strictly interpreted, we find section 766.206(2) does not cover any expenses incurred after suit is filed, even if subsequent litigation concerns entitlement to pre-suit fees.

Defendants attempt to circumvent the clear limitations of the provision by arguing the post-suit litigation concerning its entitlement to fees under section 766.206(2) was needless. Defendants claim they were clearly entitled to pre-suit fees under section 766.206(2) as Staples failed to comply with the statutory investigation requirements before mailing the notice of intent to initiate litigation. Defendants argue the trial court agreed with them as it entered summary judgment in their favor based on Staples’ failure to comply with these requirements. According to defendants, Staples’ insistence on contesting their clear entitlement to pre-suit fees under section 766.206(2) was frivolous. Therefore, they claim section 766.206(2) should cover any post-suit expenses they incurred while litigating their entitlement to pre-suit fees under the provision.

The problem with defendant’s argument is that it ignores the language of section 766.206(2). The provision covers only those fees and costs spent actually investigating and evaluating a claim. A distinction must be recognized between the cost of investigating/evaluating a claim and the cost of litigating whether such investigation/evaluation was adequately conducted, which is the question to be answered in fee disputes under section 766.206(2). These are two separate concepts and only the former is covered by the language of section 766.206(2).

In short, the trial court erred in using section 766.206(2) to cover defendants’ post-suit expenses spent litigating their entitlement to fees. The portion of the trial court’s order awarding $9,285 for such post-suit expenses is REVERSED and the matter is REMANDED for a correct fee order to be issued in accordance with this opinion.

WOLF and ROBERTS, JJ., concur.

      . The trial court’s final judgment used section 766.206(2) to assess total fees and costs of $14,485. Of that award, $5,200 covered pre-suit expenses incurred by the Appellees (defendants) in investigating and evaluating the underlying claim. This portion of the order is not in dispute. The remaining $9,285 covered post-suit expenses incurred by defendant in litigating their entitlement to fees.

      . We have also considered defendants’ claim that the post-suit fees were justified under section 57.105, Florida Statutes(2010), thereby providing an alternate basis to affirm the entire award. We reject this argument without further comment.


text:
    Jorge ARNAU, Appellant, v. WINN-DIXIE STORES, INC. and Sedgwick CMS, Appellees.
    No. 1D11-1369.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Bill McCabe, Longwood, and Michael G. Srebnick, Miami, for Appellant.
    Susan J. Arrick of Arrick, Peacock & Kerr, Miami, and William H. Rogner, Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the claimant argues that the judge of compensation claims (JCC) erred in finding that the claimant failed to give timely notice of his thoracic spine injury, in ruling that he was not entitled to an evaluation by a thoracic surgeon, and in denying his claims for temporary benefits from July 20, 2009, and continuing, and for penalties, interest, costs, and attorney’s fees; and in awarding the employer and its carrier prevailing party costs. We affirm without further comment the JCC’s finding that the claimant did not provide timely notice of any injury to his thoracic spine described as such. We reverse and remand as to all remaining issues because the JCC failed to identify clear and convincing evidence in support of her apparent rejection of the expert medical advisor’s (EMA’s) opinion.

Background

While within the scope and course of his employment, the claimant had a motor vehicle accident on March 20, 2009, which he reported to his employer on that date. He did not, however, report any injury resulting from the accident until June 4, 2009, when he filed a petition for medical and indemnity benefits, alleging a chest wall injury. The employer and its carrier accepted the chest wall injury as compensa-ble and provided benefits.

Later the claimant requested a change in physicians, and Dr. Badell was authorized. Dr. Badell recommended that the claimant be examined by a thoracic surgeon to determine the cause of the claimant’s continuing chest pain. On the other hand, the employer’s independent medical examiner opined that such an examination was unnecessary.

To resolve the impasse, the employer and its carrier requested appointment of an EMA, and the JCC appointed Dr. Campbell as the EMA. Dr. Campbell examined the claimant on October 15, 2010. Based on his physical examination and a review of medical records and depositions, Dr. Campbell agreed with Dr. Badell that an evaluation by a thoracic surgeon was medically necessary. The JCC, in the order under review, denied the claim for an evaluation by a thoracic surgeon, but failed to identify any specific evidence justifying rejection of the EMA’s opinion.

Analysis

Section 440.13(9)(c), Florida Statutes (2008), mandates that the JCC appoint an EMA when there is a disagreement in the opinions of the health care providers. See Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1356 (Fla. 1st DCA 1997). The opinion of the EMA shall be admitted into evidence. See § 440.25(4)(d), Fla. Stat. (2008). The opinion of the EMA is presumed correct unless the JCC finds clear and convincing evidence to the contrary. See § 440.13(9)(c), Fla. Stat. (2008). In Mobile Medical Industries v. Quinn, 985 So.2d 33, 36 (Fla. 1st DCA 2008), we made clear “that an EMA’s opinion is presumptively correct unless the JCC finds and articulates ‘clear and convincing evidence to the contrary.’ ” (emphasis added) (quoting § 440.13(9)(c), Fla. Stat. (2002)).

Here, the JCC failed to identify any evidence, much less articulate clear and convincing evidence, that would support rejection of the EMA’s recommendation that the claimant’s chest wall be evaluated by a thoracic surgeon. Accordingly, we reverse and remand for further findings relating to the EMA’s recommendation that the claimant be evaluated by a thoracic surgeon. Because resolution of the remaining issues depends upon the need for and, if there is a need, the outcome of that evaluation, we reverse as to the remaining issues as well.

Accordingly, the order is AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

BENTON, C.J., ROWE, and RAY, JJ„ concur.


text:
    William Earl DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5701.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s conviction. However, we find that the trial court failed to conduct a proper Faretta inquiry at the sentencing hearing. See Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007) (“Sentencing is a crucial stage of a criminal proceeding, so that the offer of assistance of counsel must be renewed then, even if the defendant has previously waived counsel at other stages.”). Accordingly, we are compelled to vacate the appellant’s sentence and remand for resen-tencing following a proper Faretta inquiry. See id. (“Because the failure to renew the offer of counsel at the commencement of the sentencing hearing constitutes reversible error, Appellant is entitled to be re-sentenced after a proper Faretta inquiry”).

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Robbie GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1346.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      Robbie Grant, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robbie Grant, Appellant, seeks review of an order granting in part and denying in part his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which Appellant made various claims. We affirm the trial court’s denial of all but one of Appellant’s claims. Appellant claims that the trial court erred in failing to give Appellant credit for time served in jail while awaiting placement into a drug treatment facility. We reverse and remand only as to this claim, and otherwise affirm the trial court’s order without comment.

On June 5, 2006, the trial court ordered a suspended sentence of 100 months’ probation, with the first year to be served on community control. On August 28, 2006, Appellant violated his community control. As a result of this violation, the trial court modified Appellant’s probation at the sentencing hearing. The trial court ordered Appellant’s suspended sentence to remain at 100 months’ probation, but also stated that (1) Appellant would be placed in an inpatient drug treatment facility called “Teen Challenge” for the first year of probation, and (2) Appellant would remain in county jail until placed in the Teen Challenge facility. Appellant remained in county jail from November 21, 2006, until December 13, 2006, when he went to the Teen Challenge facility. Appellant claims that the trial court erred in failing to give him credit for time served in county jail while awaiting placement into a drug treatment facility. We agree, and the State concedes error.

A defendant is “entitled to credit for time spent in jail awaiting placement into a drug treatment facility imposed as a condition of probation or community control.” LaLonde v. State, 941 So.2d 586, 587 (Fla. 4th DCA 2006); see also Bamishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006) (citing Truette v. State, 914 So.2d 1074, 1074) (“Because Appellant served time in jail as a special condition of his probation, he is entitled to credit for that time.... ”). The trial court erred in failing to award him credit for time served in county jail from November 21, 2006, until December 13, 2006, because the time that Appellant served in jail was a condition of his probation, and he was awaiting placement into a drug treatment facility. Accordingly, we reverse and remand as to this claim with instructions that the trial court enter an order giving Appellant credit for the time he served in county jail while awaiting placement into a drug treatment facility. In all other aspects, we affirm the trial court’s order.

AFFIRMED in part; REVERSED in part; and REMANDED.

WOLF, LEWIS, and RAY, JJ„ concur.


text:
    Tony Lee PATTERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2793.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      Tony Lee Patterson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 18, 2010, judgment and sentence in Bay County Circuit Court case number 10-001495-CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    William Todd LARIMORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6210.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.

      Matt Shirk, Public Defender, and Michelle Barki, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

William Todd Larimore petitions the court for prohibition relief, contending that the circuit court erred in denying his motion to dismiss a pending petition seeking his involuntary commitment as a sexually violent predator under the Jimmy Ryce Act, sections 394.910- 931, Florida Statutes (2010). We previously denied Lari-more’s petition by unpublished order, but now write to explain the basis for our ruling.

In brief, Larimore entered pleas in 1991 to charges of lewd and lascivious acts on a child. While he was still in the custody of the Department of Corrections, the state filed a petition with the circuit court in 2004 seeking to have Larimore involuntarily committed pursuant to the Ryce Act. In Larimore v. State, 2 So.3d 101 (Fla. 2008), however, the supreme court held that a jurisdictional prerequisite to a viable cause of action for commitment under the Ryce Act is that the individual be in lawful custody when the state initiates commitment proceedings. Finding under the unique facts described in its opinion that Larimore was not in lawful custody when the commitment proceeding was commenced, the court concluded that the circuit court lacked jurisdiction to adjudicate the commitment petition before it. The court thus held as follows:

Because Larimore was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him in this case, the state’s commitment petition is hereby dismissed with prejudice and Larimore shall be immediately released from any custody or commitment imposed as a result of the Jimmy Ryce Act proceedings that are the subject of this decision.

Id. at 117.

Larimore was released from custody, but was later charged with new offenses, pled guilty and was sentenced to a term of imprisonment. As a consequence he once again finds himself in the custody of the Department of Corrections. In a July 2011 letter, the Sexually Violent Predator Program’s Multidisciplinary Team found based on its review (which included clinical evaluations conducted in May and June 2011 in which Larimore refused to participate) that petitioner meets the criteria to be considered a sexually violent predator and recommended that a petition seeking his commitment under the Ryce Act be filed. The state filed such a petition in August 2011, relying on facts and assessments derived from the 2011 evaluation as well as the same qualifying lewd and lascivious act convictions that were relied upon in the 2004 petition. Larimore moved to dismiss the new petition, arguing that principles of res judicata and collateral estoppel barred the state from proceeding on the new petition. Following a brief hearing, the trial court denied the motion to dismiss, finding that the dismissal of the 2004 petition was not a decision on the merits of whether Larimore was a sexually violent predator, and the state was therefore not barred from proceeding on the new petition.

In support of his request for prohibition relief, Larimore argues, as he did to the circuit court, that the supreme court was clear in its 2008 decision that the petition filed in 2004 was dismissed “with prejudice,” thereby putting to rest all justiciable issues in this case. Accordingly, the doctrines of res judicata or collateral estoppel bar the state’s present attempt to commit him under the Ryce Act. We conclude otherwise.

The doctrine of res judicata applies only when several conditions are shown to exist, including identity of the prior and current causes of action. See Dadeland Depot. Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1235 (Fla. 2006). The effect of res judicata extends only to facts and conditions as they existed at the time the prior court rendered its judgment. See Saadeh v. Stanton Rowing Found., Inc., 912 So.2d 28, 31 (Fla. 1st DCA 2005). Identity of causes of action for purposes of res judicata “means an identity of the facts essential to the maintenance of the action.” See M.C.G. v. Hillsborough County Sch. Bd., 927 So.2d 224, 227 (Fla. 2d DCA 2006). Such an identity does not exist here. Under the supreme court decision on which he relies, lawful custody is plainly a fact essential to the maintenance of a Jimmy Ryce action, inasmuch as the court specifically held that “the Act requires that the individual be in lawful custody when the commitment proceedings are initiated.” Larimore, 2 So.3d at 117. Indeed, the earlier proceeding was deemed fatally defective precisely because Larimore was not in lawful custody at the time it was commenced. The present petition, in contrast, is jurisdictionally predicated on Larimore’s lawful custody occurring after the 2004 petition was dismissed. Moreover, commitment under the Ryce Act requires a showing that the respondent presently “suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10), Fla. Stat. (2010). While the qualifying offenses making Larimore eligible for commitment may be the same, his current mental condition obviously could not have been at issue during the earlier proceedings, nor for that matter was the question of his condition even reached in that proceeding.

The doctrine of collateral estop-pel likewise does not bar the proceedings below. Although collateral estoppel may be applied to bar subsequent causes of action even where the second claim requires proof of different essential facts than those required to be proved in the initial suit, an identical issue must have been presented in the prior proceeding, the issue must have been a critical and necessary part of the prior determination, there must have been a full and fair opportunity to litigate that issue, and the issue must have been actually litigated. See Felder v. Dept. of Mgmt. Serv., 993 So.2d 1031, 1034-35 (Fla. 1st DCA 2008). The only issue fully and actually litigated with respect to the earlier petition concerned the lawful custody requirement, and inasmuch as the state is not relying on Larimore’s earlier custody to satisfy the jurisdictional prerequisite to pursuing its present petition, collateral estoppel does not apply here.

On the basis of the foregoing, we conclude that the circuit court properly denied Larimore’s motion to dismiss.

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


author: CLARK, J.

text:
    Gregory Allen JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3790.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General and Kellie A. Nielan, Daytona Beach, for Ap-pellee.
   CLARK, J.

Gregory Allen Johnson appeals his conviction, after jury verdict, of Lewd or Lascivious Conduct upon, and Lewd or Lascivious Exhibition in the presence of, a six year old girl. § 800.04(6) & (7), Fla. Stat. Because the record does not contain the required findings of fact, determinations of credibility, and specific ruling by the trial court on the admissibility of hearsay statements of the child victim, as required by section 90.808(23), Florida Statutes, the judgment is reversed and remanded for new trial.

The error in this case stemmed from the pre-trial proceedings. Upon the state’s filing of its initial notice under section 90.808(23), the predecessor judge entered an order but then rescinded it. That judge directed the state to file an amended notice and the parties agreed with the court that a hearing on the amended notice would take place. On May 12, 2010, the state filed its amended notice, specifying that it intended to offer the videotaped testimony of the child victim and the testimony of a therapist regarding statements made by the child victim during counseling. As the proponent of the evidence in question, it was incumbent upon the state to secure the statutory ruling as to its admissibility for the record. However, the record contains no indication that the hearing ever took place and contains no written or oral ruling on the amended notice. The parties proceeded to trial with a subsequent judge, and all labored under the mistaken belief that the original judge had deemed the state’s child hearsay evidence admissible.

The list of exhibits admitted into evidence does not indicate that the videotape was ever entered into evidence, but at trial, therapist Cheryl Carswell testified extensively about the child’s statements to her about the incident, over defense counsel’s renewed objection. In addition, witness Nicole Fryback of the Child Protection Team was also allowed to testify at trial about out-of-court statements the child made to her, over defense counsel’s objection to the “child hearsay.” No hearing or argument took place on the defense’s renewed objections and the trial court made no specific findings on the record specifying a basis for a determination by the court that the child victim’s statements were reliable, as required by section 90.803(23). No determination was made on the record at all, because counsel and the court all mistakenly assumed that a predecessor judge had ruled on the admissibility of the child’s out-of-court statements, when in fact, the judge had not.

While section 90.803(23) is not the exclusive method of admitting child/victim hearsay in abuse cases and other hearsay exceptions may also apply, Doe v. Broward County School Bd., 744 So.2d 1068 (Fla. 4th DCA 1999), no other hearsay exceptions were advanced by the state in this case. Due to the trial judge’s mistaken assumption that the child hearsay question had been determined prior to trial, which neither party realized was incorrect, the judge disposed of each objection by defense counsel by referring to the “previous ruling,” even though the only previous ruling on a 90.803(23) notice had been rescinded.

The error in admitting the two state witnesses’ testimony about what the child victim told them was preserved by the defense because even though he thought a ruling had previously been made, defense counsel renewed his objection to the hearsay at every opportunity during trial, and afterwards, in his motion for new trial. Given the mutual mistake by all the participants about the predecessor judge’s rulings, or absence thereof, the error here was not invited error. This is not a case where defense counsel “sandbagged” the judge into committing error he knew would result in automatic reversal. See Rosen v. State, 940 So.2d 1155, 1161 (Fla. 5th DCA 2006).

The error in allowing the witnesses to testify about the child’s out of court statements without complying with section 90.803(23) was not harmless error. The harmless error rule “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable probability that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Here, the child herself testified and was cross-examined by the defense. In addition, the child’s grandmother testified about the child’s demeanor and statements immediately after the incident. Because the child was the only eyewitness to the actions of the appellant, her credibility was critical to the state’s proof of the charges. The counselors’ testimony gave significant additional weight and credibility to the child’s testimony. As this court noted in Weatherford v. State, 561 So.2d 629, 633 (Fla. 1st DCA 1990), “[t]o treat this inadmissible hearsay as merely cumulative would ignore the reality of the effect of repeated assertions of a fact on the minds of the jurors.”

On remand, the trial court might very well determine that the evidence offered by the state is admissible after complying with the requirements of section 90.803(23). Nonetheless, the child hearsay evidence was clearly inadmissible without a definitive ruling on the defense’s objections thereto, under the procedures required by section 90.803(23) or some other statutory hearsay exception.

The conviction and sentence in case 2009 CF 002384 is reversed and the case is remanded for new trial.

DAVIS, and VAN NORTWICK, JJ., concur.


text:
    Steven Charles SELF, Petitioner, v. Lawanna Christina SELF, Respondent.
    No. 1D11-5835.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2012.
    Joseph L. Mannikko, and E. Barbara Baris of Mannikko & Baris, Macclenny, for Petitioner.
    Hugh Fish, Jr., Macclenny, for Respondent.
   PER CURIAM.

DENIED. See R.M.C. v. D.C., 77 So.3d 234, 2012 WL 29155 (Fla. 1st DCA 2012).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Thomas David AHRENS, Petitioner, v. Cheyanna Marie FUSSELL, Respondent.
    No. 1D11-5768.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2012.
    Joseph L. Mannikko, and E. Barbara Baris of Mannikko & Baris, Macclenny, for Petitioner.
    H. Leon Holbrook, III of Blalock Hol-brook & Akel, Jacksonville, for Respondent.
   PER CURIAM.

DENIED. See R.M.C. v. D.C., 77 So.3d 234, 2012 WL 29155 (Fla. 1st DCA 2012).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Tonya THOMPSON, Petitioner, v. ESTATE OF David F. THOMPSON, Respondent.
    No. 1D11-6030.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2012.
    Joseph L. Mannikko, and E. Barbara Baris of Mannikko & Baris, Macclenny, for Petitioner.
    Jeffrey A. Cramer of The Cramer Law Firm, Jacksonville, and Phyllis M. Rosier, Eighth Judicial Circuit Court Judge, Starke, for Respondent.
   PER CURIAM.

DENIED. See R.M.C. v. D.C., 77 So.3d 234, 2012 WL 29155 (Fla. 1st DCA 2012).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Timothy Lee FOLSOM, Petitioner, v. Christina Leann FOLSOM, Respondent.
    No. 1D11-6031.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2012.
    Joseph L. Mannikko, and E. Barbara Baris of Mannikko & Baris, Macclenny, for Petitioner.
    Frank E. Maloney, Jr., Macclenny, and Phyllis M. Rosier, Eighth Judicial Circuit Court Judge, Starke, for Respondent.
   PER CURIAM.

DENIED. See R.M.C. v. D.C., 77 So.3d 234, 2012 WL 29155 (Fla. 1st DCA 2012).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Gary P. VANLOOVEN, Petitioner, v. Leslie A. VANLOOVEN, Respondent.
    No. 1D11-6032.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2012.
    Joseph L. Mannikko, and E. Barbara Baris of Mannikko & Baris, Macclenny, for Petitioner.
    Matthew L. Rhodes, Assistant Public Defender, Callahan, and Phyllis M. Rosier, Eighth Judicial Circuit Court Judge, Starke, for Respondent.
   PER CURIAM.

DENIED. See R.M.C. v. D.C., 77 So.3d 234, 2012 WL 29155 (Fla. 1st DCA 2012).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Alfonso Caro RUBIO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1464.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    James S. Purdy, Public Defender, and Steven N. Gosney, 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.
   PER CURIAM.

AFFIRMED. See Gonzales v. State, 993 So.2d 55, 58 (Fla. 5th DCA 2008).

GRIFFIN, TORPY and LAWSON, JJ., concur.


text:
    Timothy Byron HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1410.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

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

ORFINGER, C.J., MONACO and COHEN, JJ., concur.


text:
    Edith SWANSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2587.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

ORFINGER, C.J., MONACO and COHEN, JJ., concur.


text:
    Eugene J. HARRIS, II, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4367.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    Eugene J. Harris, II, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

GRIFFIN, MONACO and EVANDER, JJ., concur.


text:
    Jamal Kendrick ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4386.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    Jamal K. Robinson, Gainesville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

ORFINGER, C.J., MONACO and EVANDER, JJ., concur.


author: STEVENSON, J.

text:
    Jerrold JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3289.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant, Jerrold Jackson, appeals his conviction for trafficking in cocaine in an amount of 200 grams or more, but less than 400 grams, and possession of cannabis, in an amount of twenty grams or less. Defendant was sentenced to fifteen years with a seven-year mandatory minimum on the cocaine charge and to time served on the misdemeanor possession of marijuana. Because the State failed to establish that the weight of the cocaine was 200 grams or more, we reverse with instructions that this conviction be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly.

At Defendant’s trial, a police officer testified that he first came in contact with Defendant when he arrived at his residence to execute a search warrant. During the search, a substance that appeared to be powder cocaine was discovered. A canine was called to the scene and alerted to several locations throughout the residence.

A crime lab technician testified that she tested two items recovered from Defendant’s residence. Item one consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine.

Defendant moved for a judgment of acquittal, arguing that the State failed to meet its burden as to possession of cocaine in an amount exceeding 200 grams because no evidence was presented that the other seven baggies contained cocaine. The trial court denied the motion. A trial court’s denial of a motion for judgment of acquittal is reviewed de novo. See Guinan v. State, 65 So.3d 589, 593 (Fla. 4th DCA 2011). “Generally, a trial court should not grant a motion for judgment of acquittal unless, when viewed in a light most favorable to the State, the evidence does not establish a prima facie case of guilt.” Bussell v. State, 66 So.3d 1059, 1061 (Fla. 1st DCA 2011).

In Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988), the defendant’s conviction for trafficking in cocaine was reversed because the State failed to prove that he possessed twenty-eight grams or more of cocaine where only two of ninety-two separately-packaged packets were tested. Id. at 1238. While the total weight of the ninety-two packets exceeded twenty-eight grams, the two packets that were tested weighed less than that amount. Id. The Third DCA reasoned that:

[A] visual examination of untested packets of this weight is insufficient to convict because the white powder contained therein may be milk sugar or any one of a vast variety of other white powdery chemical compounds not containing cocaine. Moreover, the fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have a similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.

Id. at 1239-40.

In this case, the State failed to meet its burden under Ross, where only one of eight baggies was tested. See also Safford v. State, 708 So.2d 676, 677 (Fla. 2d DCA 1998) (in reliance on Ross, reversing conviction for trafficking in cocaine of an amount exceeding twenty-eight grams, where State failed to test forty separately-packaged foils of cocaine powder). We also note that the circumstantial evidence of weight presented by the State was similarly insufficient to meet its burden. See Pama v. State, 552 So.2d 309, 311 (Fla. 2d DCA 1989) (“The state may prove the identity of a controlled substance by circumstantial evidence such as the substance’s appearance, odor, and packaging, by the circumstances under which the substance was seized, ...; the manner by which the substance was being transported, a person’s on-the-scene remarks identifying the substance, ...; and circumstances surrounding the sale or use of the substance.”) (citations omitted). The police officer testified that Defendant admitted to having “approximately a quarter kilogram of cocaine inside of the residence” and that he “normally purchases a quarter kilogram of powder cocaine every two weeks” for which he “pays $2,500.” The police officer explained that the Defendant stated that he cooked half into crack cocaine and kept the other half as powder. Finally, in addition to her testimony about testing the powdery substance, the chemist observed that each baggie was “packaged the same way with the same type of material inside.” However, this evidence did not establish that each baggie contained cocaine, so as to meet the weight requirement of Defendant’s conviction. Defendant’s admissions to the police gave only an approximation of the weight Defendant believed he had in his residence. Further, reliance on the chemist’s testimony that each baggie appeared to contain the same substance is specifically prohibited by Ross. For these reasons, it cannot be a substitute for evidence that the powdery substance in each separate baggie was cocaine. See also Sheridan v. State, 850 So.2d 638, 640-41 (Fla. 2d DCA 2003) (circumstantial evidence that two baggies field-tested positive for the presence of methamphetamine and the defendant’s admission that he was in possession of an ounce of methamphetamine, was insufficient evidence of weight where State failed to test each of the two separate baggies).

Accordingly, Defendant’s conviction is reversed with directions that the conviction for trafficking in cocaine in an amount of 200 grams or more, but less than 400 grams, be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly. See § 893.135(l)(b)l.a., Fla. Stat. (2007); Ross, 528 So.2d at 1241.

Reversed and remanded.

MAY, C.J., and CIKLIN, J., concur.


text:
    Cheryl Ann BEYER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-3842.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Barry G. Feingold, Coral Springs, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Cheryl Ann Beyer petitions for a writ of prohibition seeking to prevent the Bro-ward circuit court from prosecuting her in two 1988 cases: 88-16215CF10A — (1) obtaining property by worthless check and (2) grand theft; and 88-11477CF10A — (1) uttering a forged instrument; (2) forgery; and (3) grand theft. Petitioner allegedly committed the offenses in February 1988, more than twenty-two years ago. The State filed the informations charging petitioner in these cases in August and June 1988 respectively. She was never arrested on a capias or served with a summons. She alleges that she was never given notice, constructive or actual, of the pending charges and that she learned of the pending charges for the first time in 2010 during a background check to obtain her real estate license.

From May until December 1988, petitioner was in federal custody in the South Florida region awaiting transport to California on fraud charges. The probable cause affidavit reflects that the State was aware that petitioner was in federal custody during this time. She remained in federal custody until September 1991 when she was released. Florida lodged no holds or detainers, and the State made no attempt to serve her with process during this time.

Petitioner alleges that from-September 1991 to 2006, she lived in California and has lived in Colorado since 2006. She has maintained a driver’s license, purchased homes, applied for and received a marriage license, married and started a family, maintained employment, and regularly paid her taxes. When she learned of the pending charges, she retained counsel who moved to dismiss based on the statute of limitations because the capias was not served within a reasonable time and because the State failed to conduct a diligent search.

After receiving a written response from the State, the trial court denied the motions without holding an evidentiary hearing. The State erroneously argued that State v. Perez, 952 So.2d 611 (Fla. 2d DCA 2007), presented identical facts and that the statute of limitations was tolled because petitioner was continuously out of the state and in the custody of another sovereign. Petitioner filed motions requesting an evidentiary hearing and explaining that the statutes relied on to deny her motion had been amended in 1997 and that she was entitled to application of the statute in effect at the time of her alleged offenses which did not contain the same tolling provisions.

The court denied the motion and refused to hold a hearing. This petition follows.

Analysis

A petition for writ of prohibition is a proper remedy to prevent a prosecution that is barred by expiration of the statute of limitations. Lett v. State, 837 So.2d 614 (Fla. 4th DCA 2003). The statute in effect at the time of the alleged offense controls. Id. at 615 (citing State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000)).

Section 775.15, Florida Statutes (1987), applies to these February 1988 offenses. Pursuant to this statute, a prosecution for a second or third-degree felony had to be commenced within three years after it was committed. § 775.15(2)(b), Fla. Stat. (1987).

A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

§ 775.15(5), Fla. Stat. (1987).

Section 775.15(6), Florida Statutes (1987), provides:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

Id. In 1997, subsection (5) was substantially revised and the following language was added: “The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.” § 775.15(5)(b), Fla. Stat. (1997); Ch. 97-90, § 1, Laws of Fla. Before the 1997 amendment, the law was that the statute of limitations runs even when the defendant is in the custody of another sovereign. Brown v. State, 674 So.2d 738 (Fla. 2d DCA 1995).

The trial court in this case, without holding a hearing, denied the motion to dismiss based on the State’s response which relied on the above language in the present version of the statute. § 775.15(4)(b), Fla. Stat. (2010). See also § 775.15(5), Fla. Stat. (2010) (providing for tolling where a defendant “has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state”).

In its response to this court, the State concedes that the statute in effect at the time of the offense controls. The State agrees that, when the charges were filed in 1988, petitioner was in federal custody. The State does not dispute petitioner’s allegations that she resided in California and then Colorado. The State argues that the fact petitioner was in federal custody outside the State from December 1988 to September 1991 and then continuously absent from the State should be considered.

“[Statutes of limitation in criminal cases are to be construed liberally in favor of the accused.” Reino v. State, 352 So.2d 853, 860 (Fla.1977) (citing Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970)), receded from on other grounds, Perez v. State, 545 So.2d 1357, 1358 (Fla.1989). The Court explained in Toussie:

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.

397 U.S. at 114-15, 90 S.Ct. 858.

The only basis argued by the State for tolling is petitioner’s continuous absence from the State. Section 775.15(6), Florida Statutes (1987), allowed extension of the period of limitation based on continuous absence from the State but the period could not be extended by more than three years. The maximum period of extension allowed under the applicable statute expired long ago. Petitioner is entitled to discharge.

Petition granted.

MAY, C.J., POLEN and CONNER, JJ., concur.


text:
    Lurana C. HILLARD, Appellant, v. The SCHOOL BOARD OF ST. LUCIE COUNTY, and Michael J. Lannon, as Superintendent of Schools for St. Lucie County School District, Appellees.
    No. 4D10-1790.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Mark F. Kelly of Kelly & McKee, P.A., Tampa, for appellant.
    J. David Richeson and Elizabeth Coke of Richeson & Coke, P.A., Fort Pierce, for appellees.
   PER CURIAM.

We affirm the circuit court’s dismissal of this action for failure to exhaust administrative remedies, on the authority of Sch. Bd. of Flagler Cnty. v. Hauser, 293 So.2d 681 (Fla.1974). Like the teacher in Hauser, appellant claimed that she had a continuing contract of employment in the school district, while the appellee school board claimed that she was retained on an annual contract, to which she was not reappointed. Also similar to Hauser, appellant sought declaratory relief in the circuit court on the basis of her claim to a continuing contract. In Hauser, our supreme court held that, under these circumstances, the teacher was required to exhaust administrative remedies by seeking a hearing under the Administrative Procedures Act. 293 So.2d at 683. We are bound by this precedent. However, as in Hauser, our affirmance is without prejudice to appellant seeking the administrative hearing to which she was entitled.

Affirmed.

WARNER, POLEN, JJ„ and EHRLICH, MERRILEE, Associate Judge, concur.


text:
    BRISBEN FAMILY LIMITED PARTNERSHIP, a Georgia limited partnership, Appellant/Cross-Appellee, v. Neils P. CHRISTENSON and Linda F. Christenson, Appellee/Cross-Appellants.
    Nos. 4D10-3199, 4D10-4714.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    L. Wesley Nichols of L. Wesley Nichols, P.A., Palm Beach Gardens, for appel-lanl/cross-appellee.
    Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, and Leif J. Grazi of Law Offices of Grazi & Gianno, Stuart, for appellees/cross-appellants.
   PER CURIAM.

Although we asked the parties to file supplemental briefs on the issue of “invited error,” we hold that, under the circumstances of this case, appellant was not required to re-raise issues previously rejected by the trial court in a motion for rehearing or, in this case, in response to appellees’ motion for rehearing. On the merits, we have considered the issues raised on appeal and on cross-appeal, and find no points of reversible error.

Affirmed.

POLEN, STEVENSON and TAYLOR, JJ., concur.


text:
    Cortina WOBBLETON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3524.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

      No appearance for appellee.
   PER CURIAM.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), our review of the record has revealed a scrivener’s error in the written sentence.

We reverse and remand with directions for the trial court to correct the written sentence in lower court case number 432009CF000449A. The trial court orally pronounced sentences on counts I and II of five years imprisonment both to run concurrently, but the written sentences reflect an additional ten-year period of probation. This must be corrected to reflect the oral pronouncement. Gallardo v. State, 991 So.2d 997 (Fla. 4th DCA 2008).

Reversed and remanded with directions.

MAY, C.J., HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Razek TURKMANY, George Turkmany, Nadima Hallak (f/k/a Nadima Turkmany), Josephine Wilcox (f/k/a Josephine Turkmany), Anthony Turkmany, Badia Turkmany and Albert Turkmany, Appellants, v. CITY OF WEST PALM BEACH, Appellee.
    No. 4D10-3532.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Richard W. Glenn of the Law Office of Richard W. Glenn, Palm Beach Gardens, for appellants.
    Claudia M. McKenna, City Attorney, and Kimberly L. Rothenburg, Assistant City Attorney, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Gonzalez v. Metro. Dade Cnty. Pub. Health Trust, 651 So.2d 673 (Fla.1995).

POLEN, STEVENSON and TAYLOR, JJ., concur.


text:
    KEYBANK NATIONAL ASSOCIATION, INC., Appellant, v. PASSPORT MARINE, INC., a Florida corporation and Arthur J. Grossman, Appellees.
    No. 4D11-10.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Alan G. Kipnis and Jeffrey A. Backman of Arnstein & Lehr LLP, Fort Lauder-dale, for appellant.
    Arthur C. Koski of Law Offices of Arthur C. Koski, P.A., Boca Raton, for appel-lee Arthur J. Grossman.
   PER CURIAM.

Appellant, Keybank National Association, timely appeals a final judgment in a replevin action in favor of appellee, Arthur Grossman. Keybank had filed a complaint for replevin against Grossman, demanding possession of a boat. During the pen-dency of the case, Keybank moved for prejudgment possession of the boat. Section 78.067, Florida Statutes, provides the process for prejudgment possession of property. Despite the fact that the hearing was not noticed as a final hearing on the matter, the trial court entered a final judgment concluding that it had heard all the evidence and could make a final ruling, over Keybank’s strenuous objection that it was entitled to a further trial on the merits of its complaint. Entering a final judgment based upon the prejudgment hearing was error. See Brown v. Reynolds, 872 So.2d 290, 296 (Fla. 2d DCA 2004). Brown succinctly states the relevant procedure:

At a hearing on an order to show cause, the court is directed by section 78.067(2) to “make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” This determination is to be based on the “probable validity” of the plaintiffs claim against the defendant and is preliminary to a final adjudication of the claims of the parties. JB Int’l, Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1149 (Fla. 5th DCA 2008). If the plaintiff fails to establish the probable validity of the replevin claim at the hearing on the order to show cause held pursuant to section 78.067, dismissal of the complaint after the hearing is premature because the purpose of the hearing is only to determine who should have possession of the claimed property pending the final hearing. Gill v. Shively, 320 So.2d 415, 416 (Fla. 4th DCA 1975). Although the trial court may consider the merits of the plaintiffs claim insofar as may be necessary to a determination of whether the writ should issue prior to final judgment, “the trial court’s ruling has no bearing on the rights of the parties when the matter is tried on the merits, nor does it bind the court at the final hearing or preclude a subsequent final adjudication dissolving the writ and ordering the return of the property.” JB Int’l, Inc., 840 So.2d at 1150.
Whatever the result of the hearing on the order to show cause, the case proceeds as any other civil action would, and the trial court must still make a final adjudication of the claims of the parties in accordance with the Florida Rules of Civil Procedure.

Id. at 296 (emphasis supplied) (footnote omitted). In Brown, the court reversed the trial court’s dismissal of the complaint for replevin entered, as in this case, after hearing on the prejudgment motion for possession. Similarly, we reverse the trial court’s dismissal of Keybank’s complaint. Keybank is entitled to a final hearing on the merits.

Reversed and remanded for further proceedings.

MAY, C.J., WARNER and GROSS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Larry DETOMBEUR, Appellee.
    No. 4D11-776.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Travis Dunnington, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Knipp v. State, 67 So.3d 376 (Fla. 4th DCA 2011).

MAY, C.J., HAZOURI and DAMOORGIAN, JJ., concur.


text:
    C.J.T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2624.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

C.J.T. is a minor who was fourteen years old when placed on juvenile probation for the misdemeanor offense of making a false report to a law enforcement officer of an alleged crime, in violation of section 817.49, Florida Statutes (2010). The trial court made CJ.T.’s term of probation indeterminate, not to exceed his nineteenth birthday. C.J.T. has preserved his argument that the disposition is illegal by first filing a timely motion to correct disposition error with the trial court, pursuant to Florida Rule of Juvenile Procedure 8.135(b). The trial court did not rule on the motion in time, so the motion is deemed denied. See Fla. R. Juv. P. 8.135(b)(1)(B).

Section 985.455(3), Florida Statutes (2010), provides, “Any commitment of a delinquent to the department must be for an indeterminate period of time ...; however, the period of time may not exceed the maximum term of imprisonment that an adult may serve for the same of-fense_” As we held in J.A. W. v. State, 873 So.2d 523, 524 (Fla. 4th DCA 2004), “The problem with the sentencing order in this case is that it could be interpreted as permitting commitment until the child reached the age of nineteen, well past the one-year maximum length of commitment for a first-degree misdemeanor.” Thus, we reverse the disposition order with instructions to the trial court to correct the sentence so it is clear that probation shall not exceed one year. The new disposition order shall be entered nunc pro tunc to the date of the original order.

Reversed and remanded with instructions.

CIKLIN, GERBER and CONNER, JJ., concur.


text:
    Elias ROSADO, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-3773.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Elias Rosado, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Elias Rosado petitions this court for a writ of prohibition seeking to disqualify the trial judge from presiding over Bro-ward County case numbers 06-10189CF10A and 06-18577CF10A because the judge did not timely rule on Rosado’s motion for disqualification. See Fla. R. Jud. Admin. 2.330(j); Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003). We grant the petition.

Rosado moved to disqualify the judge on August 4, 2011. A copy of the motion was served on the judge. It was received by the circuit court clerk for filing on August 8, 2011. Even if the judge did not receive the motion at the time it was filed, the record reflects that the judge has been aware of the motion since at least September 15, 2011, when he denied petitioner’s request for reassignment of the case based on the judge’s failure to timely rule on the motion to disqualify. See Tobkin v. State, 889 So.2d 120 (Fla. 4th DCA 2004).

In response to an order to show cause from this court, the state agrees that the motion to disqualify has not been ruled on and pursuant to rule 2.330(j) it should be deemed granted and these cases reassigned.

WARNER, GROSS and GERBER, JJ., concur.


text:
    James Jerome JORDAN, Petitioner, v. Kimberly Yvette BISHOP, individually and on behalf of R.S. and R.S., minors, Respondent.
    No. 1D11-2683.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.

      James Jerome Jordan, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1282 (Fla. 5th DCA 2000).

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.