text:
    Larry CHRISTIAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1711.
    District Court of Appeal of Florida, First District.
    March 26, 2009.
    Larry Christian, pro se, Appellant; Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Philip W. Edwards, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant appeals the sentence imposed by the court following an order granting a motion to correct a previous illegal sentence. Because the error in the previous sentence was not merely a ministerial or clerical error, the defendant was entitled to be present and represented by counsel at the resentencing hearing. See State v. Scott, 439 So.2d 219 (Fla.1983); McGough v. State, 876 So.2d 26 (Fla. 1st DCA 2004). The sentence imposed by the court is vacated and the case is remanded to the trial court for resentencing.

DAVIS, BENTON, and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    E.D.B., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-737.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The issue we consider is whether a trial court can retain jurisdiction over a juvenile beyond his nineteenth birthday to compel the payment of assessed costs. We conclude it cannot and reverse.

E.D.B. appeals the trial court’s entry of two orders on February 6, 2008, following a hearing on a take-into-custody order. One order related to E.D.B.’s juvenile case in 06-CJ-0001189, while the other order related to his juvenile case in 05-CJ-0004348. Both orders required E.D.B. to pay $30 per month toward the costs previously assessed in each case. Further, both orders extended the trial court’s jurisdiction over E.D.B. until the assessed costs were paid in full. E.D.B. appeals, arguing that the trial court lacked the authority to retain jurisdiction over him past his nineteenth birthday.

Section 985.0301, Florida Statutes (2007), addresses the circuit court’s jurisdiction in juvenile cases, providing in pertinent part:

(1) The circuit court has exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.
(5) (a) Notwithstanding ss. 743.07, 985.43, 985.433, 985.435, 985.439, and 985.441, and except as provided in ss. 985.465 and 985.47 and paragraph (f), when the jurisdiction of any child who is alleged to have committed a delinquent act or violation of law is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult.
(i) The court may retain jurisdiction over a child and the child’s parent or legal guardian whom the court has ordered to pay restitution until the restitution order is satisfied. To retain jurisdiction, the court shall enter a restitution order, which is separate from any disposition or order of commitment, on or prior to the date that the court’s jurisdiction would cease under this section. The contents of the restitution order shall be limited to the child’s name and address, the name and address of the parent or legal guardian, the name and address of the payee, the case number, the date and amount of restitution ordered, any amount of restitution paid, the amount of restitution due and owing, and a notation that costs, interest, penalties, and attorney’s fees may also be due and owing. The terms of the restitution order are subject to s. 775.089(5).

The State contends that the statute’s authority to extend jurisdiction for repayment of restitution encompasses outstanding cost assessments.

In construing a statute, “statutory language should be given its plain and ordinary meaning.” Williams v. Ergle, 698 So.2d 1294, 1296 (Fla. 5th DCA 1997). Section 985.0301(5)0) unambiguously provides that a “court may retain jurisdiction over a child and the child’s parent or legal guardian whom the court has ordered to pay restitution until the restitution order is satisfied” by entering “a restitution order, which is separate from any disposition or order of commitment, on or prior to the date that the court’s jurisdiction would cease under section [985.0301].” Further, “[t]he terms of the restitution order are subject to [section] 775.089(5),” Florida Statutes. § 985.0301(5)(i). Section 775.089(5) addresses the mechanism for enforcement of a restitution order:

An order of restitution may be enforced by the state, or by a victim named in the order to receive the restitution, in the same maimer as a judgment in a civil action. The outstanding unpaid amount of the order of restitution bears interest in accordance with s. 55.03, and, when properly recorded, becomes a lien on real estate owned by the defendant. If civil enforcement is necessary, the defendant shall be liable for costs and attorney’s fees incurred by the victim in enforcing the order.

Finally, section 985.0301(5)(i) states what must be included in a restitution order. This includes “a notation that costs, interest, penalties, and attorney’s fees may also be due and owing.” Reading sections 985.0301(5)(i) and 775.089(5) together, we conclude that costs, interests, penalties, and attorney’s fees under section 985.0301(5)® refers to the interest, costs and attorney’s fees associated with the enforcement of a restitution order under section 775.089(5).

Because section 985.0301(5) only allows jurisdiction to be retained to enforce orders of restitution and does not address the issue of retaining jurisdiction to enforce an order of assessed costs, it necessarily excludes it from its purview. Ex-pressio minis est exclusio alterius} Nor is there any alternative authority for a trial court to retain jurisdiction to enforce orders of assessed costs. Therefore, the trial court erred by retaining jurisdiction over E.D.B., past his nineteenth birthday, in order to enforce the assessed costs provisions in its orders dated February 6, 2008.

We understand the trial judge’s attempt to enforce the assessment of costs. The concept of responsibility for one’s actions is a fundamental tenet of the juvenile justice system. However, this issue is best left for the Legislature to address.

REVERSED and REMANDED.

GRIFFIN, LAWSON and COHEN, JJ., concur.

      . The record indicates that E.D.B. owed $510 and $990 in assessed costs in cases 06-CJ-0001189 and 05-CJ-0004348, respectively. He turned nineteen shortly after the entry of the order in question.

        . Expressio unius est exclusio alterius is "[a] canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.” Black’s Law Dictionary 602 (7th ed.1999).


text:
    Gloria Jean GALBRAITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2809.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant raises two points on appeal, only one of which merits discussion. She contends that the written judgment of conviction contains a scrivener’s error in that she should have been sentenced as an habitual felony offender instead of an habitual violent felony offender. The State concedes error. We affirm Appellant’s conviction but remand this case to the trial court to correct the scrivener’s error in the judgment of conviction.

AFFIRMED and REMANDED.

TORPY, EVANDER and COHEN, JJ., concur.


text:
    Thomas L. CRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4240.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.
    Thomas Cramer, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the denial of Thomas L. Cramer’s motion to correct sentence filed under Florida Rule of Criminal Procedure 3.800(a). In reviewing the sentencing documents, we discovered a scrivener’s error in the judgment of Cramer’s Case No. 99-2987. Although the transcript of the sentencing hearing clearly indicates that the sentence in Case No. 99-2987 was to be served consecutively to the other sentences imposed at the same time, the written judgment fails to reflect that fact. On remand, a corrected sentencing document shall be prepared and a copy forwarded to the Department of Corrections.

AFFIRMED and REMANDED.

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


text:
    James G. EBERHEART, Petitioner, v. STATE of Florida, Respondent.
    No. 5D08-4487.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.
    James G. Eberheart, Lake Butler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of a circuit court order which denied his rule 3.800(c) motion to mitigate his sentence as untimely. The circuit court noted that petitioner was sentenced on February 12, 2008, but did not file his 3.800(c) motion to mitigate sentence until November 13, 2008, 274 days later. The court, therefore, ruled that it was without jurisdiction to entertain the motion. We grant the writ.

The circuit court overlooked the fact that petitioner directly appealed his sentence and this Court affirmed on October 7, 2008. See Eberheart v. State, 992 So.2d 270 (Fla. 5th DCA 2008). The mandate issued on October 24, 2008. Florida Rule of Criminal Procedure 3.800(c) provides that a court may reduce or modify a sentence within sixty days after its imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence. Petitioner’s 3.800(c) motion was filed within sixty days of our mandate.

Although a defendant may not appeal an order denying a rule 3.800(c) motion to mitigate or modify a sentence where the motion was considered on the merits, cer-tiorari review is available if the trial court determines that it lacks jurisdiction to rule on the rule 3.800(c) motion. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999); Evans v. State, 691 So.2d 63 (Fla. 5th DCA 1997).

In response to this Court’s show cause order, the state concedes that the circuit court had jurisdiction to consider the motion to mitigate sentence on the merits. We, therefore, grant the petition for writ of certiorari, quash the order and remand for further proceedings. See Ukaj v. State, 969 So.2d 1172 (Fla. 5th DCA 2007).

WRIT GRANTED, ORDER QUASHED.

PALMER, C.J., GRIFFIN and MONACO, JJ., concur.

      . See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).


text:
    Luis GARZA, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-620.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.
    Luis M. Garza, Raiford, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Luis M. Garza appeals the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion, concluding that Garza’s claims were raised in an earlier motion for postconviction relief.

While the trial court is correct that Garza’s motion would be barred as successive if it raised the same claims as those raised in an earlier rule 3.850 motion, it did not attach any portion of the record to its order. Consequently, the record before this Court does not demonstrate that the motion is successive. Therefore, we remand this case to the trial court for attachment of those portions of the record conclusively refuting Garza’s claims.

REMANDED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    C.J., Mother of I.J., a Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D08-3729.
    District Court of Appeal of Florida, First District.
    March 27, 2009.
    C.J., pro se, Appellant.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

ALLEN, WOLF, and DAVIS, JJ., concur.


text:
    Patrick John WITCHER, a/k/a, David Simonetti, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1018.
    District Court of Appeal of Florida, First District.
    March 27, 2009.

      Patrick John Witcher, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R. App. P. 9.141(c)(4)(A).

WOLF, KAHN, and BENTON, JJ., concur.


text:
    Paul CARRY, Jr. and Arthur Graham, Trustee of the Audiss 4225 Trust, Appellants, v. Charles STALLWORTH and Candy Stallworth, Appellees.
    No. 1D09-0848.
    District Court of Appeal of Florida, First District.
    March 30, 2009.
    Stephen M. Guttmann, Pensacola, for Appellants.
    Heather F. Lindsay, Milton, for Appel-lees.
   PER CURIAM.

DISMISSED. Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1, 3 (Fla.1972).

WOLF, KAHN, and BENTON, JJ., concur.


text:
    JAMES DEPAUL ENTERPRISES, INC. and The Hartford Protocol Communications, Inc., Appellants, v. James CAVANA, Appellee.
    No. 1D09-0379.
    District Court of Appeal of Florida, First District.
    March 31, 2009.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, L.L.P., Sarasota, for Appellants.
    Bill B. Berke, Cape Coral, for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this court’s January 28, 2009, order to show cause, Appellants’ appeal is DISMISSED for lack of jurisdiction. See Metellus v. State, 900 So.2d 491 (Fla.2005) (noting a jurisdictional rule cannot be altered by the court or by agreement of the parties); see also Buscaino v. Yarborough, 935 So.2d 635 (Fla. 1st DCA 2006) (dismissing untimely appeal for lack of jurisdiction).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    F.C., Father of T.L., minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1B08-4315.
    District Court of Appeal of Florida, First District.
    March 31, 2009.
    Edith E. Sheeks, Regional Civil Appellate Counsel, and Octavia Edwards, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, First Region, Tallahassee, for Appellant.
    Jeffrey Dana Gillen and Acelo I. Pedro-so, Department of Children and Families, Children’s Legal Services, for Appellee.
   PER CURIAM.

Appellant F.C. appeals an order terminating his parental rights as to the child T.L. He argues that there was error in terminating his parental rights because the evidence established that the Department of Children and Families failed to meet its statutory burden to perform a diligent search. The Department has filed an amended concession of error on this issue which we find to be proper. Accordingly, the final judgment is reversed as it relates to F.C. and the child T.L. and the cause is remanded to the circuit court for further proceedings.

REVERSED.

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


text:
    Arlene SINGLETON, Appellant, v. REALTY LAND INVESTMENTS, INC., as assignee and successor in interest to Arlene Singleton, an individual, Sayar Enterprises, Inc. d/b/a Southern Development Corporation, a Florida corporation, and John Blanchett, an individual Appellees.
    No. 1D08-6069.
    District Court of Appeal of Florida, First District.
    March 31, 2009.

      Larry T. Griggs, St. Augustine, for Appellant.
    David S. Wainer, III of Ford, Miller & Wainer, P.A., Jacksonville for Appellees and John Blanchett, pro se.
   PER CURIAM.

Arlene Singleton appeals an order entitled “Judgment by Default” in which the trial court found that Singleton had not filed any responsive pleading within the time required and that the clerk had entered a default. The decretal portion of the order entered a default judgment against Singleton as to liability. The order reserved jurisdiction to determine the amount of damages. This court sua sponte issued an order directing appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. In response, appellant asserts only that the order appealed determined that appellant is liable to appellees for their damages. Appellant’s response fails to establish a basis for our jurisdiction.

In 2000, Florida Rule of Appellate Procedure 9.130 was amended to remove former section 9.130(a)(3)(C)(iv), which had allowed an appeal of a nonfinal order that determined the issue of liability in favor of a party seeking affirmative relief. See Amendments to Fla. R.App. P., 780 So.2d 834, 838 (Fla.2000). No remaining section of Rule 9.130 would appear to allow for an immediate appeal of the instant order. Further, because the instant order does not bring an end to the litigation below, this order is not final. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming traditional test of finality that a “final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary.”); Hernando County v. Leisure Hills, Inc., 648 So.2d 257 (Fla. 5th DCA 1994) (holding that issue of damages is so intertwined with substance of a claim as to render an order reserving jurisdiction to determine damages nonfinal).

DISMISSED.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: FULMER, Judge.

text:
    Robert L. ELLERBY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-664.
    District Court of Appeal of Florida, Second District.
    April 1, 2009.

      Robert L. Ellerby, pro se.
   FULMER, Judge.

Robert L. Ellerby appeals the summary denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the trial court to hold an evidentiary hearing on the claim that El-lerby’s counsel rendered ineffective assistance by not moving to dismiss the charge of failing to register as a sexual offender. In all other respects, we affirm the denial of Ellerby’s motion without further discussion.

In July 2007, Ellerby entered a no contest plea in two lower court cases to the charges of failure to register as a sexual offender and driving while license suspended or revoked as a habitual offender. He was sentenced to 52.65 months on each count concurrently. He did not file a direct appeal.

In ground one of his postconviction motion, Ellerby challenges the conviction for failing to register as a sexual offender. He claims that his counsel was deficient in not moving to dismiss the charge, arguing that he was not subject to the registration requirement because he served in excess of his sentence imposed for the predicate sexual conviction and that if he had been released at the proper time, he would not have had to register under the effective date of the statute.

He alleges that on May 3, 1995, he was sentenced to thirty-six months in prison for committing a lewd and lascivious act, occurring on July 25, 1994. He was released July 10, 1997, on conditional release, which was to have expired on August 7, 1997. However, he was arrested on August 8, 1997, pursuant to a warrant issued August 1, 1997, for violating the terms of the conditional release. He was finally released on November 13, 1997.

On December 14, 2005, he was arrested for failure to register as a sexual offender. The governing statute, section 943.0435(1), Florida Statutes (2005), provides in part: (a) Sexual offender means a person who:

1. Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: ... s. 800.04 ... and....
2. Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense de-seiibed in subparagraph 1.

§ 943.0435(l)(a)(l)-(2) (emphasis added).

Ellerby argues that his counsel should have moved to dismiss the charge because although he was released from prison on November 13, 1997, after the October 1, 1997, triggering date in the statute, he should have been released earlier, in September 1997. He attaches correspondence from Department of Corrections officials to support his contention that he was held for the control release violation past the expiration of his sentence.

In denying this claim, the postconviction court stated, without citation to authority, that counsel did not have a basis for filing a motion to dismiss and that absent any correction by the Department of Corrections, Ellerby was required to register. We conclude that the postconviction court erred in denying this claim and that Eller-by should be afforded an evidentiary hearing, where he should be given the opportunity to prove his allegations.

Our conclusion rests upon the supreme court’s analysis of an analogous claim in State v. Atkinson, 831 So.2d 172 (Fla.2002). In Atkinson, the supreme court limited the Jimmy Ryce Act (Ryce Act) to those individuals who were in lawful custody on its effective date. The supreme court reasoned that although “the Ryce Act applie[d] ‘to all persons currently in custody who have been convicted of a sexually violent offense[,]’ ... [i]t would be contrary to the basic tenets of fairness and due process ... to interpret [the Ryce Act] as requiring only actual custody.” 831 So.2d at 173-74. The supreme court held that the Ryce Act was limited to persons who were in lawful custody on its effective date. Id. at 174. Thus, where Atkinson was entitled to resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), and his new prison sentence would have expired on June 25, 1998, even without the award of any gain time, the trial court was without jurisdiction to entertain the Ryce Act commitment petition, even though Atkinson was in actual custody on the effective date of the Act, January 1,1999. Id. at 173-74.

We recognize that Newsom v. State, 869 So.2d 619 (Fla. 5th DCA 2004), involving a direct appeal from a conviction for failing to register as a sexual offender, might suggest a different result in the present case. However, we find Neivsom to be distinguishable. In Newsom, the defendant was charged with violating the requirements of section 943.0435, Florida Statutes (1998), and he filed a motion to dismiss, arguing that the statute did not apply to him because, but for an illegal sentence, he would have been released from prison prior to the enactment of section 943.0435. Id. at 620. The Fifth District affirmed the denial of the motion to dismiss. We find it significant that the Newsom court distinguished Atkinson in part because Newsom relied on gain time to recalculate what should have been his release date. In the present case, however, it does not appear that Ellerby is relying on gain time to demonstrate that he was mistakenly held past his lawful release date. Thus we distinguish Newsom and rely on Atkinson to conclude that Ellerby has alleged a prima facie case of ineffective assistance of counsel because based on his allegations, a motion to dismiss his charge would have been justified.

Affirmed in part, reversed in part, and remanded with directions.

DAVIS and VILLANTI, JJ., Concur.

      . §§ 394.910-.930, Fla. Stat. (2000).


text:
    Gerald D. AMISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5928.
    District Court of Appeal of Florida, Second District.
    April 1, 2009.
    Bob Dillinger, Public Defender, and Gary 0. Welch, Assistant Public Defender, Dade City, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn Elizabeth Adams, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Gerald D. Amison, Jr., pleaded no contest to possession of marijuana in excess of twenty grams, reserving the right to appeal the denial of his motion to suppress evidence. We reverse because the trial court erred in concluding that, under the circumstances, no reasonable suspicion of unlawful activity was required for the stop of Amison’s vehicle.

Officer Wolff, with the Florida Fish and Wildlife Conservation Commission, testified that he was on resource patrol in the Richloam Wildlife Management area at 7:30 p.m. on April 29, 2007. It was around dusk. He observed Amison’s vehicle, a pickup truck, near a river, backing away. The officer initiated his blue lights to stop the truck in order to conduct “a resource inspection.” As the officer approached Amison’s vehicle on foot, he smelled marijuana coming from the vehicle. Amison and a passenger were taken out of the vehicle, handcuffed, and searched. They admitted to having smoked “a joint” about an hour before. Officer Wolff searched the vehicle and located a bag of marijuana in the toolbox in the bed of Amison’s truck.

On cross-examination, Officer Wolff indicated that he had not observed Amison participating in any regulated activities, such as hunting or fishing. He did not see any guns or fishing poles. Nor did Officer Wolff have reason to believe that Amison was involved in criminal activity or violating traffic laws. The officer believed he had the authority to detain anyone for a regulatory inspection in the wildlife management area.

The State bore the burden of demonstrating the stop was reasonable. See Hilton v. State, 961 So.2d 284, 296 (Fla.2007) (“When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable”). In arguing that the officer had the authority to stop the vehicle for a resource inspection, the State relied on an administrative code provision, a statutory provision, and a federal district court case from 1970. The first authority cited was Florida Administrative Code Rule 68A-4.006 (2007), “Obligation to Permit Search or Inspection”:

It is hereby made the duty of every person participating in the privileges of taking or possessing wildlife, freshwater fish or parts thereof as authorized by these rules to allow wildlife officers to ascertain whether the requirements of these rules are being followed. No person shall refuse or obstruct such inspection by any authorized officer of the state.

The State next cited section 372.121, Florida Statutes (2007), entitled “Control and management of state game lands,” which provides in part:

(1) The Fish and Wildlife Conservation Commission is authorized to make ... and enforce all reasonable rules and regulations necessary for the protection, control, operation, management, or development of lands ... owned by ... the commission for fish or wildlife management purposes, including but not being limited to the right of ingress and egress.

The State also provided the court with Davis v. Reynolds, 319 F.Supp. 20 (N.D.Fla.1970). In Davis, the plaintiff sought injunctive and declaratory relief “to have Rule 165-8.02(11) promulgated by the Florida Game and Fresh Water Fish Commission declared unconstitutional as viola-tive of his Fourth Amendment right against unreasonable searches and seizures.” 319 F.Supp. at 21. The text of the rule at issue is not recited, but it purportedly gave the wildlife officers authority to stop the plaintiffs vehicle in a game management preserve to check the vehicle for dogs and guns. Id. at 22. A three-judge panel was convened to determine whether the plaintiffs complaint presented a substantial constitutional question and, if so, to make the appropriate determination of law. Id. at 21-22. The panel determined that “this cause is not one presenting a substantial constitutional question” and, therefore, denied injunctive relief and remanded the cause to the single judge for determination and disposition of plaintiffs independent federal claim for damages. Id. at 23-24. In reaching its decision to deny injunctive relief, the panel examined the challenged Florida regulation and stated, in part:

[T]he regulation presently in force does not authorize unreasonable searches and ... is necessary to the enforcement of Florida conservation laws.... [T]he Fourth Amendment standards applicable to this factual situation are lower than those applicable in a prosecutory action. Thus, plaintiffs presence in the game management area diminished his right to privacy when the [S]tate’s need to conserve natural resources is considered.

Id. at 23.

Although the State does not cite to or rely on Davis in its argument on appeal, the trial court did rely on Davis in reaching its decision to deny Amison’s motion to suppress. At the conclusion of the hearing, the trial court correctly stated that there was no reasonable suspicion for the stop of Amison’s vehicle but also stated that “[I] am finding under the [Davis ] decision and under the reasoning of it being a wetlands, that the check for the materials was appropriate.” In the written order denying the motion to suppress, the court stated that the officer “had justification for a resource inspection” based on observing Amison driving from one of the fishing streams on the Management Area. We disagree. Neither the trial court nor this court is bound by the rulings of lower federal courts. See State v. Dwyer, 332 So.2d 333, 335 (Fla.1976); Pignato v. Great W. Bank, 664 So.2d 1011, 1015 (Fla. 4th DCA 1995). Further, we conclude that the operative Florida statutes do not grant the broad authority to wildlife officers that the federal three-judge panel concluded was conferred by the regulation it examined.

Section 372.07, Florida Statutes (2007), governs the police powers of wildlife officers and provides in pertinent part:

(1) The Fish and Wildlife Conservation Commission ... and each wildlife officer are constituted peace officers with the power to make arrests for violations of the laws of this state when committed in the presence of the officer or when committed on lands under the supervision and management of the commission. The general laws applicable to atrests by peace officers of this state shall also be applicable to said director, assistants, and wildlife officers ....
(2) Such officers shall have power and authority to enforce throughout the state all laws relating to game, nongame birds, fish, and fur-bearing animals and all rules and regulations of the Fish and Wildlife Conservation Commission relating to wild animal life, marine life, and freshwater aquatic life, and in connection with said laws, rules, and regulations, in the enforcement thereof and in the performance of their duties thereunder, to:
(e) Arrest upon probable cause without warrant any person found in the act of violating any of the provisions of said laws or, in pursuit immediately following such violations, to examine any person, boat, conveyance, vehicle, game bag, game coat, or other receptacle for wild animal life, marine life, or freshwater aquatic life, or any camp, tent, cabin, or roster, in the presence of any person stopping at or belonging to such camp, tent, cabin, or roster, when said officer has reason to believe, and has exhibited her or his authority and stated to the suspected person in charge the officer’s reason for believing, that any of the aforesaid laws have been violated at such camp[.]

(Emphasis added.) The applicable version of section 372.76, entitled “Search and seizure authorized and limited,” gives conservation officers authority to board “any ... vehicle” when they have “reasonable and probable cause”:

The Fish and Wildlife Conservation Commission and its conservation officers shall have authority when they have reasonable and probable cause to believe that the provisions of this chapter have been violated, to board any vessel, boat, or vehicle or to enter any fishhouse or warehouse or other building, exclusive of residence, in which game, hides, fur-bearing animals, fish, or fish nets are kept and to search for and seize any such game, hides, fur-bearing animals, fish, or fish nets had or held therein in violation of law. Provided, however, that no search without warrant shall be made under any of the provisions of this chapter, unless the officer making such search has such information from a reliable source as would lead a prudent and cautious person to believe that some provision of this chapter is being violated.

(Emphasis added.)

The plain language of these statutes limits the power of a wildlife officer to make arrests and board vehicles when the officer has probable cause to believe that laws or regulations are being, violated. We have found no statutory authority for a wildlife officer to stop a citizen for a regulatory inspection without any reasonable suspicion that the person is violating any law or wildlife regulation. Nor have we found any cases that would suggest a different approach. Cases analyzing war-rantless stops and arrests by wildlife officers use the same laws generally applicable to law enforcement officers. See, e.g., State v. Bell, 873 So.2d 476, 477 (Fla. 2d DCA 2004) (citing the Stop and Frisk Law, section 901.161, Florida Statutes (2001)); State v. Howard, 411 So.2d 372, 376 (Fla. 4th DCA 1982) (citing section 901.15, governing lawful arrest without a warrant). To the extent that the State relies on an administrative rule to enlarge the wildlife officer’s authority beyond that granted by statute, we reject such a broad interpretation of the rule. See Willette v. Air Prods., 700 So.2d 397, 401 (Fla. 1st DCA 1997) (“ ‘It is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute.’” (quoting State, Dep’t of Bus. Regulation v. Salvation Ltd.., 452 So.2d 65, 66 (Fla. 1st DCA 1984))).

Based on the foregoing authorities, we conclude that the officer needed reasonable suspicion to stop Amison’s vehicle. Because the trial court found no reasonable suspicion existed, a finding supported by the officer’s testimony, the trial court erred in denying the motion to suppress. Thus we reverse the denial of the motion to suppress and remand for the trial court to grant the motion, which will entitle Ami-son to discharge.

Reversed and remanded with directions.

DAVIS and VILLANTI, JJ., Concur.

      . The State also cited several cases relating to an officer having probable cause to arrest upon smelling marijuana smoke. We do not consider these cases determinative of the outcome of this appeal.

      . Section 372.121 was renumbered as 379.2223. See ch.2008-247, § 29, Laws of Fla. (effective July 1, 2008).

      . The plaintiff also sought pecuniary damages for injuries sustained during an altercation with two wildlife officers.

      .The case was brought pursuant to 28 U.S.C. § 2281, which provided that an interlocutory or permanent injunction restraining the enforcement, operation or execution of a state statute on grounds of unconstitutionality should not be granted unless the application has been heard and determined by a three-judge district court. This section was repealed by Pub.L. No. 94-381, § 1, 90 Stat. 1119 (1976).

      . Section 372.07 was renumbered as 379.3311. See ch.2008-247, § 114, Laws of Fla. (effective July 1, 2008).

      . Section 372.76 was renumbered as 379.334. See ch.2008-247, § 119, Laws of Fla. (effective July 1, 2008).


author: SILBERMAN, Judge.

text:
    Charles LABARBARA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2961.
    District Court of Appeal of Florida, Second District.
    April 1, 2009.

      Charles Labarbara, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Hwan-Yul Lee, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Charles Labarbara, pro se, appeals his judgments and sentences for three counts of robbery with a weapon and three counts of false imprisonment. We affirm the judgments and sentences for count one and counts three through six. We reverse and remand for the trial court to vacate the judgment and sentence for robbery with a weapon for count two on double jeopardy grounds. We affirm without discussion the remaining two points Labar-bara raises on appeal.

These charges arose when Labarbara entered an Xtreme Juice store with the intent to rob it. When he entered, three young employees were present, Emily, Christine, and Kate. Count one of the information charges that Labarbara took “U.S. Currency and a motor vehicle, the value of said property being” $300 or more but less than $20,000 from the person or custody of Emily. Count two charges that Labarbara took United States currency of $300 or more but less than $20,000 from the person or custody of Christine. Count three charges that Labarbara took United States currency of $300 or more but less than $20,000 from the person or custody of Kate.

Labarbara argues that the convictions for three counts of robbery with a weapon violate the prohibition against double jeopardy. He argues that his intent when entering Xtreme Juice was to rob the clerk of the store proceeds and that it was “a single taking with a singular intent to rob.”

The State contends that we should affirm on this issue because Labarbara did not raise a double jeopardy claim in the trial court. Labarbara did not knowingly waive this claim in the trial court, and a violation of the constitutional prohibition against double jeopardy is fundamental error that can be raised for the first time on appeal. See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Johnson v. State, 747 So.2d 1027, 1028 (Fla. 2d DCA 1999); see also Butler v. State, 711 So.2d 1183, 1184 (Fla. 1st DCA 1998) (stating that Butler “did not waive his double jeopardy claim arising from the multiple robbery convictions and sentences by his failure to raise it before the trial court”), approved, 735 So.2d 481 (Fla.1999).

In Brown v. State, 430 So.2d 446 (Fla.1983), the Florida Supreme Court determined that two robbery convictions were proper when Brown robbed a retail store by taking money by force from two employees at two separate cash registers.

The court explained that

the money taken by the defendant belonged to a single owner, but it was taken by force, violence, assault, or putting in fear from two separate employees. The taking was from separate cash registers, over the second of which the first employee had no control. The two events were separated in time and each required separate criminal intent. Actual ownership of the money obtained is not dispositive of the question of whether multiple robberies have been committed. What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.

Id. at 447.

In Harvey v. State, 693 So.2d 694 (Fla. 2d DCA 1997), Harvey ordered restaurant employees, including the cashier, into the freezer at gunpoint. Harvey then forced the manager to remove money from the cash register and give it to Harvey. Harvey was charged and convicted of an armed robbery of the cashier and an armed robbery of the manager. This court relied upon Brown to determine that no separate and distinct taking from the cashier occurred. Id. at 695. This court stated, “Because there was only one forceful taking of money from one cash register, only one conviction for armed robbery can stand.” Id.

In Atwell v. State, 886 So.2d 421, 422 (Fla. 2d DCA 2004), Atwell and an accomplice held four women at gunpoint during a robbery in a store, and this court reversed one of the four convictions for armed robbery. Atwell ordered Wendy to remove money from the cash register, and the men also took money from three of the women’s purses. The men took no money or property from Kim, the fourth woman. This court determined that Atwell’s conviction for the robbery of Kim had to be vacated when Wendy removed the money from the cash register and the men took no property from Kim’s person or custody. Id. at 423.

Here, Labarbara took the store’s money from Kate (count three). He made no separate and distinct taking of the store’s money from Christine. Therefore, there was no separate robbery of Christine with respect to the store’s money. See Brown, 430 So.2d at 447; Harvey, 693 So.2d at 695. Although Kate testified that Labarbara took a cell phone from Christine, the State did not charge Labarbara with robbery of a cell phone. Rather, the State specifically charged that he took currency from Christine, and the jury was instructed to determine whether he took money from her. Thus, we reverse and remand for the trial court to vacate the conviction and sentence on count two for the robbery of the store’s money from Christine.

With respect to the conviction and sentence as to the robbery of Emily (count one), in addition to charging the robbery of United States currency, the State charged that Labarbara robbed Emily of a motor vehicle. The record reflects that this was a separate act with a separate intent from the robbery of the store’s money. After Kate gave the store’s money to Labarbara, he ordered all three of the young women to lie on the floor. He then forcibly asked for a car, and Emily said he could take hers because she was scared that she would be shot. He ordered Kate and Christine to get in the bathroom while Emily stayed in the back room with him. She gave him her car key and he left in her car. This was a separate taking from a separate person. See Brown, 430 So.2d at 447 (“What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.”); see also Consiglio v. State, 743 So.2d 1221, 1221 (Fla. 4th DCA 1999) (“We affirm appellant’s convictions for carjacking and robbery against his claim that conviction of both violates double jeopardy, as we conclude that the evidence supports two separate acts and separate property.”), approved in part and remanded on other grounds, 818 So.2d 467 (Fla.2002). Therefore, we affirm the judgments and sentences for robbery with a weapon in counts one and three.

Accordingly, we reverse and remand for the trial court to vacate the judgment and sentence for robbery with a weapon in count two, and we affirm the judgments and sentences for count one and counts three through six.

Affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.


author: POLEN, J.

text:
    Charles Ryan HICKMAN and Carol Cavanagh Hickman, Appellants, v. BARCLAY’S INTERNATIONAL REALTY, INC., a Florida corporation, and Bjorn Q. Aaserod, Appellees.
    No. 4D07-3382.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.

      Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellants.
    Mark F. Bideau, Janna S. Nugent of Greenberg Traurig, P.A., West Palm Beach, Elliot H. Scherker, Julissa Rodriguez, and Elaine D. Walter of Greenberg Traurig, P.A., Miami, for appellee Bjorn Q. Aaserod.
   POLEN, J.

Appellants Charles Ryan Hickman and Carol Cavanagh Hickman (“the Hick-mans”) timely appeal the trial court’s grant of summary judgment in favor of Bjorn Aaserod (“Aaserod”) and denial of their request to amend their summary judgment pleadings. This Court has jurisdiction. Fla. RApp. P. 9.030(b)(1)(A) (2008). For the reasons stated below, we reverse in part.

Aaserod bought a home in Palm Beach County, next door to his friend, Robert Wyner (“Wyner”). Wyner is a real estate agent for Barclay’s International Realty, Inc. (“Barclay’s”), which handled Aaserod’s real estate transaction. When Aaserod began renovating his house, Wyner lent assistance by overseeing the renovations and paying the bills as a signatory to Aaserod’s bank account.

On January 23, 1999, Appellant Charles Ryan Hickman (“Hickman”) became interested in purchasing Aaserod’s home and entered the property to obtain Aaserod’s contact information. As he was leaving, Wyner saw Hickman and called the police. The two men got into a minor confrontation, and Hickman was charged with petty theft, battery against Wyner, and misdemeanor trespass.

After he was found not guilty on all three counts, Hickman and his wife filed a multi-count complaint against Wyner, Aas-erod, and Barclay’s. In their second amended complaint, the Hickmans alleged, inter alia, that Wyner was negligent for failing “to utilize ordinary care to report truthfully and accurately to the [police] any facts regarding the incident.” The complaint also alleged that Aaserod was liable for Wyner’s purported negligence due to their agency relationship.

In response, Aaserod filed a motion for summary judgment, disputing the allegation of agency. Contrary to Wyner’s assertion that he contacted the police at the direction of Aaserod, Aaserod produced evidence to show that he was in flight during the incident involving Hickman and, thus, could not have instructed Wyner to call the police. The court granted Aaser-od’s motion for summary judgment.

A trial court’s order granting summary judgment is reviewed under the de novo standard. Johnson v. Boca Raton Cmty. Hosp., 985 So.2d 593, 595 (Fla. 4th DCA 2008). “Summary judgment is properly granted when there are no issues of material facts, and the moving party is entitled to judgment as a matter of law.” Id.

Generally, the existence of an agency relationship is a question of fact; however, when the moving party fails to produce any supportive evidence or when the evidence presented is so unequivocal that reasonable persons could reach but one conclusion, that question of fact becomes a question of law to be determined by the court. Rubin v. Gabay, 979 So.2d 988, 990 (Fla. 4th DCA 2008) (citing Fernandez v. Fla. Nat’l College, Inc., 925 So.2d 1096, 1100 (Fla. 3d DCA 2006)).

The key element in establishing actual agency is the control by the principal over the actions of the agent. See 979 So.2d at 990 (citing State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. 4th DCA 1998)); Chase Manhattan Mortg. Corp. v. Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A., 694 So.2d 827, 832 (Fla. 4th DCA 1997). And it is the right of control, not actual control or descriptive labels employed by the parties, that determines an agency relationship Parker v. Domino’s Pizza, Inc., 629 So.2d 1026, 1027 (Fla. 4th DCA 1993).

In this case, as the Hickmans allege, Aaserod gave Wyner a key to his home so Wyner could have access in his absence; Aaserod designated Wyner as a signator on his checking account to enable Wyner to pay the mortgage, utilities, maintenance, and taxes; Wyner interviewed and selected architects and engineers for Aaserod’s review; and Wyner inspected the property and paid for repairs once he ascertained the work was completed.

Given those facts, it is still possible that a jury would determine that no agency relationship existed here. But, for the court to determine as a matter of law, that no agency relationship existed, the standard is higher. “[E]videnee presented by both parties [must be] so unequivocal that reasonable persons could reach but one conclusion.” 979 So.2d at 990. And even if Aaserod could not have exercised actual control over Wyner’s actions during the time Aaserod was on the airplane flight, it is still plausible that he would have had the right to control. See 629 So.2d at 1027. Further, a jury could reasonably infer that Wyner was acting on Aaserod’s behalf when he brought criminal charges against Hickman.

As such, we reverse the trial court’s grant of Aaserod’s summary judgment. It was error for the court to find, as a matter of law, that no agency relationship existed between Aaserod and Wyner. That issue, in this case, should be for a fact finder’s determination.

The Hickmans argue additionally that the trial court erred in denying what should have been a liberally allowed amendment to their second amended complaint. We find that the record does not lend support for this argument.

First, a trial court’s decision on a motion to amend the pleadings is reviewed for abuse of discretion. Williams v. Palm Beach Cmty. Coll. Found., 862 So.2d 917, 919 (Fla. 4th DCA 2003). Second, the litigation in this ease had been pending for over six years, during the course of which the Hickmans were allowed to amend their claims five times. As for their second amended complaint, the Hickmans did not seek an amendment until after the hearing on Aaserod’s renewed motion for summary judgment. And even then, they did so merely by moving ore tenus at the hearing on their motion for reconsideration of the order granting summary judgment for Aaserod. At that point, the court stated, “You can’t submit, on the day or the day after a hearing, a new motion to amend. You have to plead it and then proceed, so they’re on notice. This case has been around for a long time, and it really just needs to get teed up for trial.”

“While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981) (citation omitted); see also Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So.2d 892, 895 (Fla. 3d DCA 1982) (“[TJhree attempts to amend the complaint are enough.”). “In addition to the desirability of allowing amendments so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” 395 So.2d at 216 (citation omitted); see also Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So.2d 567, 568-569 (Fla. 4th DCA 1997) (“There comes a point in litigation where each party is entitled to some finality.”).

Here, the trial court properly exercised its discretion in denying the Hickmans’ motion, having determined that they had taken advantage of numerous opportunities to amend their pleadings and that the case had been pending for a long time. We affirm the trial court’s decision denying leave to amend.

Affirmed in part; reversed in part and remanded.

WARNER and HAZOURI, JJ., concur.


text:
    Rajkumar SABNANI, Appellant, v. STATE of Florida, Appellee.
    No. 3D09-416.
    District Court of Appeal of Florida, Third District.
    April 1, 2009.
    Harris W. Gilbert, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, CORTINAS and SALTER, JJ.
   PER CURIAM.

Rajkumar Sabnani appeals the denial of his motion to vacate a plea under Florida Rule of Criminal Procedure 3.850. Sabna-ni alleged that he had not been warned regarding the immigration consequences of his plea in December 2000, when he was sentenced to probation, and he relied upon the two-year window of State v. Green, 944 So.2d 208 (Fla.2006), to establish that his motion was timely.

The trial court denied the motion because, although no transcript from the 2000 plea colloquy could be located, the State filed a transcript in which the defendant was expressly warned of immigration consequences as he entered a plea at a violation of probation hearing a year later. The trial court could not have foreseen that some three weeks after she ruled in this case, we would reverse a similar order on similar facts. In doing so, we held that the Florida Rule of Criminal Procedure 3.172(c)(8) deportation warning at a later probation violation hearing does not pertain to an independent basis for deportation by the U.S. Department of Homeland Security and therefore does not cure the allegedly defective plea to the original criminal charge. Valdez v. State, 1 So.3d 1167 (Fla. 3d DCA2009).

We therefore reverse the order of denial in this case and remand the motion to the trial court with instructions. On remand, the trial court should dismiss Sabnani’s original motion with leave to amend. If Sabnani wishes to proceed, his motion must comply with the pleading requirements described in Green and our decision in State v. Freijo, 987 So.2d 190 (Fla. 3d DCA 2008). Specifically, Sabnani must also allege under oath and be prepared to prove that: (1) U.S. immigration authorities did not notify him of any deportation consequences or proceedings based on the 2000 conviction on or before September 10, 2006; and, (2) the conviction in Case No. F00-37145 is the only matter that subjects him to deportation (so as to establish the requisite prejudice). See Freijo, 987 So.2d at 194; Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002).

If such an amended motion is filed, the trial court should set the matter for an evidentiary hearing and rule on the record presented.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    In the Interest of A.M., a child. M.M., Appellant, v. Department of Children and Family Services and Guardian ad Litem Program, Appellees.
    No. 2D08-1719.
    District Court of Appeal of Florida, Second District.
    April 3, 2009.
    Jackson S. Flyte, Regional Counsel, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Second District, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paulin, Orlando, for Appellee Guardian ad Litem Program.
   THOMAS M. GALLEN, Associate Senior Judge.

M.M., the Father, seeks review of the trial court’s order which placed A.M. in a permanent guardianship and terminated protective supervision over the child. The Father argues that the trial court erred in failing to make written findings explaining why reunification was not possible. The Department and the Guardian ad Litem concede error. We find these concessions to be proper because written findings are required by section 39.6221(2)(a), Florida Statutes (2008).

Ordinarily, we would simply reverse and remand for the court to make the necessary written findings in compliance with section 39.6221(2)(a). However, both the Department and the Guardian ad Litem also concede that, even if the court had complied with section 39.6221(2)(a), competent, substantial evidence did not support A.M.’s placement in a permanent guardianship. We find these concessions to be proper because the Department did not meet its burden of proving that reunification would endanger the child. See C.D. v. Dep’t of Children & Families, 974 So.2d 495, 500 (Fla. 1st DCA 2008). Therefore, the order placing the child in a permanent guardianship is reversed. On remand, the trial court should grant the Father’s motion for reunification.

Reversed and remanded with directions.

VILLANTI and WALLACE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Eric DOW, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1017.
    District Court of Appeal of Florida, Second District.
    April 8, 2009.
    Eric Dow, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Eric Dow appeals an order denying his motion to correct an illegal sentence. We reverse and remand for further consideration of Mr. Dow’s sentence of natural life for an offense of robbery committed in March 1990 and identified as count one in case number 90-CF-004108.

The State charged Mr. Dow with six offenses in case number 90-CF-004108. The primary charge of robbery with a weapon was described as a first-degree felony. Mr. Dow pleaded guilty to these offenses in 1990 before Judge Harry Lee Coe and received a sentence on a first-degree felony of twenty-two years’ incarceration under the guidelines, followed by life probation on the robbery as a habitual violent felony offender.

After Mr. Dow was released from prison in 1999, he violated his probation in 2000. Judge Daniel L. Perry revoked his probation and sentenced him to a term of natural life for the robbery. Although the probationary term had been imposed after a finding that Mr. Dow qualified as a habitual violent felony offender, the sentence of natural life was not orally imposed under that status.

In 2004, Mr. Dow filed a motion to correct an illegal sentence in this case. In denying that motion, Judge Perry ruled that he had not imposed this sentence as a habitual violent felony offender sentence. We affirmed that order on appeal. Dow v. State, 906 So.2d 1068 (Fla. 2d DCA 2005) (table decision).

Mr. Dow has now filed another motion to correct an illegal sentence. Although the motion was not artfully drawn, the issues raised demonstrate that a sentence of natural life for the offense of robbery with a weapon would not have been legal under the applicable law in 1990 unless Mr. Dow was in fact sentenced upon revocation as a habitual violent felony offender. Accordingly, we ordered a response from the State. The State argues that the trial court should be instructed on remand to correct the sentencing documents to reflect that Mr. Dow was actually sentenced in 2000 as a habitual violent felony offender.

We decline to follow the State’s suggestion to correct this matter as a mere scrivener’s error because the judge who imposed the revocation sentences has expressly ruled that he did not sentence Mr. Dow as a habitual violent felony offender. Accordingly, we reverse the order on appeal and remand this matter to the trial court for further proceedings. Although we do not require the trial court to make any specific ruling on the motion, we would suggest that appointment of counsel to represent Mr. Dow in this matter would be helpful in attempting to reach a correct result.

Reversed and remanded.

CASANUEVA and LaROSE, JJ„ Concur.


author: VICTORY, J.

text:
    BROUSSARD PHYSICAL THERAPY v. FAMILY DOLLAR STORES, INC. and Ace American Insurance Co.
    No. 2008-CC-1013.
    Supreme Court of Louisiana.
    Dec. 2, 2008.
    Rehearing Denied Jan. 30, 2009.
    Kean, Miller, Hawthorne, DÁrmond, McCowan & Jarman, Charles S. McCow-an, Jr., M. Dwayne Johnson, Todd Alexander Rossi, Jennifer Jones Thomas, Baton Rouge, Harry T. Lemmon, for applicant.
    Keogh, Cox & Wilson, Edward Frank Strauss, III, Holly Clement Hargrove, Virginia Jordan McLin, Baton Rouge, The Williams Family Law Firm, Richard Bray Williams, Natchitoches, for respondent.
    Stephen Winston Glusman, Baton Rouge, for Louisiana Restaurant Association, Country Boy’s Restaurant, and Southern Flair Services, amicus curiae.
   VICTORY, J.

hWe granted this writ application to determine whether a workers’ compensation judge has subject matter jurisdiction to decide a third party demand for defense and indemnification filed by an employer and a workers compensation insurer against a Preferred Provider Organization (“PPO”), where the main demand alleges that a health care provider was underpaid reimbursement for medical bills in violation of the reimbursement schedule of the Workers’ Compensation Act (the “Act”). After reviewing the record and the applicable law, we reverse the judgments of the lower courts and hold that the workers’ compensation judge lacks subject matter jurisdiction over the third party demand.

FACTS AND PROCEDURAL HISTORY

On January 12, 2007, Broussard Physical Therapy (“Broussard”) filed a disputed claim for compensation against an employer, Family Dollar Stores, Inc. (“Family Dollar”), and its workers’ compensation insurer, Ace American Insurance (“Ace”), under the Act, alleging that it had provided health care to an employee of Family Dollar and that defendants were liable to it under the Act for underpayment and/or late payment of medical bills for that employee, along with penalties and ^attorneys’ fees for arbitrary and capricious handling of its claims. In partial response to Broussard’s claims, Family Dollar and Ace filed a third party demand against FOCUS Healthcare Management, Inc. (“FOCUS”), seeking defense and indemnification based on their PPO contracts with FOCUS. Family Dollar and Ace allege that the under payments complained of stem from discounts taken by Family Dollar and Ace pursuant to their PPO contracts with FOCUS and allege that FOCUS is responsible to them under these PPO contracts for any sums that they may be adjudged liable to Broussard.

FOCUS filed an exception of lack of subject matter jurisdiction, essentially arguing that the third-party claim filed against it does not arise out of the Act, and therefore, the workers’ compensation judge lacked jurisdiction to decide the claim. After a hearing, the workers’ compensation judge denied the exception of subject matter jurisdiction. FOCUS applied for supervisory writs to the Third Circuit Court of Appeal and requested a stay. The Third Circuit granted the stay, and then, without formally granting or denying the application for supervisory writs, affirmed the workers’ compensation judge’s denial of the exception, stating in pertinent part:

This court in Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553, considered the [^question of whether “the Office of Workers’ Compensation has subject matter jurisdiction to consider a claim filed by a health care provider against an employer and its insurer over a fee reduction pursuant to a preferred provider organization agreement.” Id. at 554. The court, sitting en banc, found that “In the 2005 amendment to La. R.S. 23:1310.3(D), the legislature specifically granted to workers’ compensation judges original, exclusive jurisdiction over contractual disputes such as the one in the case at bar.” Id. at 557.
Relator asserts in its writ application that the court’s decision in Beutler is consistent with its position in that the court did not hold that the OWC had jurisdiction to adjudicate disputes between employers and the owners of PPO networks under their PPO contracts. Relator essentially argues that the dispute does not “arise out of’ a workers’ compensation action and does not, therefore, fall under the jurisdiction of the OWC pursuant to La. R.S. 23:1310.3. We disagree. After much consideration, we find that this court’s reasoning in Beut-ler is equally applicable to the situation before the court. Broussard alleges an underpayment for medical treatment due under the Act. The OWC has subject matter jurisdiction over Broussard’s action against Family Dollar because it unquestionably arises out of the Act. Family Dollar is pursuing payment from Focus. If there were no question of an underpayment of amounts due under the Act, there would be no action by Family Dollar against Focus. Accordingly, that action, too, arises out of the Act. It would be difficult to envision a scenario in which an employer would sue a PPO network for failure to pay an employee’s claims that would not arise out of a workers’ compensation claim. Therefore, this action arises out of a worker’s compensation action, and the OWC has subject matter jurisdiction over the dispute.

Broussard Physical Therapy v. Family Dollar Stores, Inc. and Ace American Insurance Co., 08-3 (La.App. 3 Cir. 4/9/08), 981 So.2d 145. We granted Focus’s Rwrit application. Broussard Physical Therapy v. Family Dollar Stores, Inc. and Ace American Insurance Co., 08-1013 (La.6/27/08), 983 So.2d 1287.

DISCUSSION

“Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La. C.C.P. art 1. “Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the rights asserted.” La. C.C.P. art. 2. “The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties,” and “[a] judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.” La. C.C.P. art. 3.

The Louisiana Constitution establishes the subject matter jurisdiction of the district courts and provides:

Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in workers’ compensation matters, a district court shall have original jurisdiction of all civil and criminal matters....

La. Const, art. V, § 16 (emphasis added). Thus, while a district court generally has original jurisdiction over all civil matters in Louisiana, the Louisiana Constitution carves out of the jurisdictional grant “administrative agency determinations in workers’ compensation matters” as are “provided by law.” The legislature has “provided by law” for the jurisdiction of workers’ compensation judges by enacting La. R.S. 23:1310.3(E), which, as amended in 2006, provides as follows:

| ^Except as otherwise provided by La. R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4661 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter. (Emphasis added.)

This Court has held that “[i]n granting hearing officers only the authority to hear ‘administrative agency determinations’ in ‘workers’ compensation matters,’ La. Const, art. V, § 16(A) only authorized hearing officers to adjudicate workers’ compensation claims arising under the Act itself.” Albe v. La. Workers’ Compensation Corp., 97-0581 (La.10/21/97), 700 So.2d 824, 829. La. R.S. 23:1310.3(E) has included in matters “arising out of this Chapter,” “workers compensation insurance coverage disputes.” In addition, La. R.S. 23:1034.2(F)(1), contained in the statute establishing for the Act’s reimbursement schedule, provides:

Should a dispute arise between a health care provider and the employer, employer, or workers’ compensation insurer, either party may submit the dispute to the office in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.

In the main demand, the health care provider alleges that the employer/workers’ compensation insurer reimbursed it at amounts less than those required under the reimbursement schedule of the Act. The defendants claim that its payment was permissible under the Act. As such, the main demand can be characterized as a type of a “workers’ compensation insurance coverage dispute,” |fiwhich is specifically listed in La. 23:1310.3(E). Further, as the plaintiff claims the defendants violated the Act in reimbursing it at rates lower than those allegedly required under the Act, the main demand “arises out of’ the Act. Finally, although it does not involve the employee’s entitlement to benefits under the Act, it is a “dispute” between a “health care provider” and “the employer or workers’ compensation insurer” under La. R.S. 23:1034.2(F)(1) and as such, was properly submitted to the OWC “in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.”

However, the issue in this case is not whether the workers’ compensation judge has subject matter jurisdiction over the main demand, for no one is even disputing that. The issue is whether the workers’ compensation judge has jurisdiction over the third party demand between the employer/insurer and the PPO provider. Unlike the main demand, no statute expressly provides for subject matter jurisdiction of the workers’ compensation judge over the third party demand. While La. R.S. 23:1310.3(E) provides an illustrative list of the type of actions that arise out of “this Chapter,” the list does not include the situation presented in the third party demand. This is not a “workers’ compensation insurance coverage dispute,” as FOCUS did not provide workers’ compensation insurance to either of the defendants, nor to the plaintiff. La. R.S. 23:1034.2(F)(1) does not apply either, as that statute does not refer to PPO providers. Thus, the only remaining basis for jurisdiction would be if the third party claim is a claim or dispute “arising out of’ the Act.

The court of appeal determined that the third party demand did arise out of the Act, reasoning that the workers’ compensation judge had jurisdiction over the main demand and “[i]f there were no question of an underpayment of amounts due under the Act, there would be no action by [the employer] against [the PPO].” 981 So.2d |7at 147. Further, the court of appeal reasoned that “[i]t would be difficult to envision a scenario in which an employer would sue a PPO network for failure to pay an employee’s claims that would not arise out of a workers’ compensation claim.” Id. However, a PPO is never obligated to pay an employee’s claims, for a PPO is not a workers’ compensation insurer. It is only through a separate contract of indemnity in a PPO contract that a PPO might be liable to one who is obligated to pay an employee’s claims, such as an employer or an insurer.

Further, this decision was rendered against a convoluted backdrop of four decisions the Third Circuit has issued in workers’ compensation cases concerning jurisdiction in cases involving disputes over the rate payable to the health care provider for health care services rendered to injured employees when a PPO contract is involved. See Beutler England Clinic v. Market Basket No. 27, 05-952 (La.App. 3 Cm. 12/30/05), 919 So.2d 816 (holding that the OWC did not have jurisdiction to consider a claim filed by a health care provider against an employer and insurer for reductions made pursuant to a PPO agreement); Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553 (en banc) (holding that the 2005 amendments to La. R.S. 23:1310.3 “specifically granted to workers’ compensation judges original, exclusive jurisdiction over contractual disputes” between a health care provider and employer involving “workers’ compensation insurance coverage disputes” and applied retroactively; thus, the workers’ compensation judge had jurisdiction even where the alleged underpayments resulted from discounts taken under PPO agreements); Southwest Louisiana Hospital Ass’n v. Superior Carriers, Inc., 06-807 (La.App. 3 Cir. 11/2/06), 942 So.2d 754 (holding that the OWC had subject matter jurisdiction over a petition for declaratory relief asking the court to declare a discount taken by the workers’ compensation Isinsurer in paying the health care provider the PPO network amount, rather than the amount set by the workers’ compensation law, invalid and unenforceable under La. R.S. 40:2203.1 (the Louisiana Preferred Provider Organization Act) and La. R.S. 23:1033); Gunderson v. F.A. Richard & Associates, Inc., 07-331 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, writs denied, 08-1063, 08-1069, 08-1072 (La.9/19/08), 992 So.2d 953 (holding that the OWC did not have jurisdiction over claims by health care providers against various PPOs alleging that the PPOs had entered into contracts with them pursuant to the PPO Act, La. R.S. 40:2201, et seq., which allowed them to pay a discounted rate for the provision of health care, and that the PPOs had routinely reimbursed them in workers’ compensation cases at the lower PPO contracted rates, rather than at the higher amount mandated workers’ compensation rates, because the claims did not “arise out of’ the Act). At this time, the Third Circuit is the only Louisiana court of appeal to have addressed the jurisdiction of workers’ compensation judges in light of PPO agreements.

After reviewing the record and the above law and jurisprudence, we find that the third party demand does not “arise out of’ the Act pursuant to La. R.S. 23:1310.3(F). The employer/insurer filed the third party demand against the PPO, and the employer/insurer has not alleged that the PPO is responsible for payment of benefits under the Act. Instead, they allege that the PPO is liable to them under one or more contracts with them, based upon indemnification provisions that such contracts contain, for any sums for which the employer/insurer may be adjudged liable to the health care provider. However, the Act does not govern or otherwise regulate contracts between employers, insurers, and owners of PPO networks. Disputes involving contracts between such parties do not “arise out of’ the Act, even | flwhere the relevant claims involve the payment of third party medical bills required under the Act. La. R.S. 23:1310.3(E) is quite specific and provides for jurisdiction by the workers’ compensation judge only for “claims or disputes arising out of’ the Act. Mere involvement of workers’ compensation issues is insufficient; such disputes may “relate to” workers’ compensation matters, but they do not “arise out of’ the Act. Further, the fact that it may be more judicially efficient to adjudicate the third party demand in the same forum as the main demand is insufficient to confer subject matter jurisdiction.

Moreover, disputes over contracts generally involve civil matters within the jurisdiction of the district courts. Central Louisiana Elec. Co., Inc. v. Louisiana Public Service Com’n, 601 So.2d 1383, 1385 (La.1992). The resolution of the third party demand for contractual indemnity against the PPO will have no effect on the amount of medical benefits to be paid by the employer/insurer to the health care provider. The resolution of the health care providers claim against the employer/insurer will depend solely on the defendants’ obligations to the health care |inprovider under the Act, while the resolution of the third party demand simply will establish whether the PPO is liable to the employer/insurer under the indemnity provisions of their PPO contracts for any sums which defendants may be adjudged liable to the health care provider. Simply put, the third party demand is a contract claim that does not arise out of the Act.

CONCLUSION

The general rule is that district courts are vested with original jurisdiction of all civil matters. The original, exclusive jurisdiction granted to workers’ compensation judges in La. R.S. 23:1310.3(E) is an exception to this general rule and is limited to its explicit terms. The dispute between Family Dollar/Ace and FOCUS is a contract dispute involving indemnity under PPO agreements. La. R.S. 23:1310.3(E) does not expressly grant workers’ compensation judges jurisdiction over contract disputes of this type. Nor do such contract disputes “arise out of’ the Act so as to fall within the ambit of La. R.S. 23:1310(E)’s general jurisdictional grant. Instead, contract disputes such as this are civil matters within the original jurisdiction of district courts. The workers’ compensation judge thus lacks subject matter jurisdiction to adjudicate the third party demand.

DECREE

For the reasons stated herein, the decision of the court of appeal is reversed, the third party demand is dismissed, and the case is remanded to the workers’ compensation judge, OWCA District 2, for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

JOHNSON, J., concurs.

      . The health care provider claims that it is not legally permissible under the Act, La. R.S. 23:1033, to reduce, via contract, the obligation to reimburse a medical provider pursuant to the fee schedule provided under the Act, La. R.S. 23:1203 and 23:1034.2. La. R.S. 23:1033 provides: “No contract, rale, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.”

      . A PPO network generally consists of health care providers, such as Broussard, who enter into provider contracts with a PPO owner. Through these contracts, the health care providers agree to accept specified contractual rates of payment, which are typically discounted, in exchange for receiving patient referrals and other benefits through the PPO network. The PPO network then enters into client contracts with entities that administer or pay for the provision of health care services, such as employers and workers' compensation plans and insurers. Through these client contracts, the PPO clients are able to have patients treated at discounted rates, in exchange for payment to the PPO owner of a percentage of the savings the PPO clients realize as a result of these discounted rates. Generally, the PPO agreements are of general application and are not restricted to a particular area of insurance, such as workers compensation insurance.

      . In a footnote, the court of appeal noted that the PPO owner’s reliance on another case was inapposite, stating:
      Counsel for FOCUS has brought the recent case of Gunderson v. F.A. Richard & Associates, Inc., 07-331 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, to the attention of this court. We find that Gunderson is a misinterpretation of this court's en banc decision in Beutler and does not apply to this case.

      . PPO administrators filed exceptions of lack of subject matter jurisdiction in eleven separate supervisory writ applications all alleging the same fact pattern, and the court of appeal issued a single opinion under the caption in this case. In all the remaining applications, the court of appeal affirmed for the reasons assigned in Broussard, without rendering a full opinion. Following the court of appeal’s action, the PPO administrators applied to this court in eleven separate applications. In six of the applications, 08-CC-1012, 08-CC-1014, 08-CC-1015, 08-CC1016, and 08-CC-1018, the applicants are Concentra Integrated Services and FOCUS. In three of the applications, 08-CC-1013, 08-CC-1019, and 08-CC-1020, the applicant is FOCUS, and in the remaining application the applicant is American Lifecare, Inc.

      .We granted the writ application in 08-1013 as it corresponds with the full opinion issued by the court of appeal.

      . These exceptions are not relevant to this case as they concern claims against third party tortfeasors for reimbursement of compensation benefits paid by an employer or workers' compensation insurer, claims against employers for retaliatory discharge and against prospective employers for retaliatory denial of employment, and appeals of decisions of the Louisiana Workers' Compensation Second Injury Board.

      . In so holding, the court disavowed the portion of Southwest that held the OWC had jurisdiction over the claim brought pursuant to La. R.S. 40:2203.1

      . Cases in which courts of appeal have found that matters did not “arise out of” the Act but merely “related to” the Act include the following: Harding v. Jackson, 96-2273 (La.App. 1 Cir. 11/7/97), 701 So.2d 1386 (holding that claims asserted in a defendant employer’s third party demand against its putative insurer were outside the subject matter jurisdiction of the workers’ compensation judge); Covington v. A-Able Roofing, Inc., 95-1126 (La.App. 3 Cir. 3/6/96), 670 So.2d 611 (holding that the workers' compensation judge lacked jurisdiction over an injured employee's rule to have his workers' compensation judgment against a defunct, uninsured corporation made execu-tory against the owner of the corporation individually); Williams v. Midwest Employers Cas. Co., 28,118 (La.App. 2 Cir. 2/28/96), 669 So.2d 616, writ denied, 96-0820 (La.5/17/96), 673 So.2d 610 (holding that the workers' compensation judge lacked subject matter jurisdiction over an injured employee's suit against an excess liability insurer to recover a default judgment entered against an insolvent employer under the Act); Ortego v. CXY Energy, 95-718 (La.App. 3 Cir. 1/10/96), 670 So. 2d 217 (holding that the workers' compensation judge lacked jurisdiction over a workers' compensation insurer’s third-party demand for indemnification based on a service agreement between the employer and the insured because the claim was based on the indemnity provisions of the service contract and thus did not qualify as a workers’ compensation matter).

      . See also La. C.C.P. art. 1036 "Except as otherwise provided in Article 4845, a court shall have jurisdiction over an incidental demand only if it would have had jurisdiction over the demand had it been instituted in a separate suit. The only exceptions to this rule are those provided in the state constitution.”