text:
    Jeffery D. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4280.
    District Court of Appeal of Florida, First District.
    June 23, 2011.
    Jeffery D. Thomas, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse and remand for the trial court to award the appellant an additional day of jail credit. See § 921.161(1), Fla. Stat. (2007); Patterson v. State, 815 So.2d 677 (Fla. 1st DCA 2002) (stating that Patterson, who was jailed from the date of his arrest until the date of sentencing, was entitled to one day of jail credit beginning with the date of arrest through to the date of sentencing). We affirm the lower court’s denial of claim two.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    C.K., Appellant, v. B.B. o/b/o T.S., minor child, Appellee.
    No. 2D10-5175.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.
    Lisa Kirby of Kirby & Cavanaugh, P.A., Naples, for Appellant.
    Jim D. Shumake of Jim D. Shumake, P.A., Naples, for Appellee.
   DAVIS, Judge.

C.K. (the Mother) challenges the trial court’s final judgment of injunction for protection against domestic violence entered against her and in favor of B.B. (the Father), acting on behalf of the parties’ eight-year-old daughter, T.S. Because the record before us does not establish that the child is the victim of domestic violence or is in imminent danger of becoming a victim of domestic violence at the hands of the Mother, we reverse.

In his petition for injunction for protection against domestic violence, the Father alleged the following:

I have a fear that [the child] could become [the] victim of domestic violence, because of her mother and mother’s boyfriend abusing drugs (Rox[i]codone, prescription pain medication). Boyfriend has been verbally abusive. The mother seems unable to protect the child from verbal [abuse] and witnessing drug abuse. Mother drives while child is in her car while under the influence of drugs. Mother has passed out for hours at a time leaving daughter to fend for herself. I believe the boyfriend is a drug dealer, many reports have been made to Dep’t of Children and Families. I’m very fearful for the safety and well-being of my daughter.

At the hearing on the petition, the Father presented no evidence regarding the boyfriend’s drug use, verbal abuse, or drug dealing. Likewise, he presented no evidence that the Mother had passed out for hours leaving the child unattended. As such, we conclude that he has waived those allegations. Additionally, the record before us seems to suggest that the reports to the Department of Children and Family Services that the Father references have all been made by the Father himself.

With regard to the Mother’s drug use and her driving under the influence of drugs with the child in the car, the Father testified that he witnessed the Mother “driving with her children in the car intoxicated on prescription pain killers that she does not have a prescription for.” Additionally he testified that at “a parent/teacher meeting where the children bring their parents in to meet the teacher[, the Mother] was lethargic, for lack of a better word, could not concentrate on what she was saying, slurred speech, could not pay attention to what was — speaking with her was difficult.”

The Father’s second witness testified that she had known the Mother for about two years and that a couple of weeks prior to the hearing she had witnessed the Mother at a Publix Super Market. According to the witness, on that occasion the Mother “couldn’t walk. She didn’t even know where the front entrance to the store was. She looked confused. She didn’t look like she was there at all.” On cross-examination conducted by the Mother, who appeared below pro se, the witness testified as follows: “You were sitting in the car with your boyfriend and then you got out, and me and my stepdaughter stood at the car and watched you, and you stood there for probably three to four minutes before you even entered, and you were just lost, you looked lost.” The witness, however, did not testify that the child was with the Mother on that occasion.

The Mother’s eighteen-year-old son testified that he believed the Mother has a problem with prescription pain killers. But he also testified that he did not believe that she would ever harm his brothers or sisters.

Finally, the child’s paternal grandmother testified about two specific occasions on which the Mother’s behavior had concerned her. On one occasion, the Mother dropped the child off at the grandmother’s home and “was leaning over the steering wheel of her car and appeared to be ill. She asked if she could come in and get a drink of water or something.... She could barely make it up the steps.... She had her little boy with her, who is four, and [the parties’ daughter].” On the other occasion that the grandmother referenced, she and her husband went to the Mother’s home to pick up the child. The grandmother saw the Mother

come out the front door, stumbling and disoriented, and heading for her car with her children, and apparently planned to take [the child] with her, but we showed up before they left. Then she was shaking so bad that she asked me if I would put the key in her car door because she couldn’t — she was shaking too much to do it herself.... I said ... I’m really worried about you driving in this condition with the children.

Following the hearing, the trial court granted the injunction, awarding the Father, on a temporary basis, “100% ... of the time-sharing with the parties’ minor child” and requiring the Mother to undergo a substance abuse assessment and follow the resulting recommendations.

On appeal, the Mother argues that the Father failed to meet his burden below of establishing that the child was a victim of domestic violence or was in imminent danger of becoming a victim of domestic violence. We agree.

Upon notice and hearing, when it appears to the court that the petitioner is either the victim of domestic violence as defined by s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court may grant such relief as the court deems proper, including an injunction....

§ 741.30(6)(a), Fla. Stat. (2010) (emphasis added). Section 741.28 defines “domestic violence” as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”

The only part of this definition that might be implicated by the evidence presented in this case is “any criminal offense resulting in physical injury or death” of the parties’ child. In his petition for injunction for protection against domestic violence, the Father only alleged that his daughter “could become [the] victim of domestic violence.” (Emphasis added.) Therefore, the question we must address is whether, under section 741.30(6)(a), the Mother’s behavior provides the reasonable cause to believe that the child is in imminent danger of becoming a victim of domestic violence. We conclude that it does not.

Although the grandmother testified that the Mother looked “shaky” and “ill” on two occasions, on only one of those occasions did she see the child actually in the car with the Mother while the Mother was driving. She also testified that at no time did she witness the Mother take prescription drugs. In fact, no witness specifically testified that they had seen the Mother take prescription drugs. The Father’s evidence was purely anecdotal and at best established that, on a handful of occasions, the Mother had appeared in public looking “shaky” or “ill” or “out of it.” But nothing in the Father’s evidence — other than unsubstantiated allegations of drug use — established the cause of the Mother’s behavior.

Because this falls short of establishing that the child was in imminent danger of becoming a victim of domestic violence, we must reverse.

Reversed.

SILBERMAN and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    John Patrick CRIMINS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1840.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2011.

      Robert Wesley, Public Defender and Michael E. Martinko, 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 CF09-18633-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ORFINGER, EVANDER and JACOBUS, JJ., concur.


text:
    K.L.T., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-987.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2011.
    James S. Purdy, Public Defender, Seventh Judicial Circuit and S. Scott Coleman, Assistant Public Defender, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The juvenile petitioner K.L.T. sought habeas corpus relief asserting that his commitment to a high-risk program took place after his probation expired; therefore, the trial court lacked jurisdiction to violate his probation and recommit him. We agreed and ordered the immediate release of Petitioner from custody in case no. 2010-30393-CJCI, with this opinion to follow.

Prior to the end of Petitioner’s probationary sentence, an affidavit of violation was filed and a warrant issued. Petitioner was not arrested on the violation until after his probationary period would have ended on March 3, 2011. The only issue presented in this case is whether an active juvenile probationary period is tolled upon the filing of an affidavit of violation. If tolling is applicable, Petitioner’s probationary period did not continue to run and the trial court maintained jurisdiction over the probation and its conditions. If tolling is not applicable to juvenile probation, the trial court had no jurisdiction to violate Petitioner and impose an additional commitment after probation expired.

As Petitioner contends, there is no provision in the juvenile rules or statutes for tolling probation, unlike in adult cases. See Fla. Stat. § 948.06(d)(2009). This, coupled with Florida Juvenile Statute Section 949.01 which states that “[n]othing in chapters 947-949 [adult probation and parole statutes] shall be construed to change or modify the law respecting parole and probation as administered by [a] circuit court exercising jurisdiction,” supports Petitioner’s argument that the trial court lacked jurisdiction to violate Petitioner’s juvenile probation and order further commitment of Petitioner in this case.

Accordingly, the trial court had no jurisdiction to conduct a violation of probation hearing after Petitioner’s probationary term had expired, and habeas corpus is properly granted.

PETITION GRANTED.

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


text:
    Jean Pierre FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3278.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2011.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Jean Pierre Francis’ conviction, but remand for the entry of a proper nunc pro tunc order finding Francis competent to stand trial. Although the trial court found Francis competent to proceed to trial after previously having found him to be incompetent, the only written confirmation thereof is contained in a document entitled “Court Minutes/Order” signed by the deputy clerk, not by the trial court. Accordingly, we remand this matter to the trial court for the entry of a proper written order of competence, nunc pro tunc. See Fla. R.Crim. P. 3.212(c)(7) (stating: “If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.”); Cor-bitt v. State, 744 So.2d 1130, 1130 (Fla. 2d DCA 1999) (ruling: “[W]here the trial court has entered an oral finding that the defendant is competent, but no written order of competency has been entered, the proper remedy is to affirm the judgment and to remand the case to the trial court for entry of a nunc pro tunc order finding the defendant competent to stand trial.”). Accord Hampton v. State, 988 So.2d 103, 106 (Fla. 2d DCA 2008); Bailey v. State, 931 So.2d 224, 225 (Fla. 1st DCA 2006). See also Ortiz v. State, 55 So.3d 724, 724 (Fla. 5th DCA 2011).

Judgment and Sentence AFFIRMED; Case REMANDED for entry of proper order.

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

      . The only difference between the situation in Ortiz and the instant case was that the defendant in Ortiz was found competent at the outset (i.e., she was never previously found incompetent and then restored to competency) and, thus, the applicable rule was rule 3.212(b), not rule 3.212(c)(7), of the Florida Rules of Criminal Procedure.


author: JACOBUS, J.

text:
    Daniel ARIAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2046.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2011.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Daniel Arias appeals the sentence imposed after he pled no contest to one count of burglary of a dwelling with an assault or battery. On appeal, Arias challenges the imposition of sex offender conditions as found in section 948.30, Florida Statutes. He argues that those conditions are not related to the crime to which he entered a plea. We find merit to Arias’ contention and reverse and remand for resentencing with further consideration by the court.

In November 2008, Arias entered a no contest plea to the trial court to the charge of burglary of a dwelling with an assault or battery therein. The charges stemmed from an incident in which Arias entered his girlfriend’s home at 3:00 a.m. to retrieve his wallet. He did not have permission to enter the house. At the time, Arias’ girlfriend’s 13-year-old daughter was home alone. After retrieving his wallet, Arias entered the daughter’s bedroom, asked her questions, and petted her hair without her permission. Because the girl was frightened by Arias’ conduct, she locked herself in the bathroom. Although the crime to which Arias pled is not one of the crimes enumerated in section 948.30, the trial court felt there was a sexual motive to Arias’ actions and imposed as special conditions of probation the sexual offender conditions set forth in section 948.30.

In Sturges v. State, 980 So.2d 1108 (Fla. 4th DCA 2008), our sister court determined that it is improper to impose sex offender conditions of probation unless the defendant is convicted of a crime specified in section 948.30. In Biller v. State, 618 So.2d 734 (Fla.1993), the supreme court found that conditions of probation must relate to the underlying charge. The Bil-ler court set forth a test for determining whether a special condition of probation is reasonably related to rehabilitation. It explained that a condition of probation is invalid “if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” Id. at 734-35 (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979)).

In this case, the trial court did not find that Arias was a sexual offender or a sexual predator. We recognize that the court imposed the conditions found in section 948.30 as special conditions of Arias’ probation. We find that this distinction does not negate the holding set forth in Sturges. Accordingly, we reverse only that portion of Arias’ sentence which imposes the sex offender conditions set forth in 948.30 as special conditions of his probation. The trial court may impose a term of probation with or without special conditions that satisfy the Biller test.

REVERSED and REMANDED with instructions.

LAWSON and EVANDER, JJ., concur.

      . § 810.02(2)(a), Fla. Stat.


text:
    Marquis Lentrae McGRUDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1065.
    District Court of Appeal of Florida, First District.
    June 24, 2011.
    Nancy A. Daniels, Public Defender and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Gonzalez v. State, 50 So.3d 633 (Fla. 1st DCA 2010).

LEWIS, CLARK, and ROWE, JJ., concur.


text:
    Elijah BOWDEN, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-6451.
    District Court of Appeal of Florida, First District.
    June 24, 2011.
    Elijah Bowden, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jamie M. Braun, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Smith v. McNeil, 49 So.3d 298 (Fla. 1st DCA 2010).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Mitchell Price MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2572.
    District Court of Appeal of Florida, First District.
    June 24, 2011.
    Mitchell Price Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, PADOVANO, and HAWKES, JJ„ concur.


text:
    Samuel STROTHER, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D11-2675.
    District Court of Appeal of Florida, First District.
    June 24, 2011.
    Samuel Strother, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Kareem GRADY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3003.
    District Court of Appeal of Florida, First District.
    June 24, 2011.

      Kareem Grady, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Fritz PAMPHILE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3150.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      David Casals of the Law Office of David Casals, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the Appellant’s motion for rehearing and withdraw our opinion dated April 27, 2011, and issue the following in its place:

Fritz Pamphile appeals his conviction for unauthorized possession of a driver’s license or identification card based upon the trial court’s denial of his motion to suppress. After the trial court denied his motion to suppress, Pamphile pled nolo contendere to the charge and was sentenced to ten days in the Palm Beach County jail followed by two years of probation. While we acknowledge that the merits of Pamphile’s appeal appear to be strong, his defense attorney did not properly reserve Pamphile’s right to appeal. As such, we have no choice but to affirm the trial court on this direct appeal.

As a general rule, defendants may not directly appeal after pleading guilty or nolo contendere. Fla. R. App. P. 9.140(b)(2)(A). However, a defendant will be permitted to appeal certain issues after pleading guilty or nolo contendere if the right to appeal is properly reserved. Fla. R. App. P. 9.140(b)(2)(A)(i) (“A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.”); § 924.06(3), Fla. Stat. (2008) (“[A] defendant who pleads nolo contendere with no express reservation of the right to appeal a legally disposi-tive issue, shall have no right to a direct appeal.”). Thus, without both an express reservation of the right to appeal and a finding that the issue is dispositive, through either a trial court’s ruling or a stipulation by the state, a defendant who pleads guilty or nolo contendere has no right to a direct appeal.

In the instant case, nothing in the record reflects that Pamphile’s attorney expressly reserved Pamphile’s right to appeal the denial of the motion to suppress. Pamphile and his attorney signed a pre-printed standardized document that is intended to reiterate, in written form, the various rights being waived and acknowl-edgements that are part of a legally sound colloquy between a defendant and the court (“the plea form”).

The plea form is devoid of an express reservation of the right to appeal and likewise the colloquy before the trial court did not include the defendant’s express reservation of his right to appeal.

Pamphile’s attorney also failed to obtain a proper finding that the ruling on the motion to suppress was dispositive. The plea form contained standard language indicating that the defendant acknowledged a waiver of his right to appeal, next to which Pamphile placed his initials. Below the waiver and Pamphile’s initials, someone interlineated the words, “Defendant pleads nolo contendere and the parties stipulate that the motion to suppress is dispositive.” It is unclear who wrote this on the plea form, and more importantly, only Pamphile’s signature and that of his attorney appear on the plea form. There is no indication in the record that the state even knew it was written on the plea form. Indeed, there is no space on the plea form for a representative of the state to sign. Additionally, the colloquy between the court and Pamphile did not, in any way, address a reservation of a right to appeal. On the contrary, the defendant acknowledged he was waiving “each and every one of [his] constitutional rights.” Even so, had this been the only flaw in the defense attorney’s attempt to reserve his client’s right to appeal, we could have addressed the merits of this direct appeal. We have previously held that when a motion to suppress attempts to suppress contraband and the charges the defendant faces are for possession of that contraband, then a finding of dispositiveness is essentially presumed. See Diaz v. State, 34 So.3d 797, 801 (Fla. 4th DCA 2010) (“[W]here a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.”) (citation and quotation marks omitted).

Therefore, while the lack of a finding of dispositiveness is not fatal to Pamphile’s direct appeal, his attorney’s failure to expressly reserve the right to appeal the denial of the suppression motion is fatal. See Hawk v. State, 848 So.2d 475 (Fla. 5th DCA 2003).

While Pamphile did not properly reserve his right to appeal, based on the record before us, it appears that he may have a claim for ineffective assistance of counsel which is cognizable under Florida Rule of Criminal Procedure 3.850. See, e.g., Barnhill v. State, 828 So.2d 405, 407 (Fla. 5th DCA 2002) (acknowledging that a defendant may challenge a guilty plea in a rule 3.850 motion based on “allegations regarding the ineffective assistance of defense counsel in counsel’s efforts to represent the defendant during the plea proceedings”) (citation omitted); Howard v. State, 824 So.2d 1015, 1016 (Fla. 5th DCA 2002) (noting that filing a rule 3.850 motion alleging ineffective assistance of counsel is the appropriate remedy for a defendant whose attorney advised him or her to plead guilty without reserving the right to appeal).

Affirmed.

POLEN, HAZOURI and CIKLIN, JJ., concur.

      . At the conclusion of the plea hearing, Pam-phile’s attorney stated, "As you can probably see, we're going to move forward with an appeal.” We find this statement does not constitute a legally cognizable express reservation.

      . The actual language was "Á pleads NC and the parties stipulate that the MTS is disposi-tive.”


author: GROSS, C.J.

text:
    Mario Lopez JUAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4464.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Rehearing Denied July 26, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, 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.

      . § 777.011, Fla. Stat. (2009).

   GROSS, C.J.

We reverse that portion of appellant’s sentence reclassifying two third degree felonies as second degree felonies and otherwise affirm the convictions.

The State of Florida charged Mario Juarez with: (1) robbery with a firearm; (2) possession of a firearm while committing grand theft; and (3) possession of a firearm while committing false imprisonment. Three others — Boris Alvarenga, Joel Vicente, and Henry Santos — were also involved in the robbery, but Juarez was the only one on trial. The jury found Juarez guilty of robbery with a firearm, but also found that he did not actually possess the firearm. Similarly, the jury found him guilty of both grand theft and false imprisonment, and also found that he did not have actual possession of a firearm during either offense. The trial court adjudicated Juarez guilty of the three felonies and sentenced him to three concurrent terms of 14 years in prison. In doing so, the court reclassified the grand theft and false imprisonment charges as second degree felonies.

Juarez correctly argues that the reclassification of the grand theft and false imprisonment charges was error because the jury found that he did not actually possess a firearm during either offense. The Supreme Court’s construction of section 775.087(1) in State v. Rodriguez, 602 So.2d 1270 (Fla.1992), compels reversal.

Grand theft and false imprisonment are typically charged as third-degree felonies. See § 812.014(2)(e), Fla. Stat. (2008) (grand theft); § 787.02(2), Fla. Stat. (2008) (false imprisonment). However, section 775.087(1), Florida Statutes (2008), provides for reclassification of felonies when a weapon or firearm is involved in a criminal offense in certain ways. As applied to this case, subsection 775.087(l)(c) mandates that a third degree felony be reclassified as a second degree felony when “during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm.” In Rodriguez, the Supreme Court construed this statutory language and answered this certified question in the negative:

Does the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator?

602 So.2d at 1271. The Supreme Court focused on the language of subsection 775.087(1), which requires that “the defendant” carry, display, use, threaten, or attempt to use any weapon or firearm. Id. (emphasis in original). Apparently applying the rule of lenity, the Court held that

When a defendant is charged with a felony involving the “use” of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.

602 So.2d at 1272. The Court explicitly rejected the idea that a defendant could be subject to reclassification under subsection 775.087(1) as a principal. Id.

Although section 775.087 was substantially amended in 1999, the language of subsection (1) has not changed since the Supreme Court construed it in Rodriguez.

Applying Rodriguez, we reverse the grand theft and false imprisonment sentences and remand for resentencing as third degree felonies.

We briefly address the other points raised on appeal. The October 2008 date of the offense means that this case was “in the pipeline” when the Supreme Court decided Valdes v. State, 3 So.3d 1067, 1071-74 (Fla.2009). “Pipeline cases are those cases pending on direct appellate review or are otherwise not yet final at the time of a pertinent change in the law.” State v. Ruiz, 863 So.2d 1205, 1209 n. 6 (Fla.2003). Thus, Juarez may not take advantage of the “core offense” double jeopardy analysis that the Supreme Court rejected in Valdes. See Foster v. State, 861 So.2d 434, 436 n. 1 (Fla. 1st DCA 2002). We find no fundamental error in the trial court’s use of the “and/or” locution in a jury instruction. See Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008); Bryant v. State, 30 So.3d 591 (Fla. 2d DCA 2010). We find no abuse of discretion in the trial court’s admission in evidence of Juarez’s statement, which contained statements by the interrogating detective. See Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011).

Affirmed in part, reversed in part and remanded.

HAZOURI and CIKLIN, JJ., concur.

      . §§ 775.082(2)(a)l„ 812.13(1), (2)(a), Fla. Stat. (2008).

      . §§ 775.087(1), 812.014(1), (2)(c), Fla. Stat. (2008).

      .§§ 775.087(1), 787.02(2), Fla. Stat. (2008).

      .§ 775.021(1), Fla. Stat. (2009) ("The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.”).

      . See Ch. 99-12, § 1, Laws of Fla.


text:
    Edith C. PETERSON, individually, Edith C. Peterson as Trustee of the ECP Trust, and John Doe, Tenant, Appellants, v. AFFORDABLE HOMES OF PALM BEACH, INC., Appellee.
    No. 4D09-5180.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Rehearing Denied Aug. 5, 2011.
    Edith C. Peterson, West Palm Beach, Pro Se.
    Robert E. Oglesby of Robert E. Ogles-by, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We reverse an order granting summary judgment of foreclosure in favor of Affordable Homes of Palm Beach, Inc. (“Affordable Homes”) and against property owner, Edith C. Peterson (“Peterson”), because summary judgment was premature while affirmative defenses and a counterclaim for fraud were still pending.

In March 2009 Affordable Homes sued Peterson to foreclose a mortgage, alleging that she defaulted under the promissory note and mortgage on her West Palm Beach property. Peterson subsequently filed a counterclaim against Affordable Homes, arguing that Affordable Homes perpetrated a fraud by not fully disclosing that the property failed to include plumbing installation at the time of the sale. Peterson requested the court to dismiss the mortgage foreclosure action and refund all monies paid to Affordable Homes.

Affordable Homes answered the counterclaim and filed a motion to dismiss, arguing that Peterson failed to state a cause of action, as none of the mortgage documents revealed anything about “property plumbing.” In addition, Affordable Homes argued that as a third-party mortgagee it was not the seller and therefore not responsible for the non-disclosure. Peterson, however, contended that Affordable Homes was much more than a mortgagee and its principal was the seller of the property. The trial court granted the motion to dismiss Peterson’s counterclaim, but granted leave to amend the counterclaim within twenty days. The trial court subsequently granted Peterson a thirty-day extension to file an amended counterclaim.

Less than a month later, Affordable Homes moved for summary judgment. The trial court granted the motion despite the fact that the trial court had scheduled a hearing to take place a little over four months later to resolve Peterson’s pending counterclaim. No motion to sever the counterclaim was made. After the foreclosure summary judgment was granted, the trial court dismissed the counterclaim with leave to amend.

“Courts have repeatedly held that, where summary judgment is granted for a plaintiff and a counterclaim remains pending, the trial court should stay the execution of the judgment pending the resolution of the counterclaim.” Tooltrend, Inc. v. C.M.T. Utensili, S.r.l, 707 So.2d 1162, 1162 (Fla. 2d DCA 1998). “[T]he issue of fraud, raised by appellants as a defense and counterclaim, is usually considered a jury question and is not ordinarily appropriate for summary judgment proceedings.” L & S Food Servs., Inc. v. Roberts Cafeteria, Inc., 422 So.2d 45, 45 (Fla. 2d DCA 1982). See also Millennium Group I, L.L.C. v. Attorneys Title Ins. Fund, Inc., 847 So.2d 1115, 1117 (Fla. 1st DCA 2003) (stating that when summary judgment is granted for one party and a counterclaim on an original claim remains pending, the trial court should stay the execution of the judgment pending the resolution of the remaining claim).

Here, allowing the foreclosure action to proceed before deciding Peterson’s counterclaim effectively denied Peterson the right to a jury trial, which she had demanded in her counterclaim. See Del Rio v. Brandon, 696 So.2d 1197, 1198 (Fla. 3d DCA 1997). “The purpose of the compulsory counterclaim is to promote judicial efficiency by requiring defendants to raise claims arising from the same ‘transaction or occurrence’ as the plaintiffs claim.” Id. In Londono v. Turkey Creek, Inc., 609 So.2d 14, 20 (Fla.1992), our supreme court explained “transaction or occurrence,” using the “logical relationship test” in order to determine whether a claim was compulsory:

A claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.

Id.

Here, Peterson’s counterclaim alleged fraud on the part of Affordable Homes in connection with the purchase of the property. Her counterclaim was compulsory, as issues of fact which were “logically related” remained as to the liability of Affordable Homes. Thus final summary judgment of foreclosure should not have been ordered before the trial court considered it. We therefore reverse the order granting summary judgment and remand this cause for further proceedings.

Reversed and Remanded.

WARNER, STEVENSON and TAYLOR, JJ., concur.

      . Costs for the new septic system required by the Palm Beach Health Department exceeded $19,000.00.


text:
    Gary PARKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1111.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied July 19, 2011.
    Orville McKenzie, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA2011).


text:
    Yvonne LOVE, Appellant, v. CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Inc., Appellee.
    No. 3D07-1718.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied Aug. 4, 2011.
    Lawrence B. Friedman, Boca Raton; Michael D. Eriksen, West Palm Beach, for appellant.
    Mase Lara Eversole and Curtis J. Mase, Valentina M. Tejera, and David B. Stau-ber, Miami, for appellee.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Leslie v. Carnival Corp., 22 So.3d 561 (Fla. 3d DCA 2008), affirmed, 22 So.3d 567 (Fla. 3d DCA 2009)(en banc), review denied, 44 So.3d 1178 (Fla.2010), cert. denied, — U.S. -, 131 S.Ct. 1603, 179 L.Ed.2d 499 (2011).


text:
    Neil GOLDBERG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-815.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied July 7, 2011.
    Paul Morris, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Neil Goldberg appeals his sentence imposed upon violation of probation. We reverse and remand for resentencing because we find that the trial court improperly excluded relevant evidence offered by the defendant to rebut testimony by one victim and by the parent of another victim.

In 2008, the defendant was charged with three counts of driving under the influence of prescription drugs and causing an accident with serious bodily injury. He struck three motorcycle riders with his car. There was evidence that the defendant consumed the drugs after the accident. The first officer on the scene testified that the defendant was not impaired. The state, the victims, and the defendant ultimately agreed to a plea of guilty in exchange for a sentence of four years on probation and substantial restitution.

In January 2010, an affidavit of violation of probation was filed against the defendant for smoking marijuana as disclosed by a random drug test. The defendant admitted the violation, and a sentencing hearing before a different judge followed. The defendant presented expert testimony regarding his efforts to stay drug-free and limited relapse, and also provided testimony and letters of support from members of the community. The state presented the testimony of one of the three victims and of another victim’s father regarding the events of the accident. They accused the defendant of being uncaring, of being callous and of staying in his car after the accident, instead of offering help. Thereafter, the judge adjourned the hearing because he wanted to allocate more time to the case.

When the hearing was reconvened, nineteen days later, the defendant sought to rebut the testimony the state had introduced. He requested that the court view the five-minute videotape of the accident scene filmed by the first patrol car that arrived on the scene, because the defendant said it would show both remorse and his efforts to give immediate aid to the victims. He offered (and later proffered) the videotape to rebut the state’s testimony that he was not remorseful and had not offered help. The state objected. It argued that it would be improper for the court to consider the defendant’s evidence because the underlying case was closed. The court did not allow the defendant to present any further evidence. The court sentenced defendant to 11.75 years in prison on each count, to be served concurrently. This appeal followed.

We hold that the court improperly denied the defendant the opportunity to rebut the state’s evidence. Florida Rule of Criminal Procedure 3.720(b) provides that “[t]he court shall entertain submissions and evidence by the parties that are relevant to the sentence.” (Emphasis provided). Here, as in Hargis v. State, 451 So.2d 551 (Fla. 5th DCA 1984), “the case must be remanded for a sentencing hearing and resentencing.” Id. at 552 (citing Miller v. State, 435 So.2d 258 (Fla. 3d DCA 1983)). The sentencing judge was new to the case and not familiar with the facts. The court considered evidence from the state and victims regarding the accident and the defendant’s alleged lack of remorse at the accident scene. Particularly before a new judge, the defendant was entitled to present evidence on these points to rebut the picture the state had drawn.

On remand, the defendant shall be permitted to present the proffered evidence.

Reversed and remanded.


text:
    Byron K. DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1146.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Byron K. Douglas, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant’s direct appeal is currently pending, and thus, the trial court was without jurisdiction to rule on the motion to correct illegal sentence. See Day v. State, 770 So.2d 1262 (Fla. 1st DCA 2000) (holding that effective January 13, 2000, a party may not file a rule 3.800(a) motion during the pendency of a direct appeal). “A prematurely filed motion for postconvietion relief should be dismissed by a trial court and may be refiled after the direct appeal is final.” Bunkley v. State, 800 So.2d 663, 664 (Fla. 2d DCA 2001). Thus, we reverse the denial of the appellant’s motion and remand for the trial court to dismiss the motion without prejudice to the appellant’s right to refile after his direct appeal is final.

REVERSED and REMANDED with instructions.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Gilbert THEISS, Appellant, v. CITY OF PANAMA CITY BEACH and Florida League of Cities, Inc., Appellees.
    No. 1D11-0307.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.

      Douglas F. Miller of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that denies his claim for a primary care provider under his employer’s managed care arrangement. Because the JCC errantly denied this benefit, we reverse.

Claimant suffered compensable injuries, both physical and psychological, for which he was furnished authorized medical care by his employer and its workers’ compensation carrier (E/C), under a managed care arrangement. Claimant sought to exercise his right to select or change his primary care provider, as seemingly guaranteed by section 440.134(6)(c)10., Florida Statutes (2008), and Florida Administrative Code Rule 59A-23.003(7)(i) (providing injured employee “shall have the right to select a primary care provider and thereafter, to request one change of primary care provider ... during the course of treatment”).

The JCC denied Claimant the right to select or change his primary care provider on the basis that Claimant failed to introduce the managed care plan or agreement (the contract entered into by the Employer with a third party) into evidence, and thereby failed to persuasively establish such a right. The JCC alternatively concluded that Claimant was required to prove that a primary care provider, or a change in same, was medically necessary.

Because every workers’ compensation managed care arrangement under section 440.134 “must include” a provision “for the selection of a primary care provider by the employee,” and further, because the Florida Administrative Code Rule regulating managed care authorization procedures provides that every “injured employee” receiving medical services under a workers’ compensation managed care arrangement “shall have the right to select a primary care provider and, thereafter, to request one change of primary care provider ... during the course of treatment for each injury,” we conclude it was error for the JCC to require Claimant to introduce the managed care plan into evidence to establish such a legal right. The right is established as a matter of legislative decree, to which any contractual rights would be subordinate. See § 440.134(6)(c)10., Fla. Stat. (2008); see also Fla. Admin. Code R. 59A-23.003(7)(i).

Moreover, because an injured employee has been legislatively granted, in mandatory language, the unmitigated right to select and change his or her primary care provider during the course of treatment for an injury, we conclude that this right is not dependent upon a showing of medical necessity. See Nunez v. Pulte Homes, Inc., 985 So.2d 695 (Fla. 1st DCA 2008) (concluding that statute providing injured employee mandatory right to change of physician during “the course of treatment” does not require employee to demonstrate medical necessity of change); see also Sunbelt Health Care v. Galva, 7 So.3d 556, 560-61 (Fla. 1st DCA 2009) (stating “[u]nder the managed care statute, the managed care plan must include a provision for the employee’s selection of a primary care provider,” and declaring that such right is “similar and parallel” to right to change in physician contained in section 440.13(2)(f) — a right not dependent on showing of medical necessity).

Accordingly, we REVERSE the order denying Claimant the right to select or change his primary care provider, and REMAND for the entry of an order granting Claimant the benefit requested.

BENTON, C.J., LEWIS, J., and DODSON, CHARLES W„ Associate Judge, concur.


text:
    Ray JAMES, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D10-5607.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Ray James, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of prohibition is DENIED on the merits. See Dickinson v. Fla. Natl. Org. for Women, 763 So.2d 1245, 1247 (Fla. 4th DCA 2000) (stating that in “the case of state agencies, the county of ‘residence’ is where the agency’s headquarters are located”); Pettway v. State, 776 So.2d 930 (Fla.2000) (holding that when a party has been banned from appearing pro se in a particular tribunal, he or she cannot go to another tribunal to avoid the consequences of the sanction).

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


text:
    Hugh Jerome PICKENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5287.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the imposition of judgment and sentence. However, we remand for the correction of a scrivener’s error. In case 09-1298, the appellant was convicted of armed robbery pursuant to section 812.13(2)(a), not section 812.135 as listed. In case 09-1299, the appellant was convicted of home invasion robbery, not armed robbery.

AFFIRMED, but REMANDED with instructions to correct the scrivener’s errors.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Felipe CASTILLO, Appellant, v. TOTAL SOURCE, INC., and AIG, Appellees.
    No. 1D10-4172.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Carlos D. Cabrera of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Appellees’ motion for rehearing to the extent that we withdraw our previous opinion filed March 31, 2011, and substitute the following:

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC), which finds, in part, that he is not entitled to a “onetime” change of physician under section 440.13(2)(f), Florida Statutes, because he had already exercised that option. We reverse that portion of the order.

Claimant’s request — leading to the purported “one-time” change — was by petition for benefits seeking “[a]uthorization of spine surgery evaluation for possible cervical diskectomy as this is medically necessary and as recommended by Claimant’s authorized treating physician, Andrew S. Ellowitz, M.D.” The Employer/Carrier (E/C) responded by scheduling an appointment with Dr. Jarolem, who subsequently treated Claimant several times. Thereafter, Claimant filed a petition for benefits seeking “authorization of Dr. Andrew El-lowitz as a change of orthopedists.” The E/C did not respond, and in subsequent litigation asserted that “Dr. Ellowitz had been authorized previously with Claimant changing orthopedist to Dr. Jarolem subsequent thereto.” Claimant argued he never requested a change while treating with Dr. Ellowitz, he never requested a change to Dr. Jarolem, the E/C did not respond to his request, and, in the alternative, Dr. Ellowitz should remain authorized because he had never been deauthorized. The JCC denied the change of physician, finding Dr. Jarolem constituted the “onetime” change of physician under paragraph (2)(f), Claimant acquiesced in the change by continuing to treat with Dr. Jarolem, and Dr. Ellowitz was deauthorized as a matter of law.

On appeal, Claimant argues his request that resulted in authorization of Dr. Jaro-lem was a request for a specialist consultation (as contemplated in section 440.13(3)(i), Florida Statutes) in accordance with Dr. Ellowitz’s prescription, made under section 440.13(2)(a), Florida Statutes, which provides that an E/C “shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require.” Claimant also argues no evidence supports the JCC’s finding that Dr. Ellowitz was deauthorized as a matter of law.

We agree with Claimant’s arguments. Nothing in the record supports the JCC’s conclusion that Dr. Jarolem was sought or provided under paragraph (2)(f). A plain reading of Claimant’s first petition for benefits indicates Dr. Jarolem was sought as medically necessary treatment provided under paragraph (2)(a). Moreover, there is no evidence suggesting Dr. Ellowitz had been deauthorized, either de facto or, because authorization under paragraph (2)(a) does not require deauthorization of a prior physician, as a matter of law.

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, THOMAS, and ROWE, JJ, concur.


author: CLARK, J.

text:
    David Nichols NASTASI and Christina Marie Nastasi, individually, and as the next best friend and natural parents of David Nastasi, a minor; and Christina Marie Nastasi as the natural parent and next best friend of Andrea Marie Carver, Andreas Joshua Carver, and Kristin Marie Carver, minors, Appellants, v. The ST. JOE COMPANY, a Florida Corporation, and Arvida Home Builders, L.P., a Florida Limited Partnership, Appellees.
    No. 1D10-3793.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    William A. Seacrest, Sr., Navarre, for Appellants.
    Christine Davis Graves of Carlton Fields PA., Tallahassee, and Bryan W. Duke, of The St. Joe Company, Tallahassee, for Ap-pellees.
   CLARK, J.

The appellants challenge the circuit court’s dismissal of the appellants’ civil action, upon a failure to prosecute. That action should not have been dismissed, as the appellants made a sufficient filing within the time required under Florida Rule of Civil Procedure 1.420(e).

The appellants commenced a civil action for damages, discovery ensued and various filings were made. After an initial period of inactivity, additional filings were made. After a subsequent ten-month period of inactivity, the court entered an order pursuant to rule 1.420(e), advising the appellants that if no further record activity occurred within the next 60 days the case would be dismissed for lack of prosecution. Sixteen days later the appellants’ counsel filed a motion to withdraw as attorney of record and asked that the appellants be given a reasonable amount of time to obtain other counsel.

No other filings were made during the 60-day time referenced in the court’s order. A hearing was held and the court indicated that it would grant counsel’s motion to withdraw, but that the case would be dismissed. The court thereafter entered the order which is now being appealed, dismissing the appellants’ action due to a failure to prosecute.

In accordance with rule 1.420(e) and the court’s order giving notice, the case should not have been dismissed because counsel’s motion was filed within the specified 60-day time. While Chemrock Corp. v. Tampa Electric Co., 23 So.3d 759 (Fla. 1st DCA 2009), review granted 28 So.3d 44 (Fla. 2010), indicates that a dismissal is not avoided unless the 60-day filing is of a type which will recommence prosecution, counsel’s request for the appellants to be given time to obtain other representation satisfies that standard, because counsel advised the court that he and the appellants disagreed as to the continued handling of the case. The filing was not meaningless or inconsequential to the case’s progression. Because this filing comports with Chemrock and rule 1.420(e), dismissal of the appellants’ action for damages was erroneous.

The appealed order is reversed, and the case is remanded.

ROBERTS and WETHERELL, JJ., concur.


text:
    Jody POSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1417.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction and sentence for lewd or lascivious molestation pursuant to section 800.04(5), Florida Statutes (2007). Appellant raises a number of issues. We find no merit as to any of the issues related to his conviction. We find merit as to one issue related to sentencing. We determine we are required to quash the sentence and remand for resentencing before a different judge pursuant to the dictates of Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010).

The sentence is quashed, and we remand for resentencing.

WOLF, PADOVANO, and ROWE, JJ., concur.


text:
    Anel DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1112.
    District Court of Appeal of Florida, Third District.
    July 1, 2011.
    Rehearing Denied Aug. 4, 2011.
    Andrés A. Quintero, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. State v. Kindelan, 754 So.2d 75 (Fla. 3d DCA 2000).


author: EMAS, J.

text:
    D.P., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-1139.
    District Court of Appeal of Florida, Third District.
    July 5, 2011.
    Rehearing Denied July 21, 2011.

      Carlos J. Martinez, Public Defender, and Joanna G. Ingalls and Michael T. Davis, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael C. Greenberg and Kari Joseph, Assistant Attorneys General, for appellee.
    Before GERSTEN, WELLS, and EMAS, JJ.
   EMAS, J.

The State of Florida filed a delinquency petition alleging that D.P., a juvenile, committed the acts of carrying a concealed firearm and possession of a firearm by a minor. D.P. filed a motion to suppress the firearm on the ground that the arresting officer did not have reasonable suspicion to justify the pat-down search that led to the discovery of the firearm on D.P.’s person. The trial court denied D.P.’s motion to suppress and, following an adjudicatory hearing, the court adjudicated D.P. delinquent on both charges. D.P. appeals the trial court’s order denying the motion to suppress. We affirm.

The evidence presented at the hearing on the motion to suppress revealed the following:

Officer Tate was on patrol and in uniform when he responded to a call at about one o’clock in the morning regarding juveniles loitering in a parking lot following a party. When Officer Tate arrived, a young woman approached him. Officer Tate described the woman as very nervous and fearful; her hands were shaking and she was yelling. The young woman pointed directly at D.P. and told the officer “he just pointed a gun at me, and he has a gun.”

Officer Tate believed the young woman was credible, given her fearful state and outward appearance. Although Officer Tate could have obtained the woman’s identity at that point, he did not do so; instead, he approached D.P. to verify the information he had just been provided.

Officer Tate advised D.P. that someone reported that he (D.P.) had a gun on him. D.P. said it was not him, but some other boy. Officer Tate told D.P. that he wanted to conduct a pat-down search for officer safety, to make sure D.P. had no weapons on him. D.P. then began backing away from the officer, at which point Officer Tate became concerned that D.P. might be armed.

Officer Tate directed D.P. to put his hands on a nearby vehicle, and then conducted a pat-down search of D.P.’s outer clothing. Feeling a hard metallic object in D.P.’s right front pocket, Officer Tate removed what turned out to be a firearm. After taking D.P. into custody, Officer Tate discovered that the young woman had left.

In Teiry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court announced an exception to the fourth amendment’s probable cause requirement: temporary seizures and minimally intrusive searches of the person are permissible when a law enforcement officer has an objectively reasonable suspicion that criminal activity may be afoot and that the person may be armed.

[Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Id. at 30-31, 88 S.Ct. 1868.

In Terry, the officer’s own observations provided the requisite reasonable suspicion. However, information from a third party may also provide the necessary reasonable suspicion to justify a temporary detention and pat-down search of a subject. In analyzing whether third-party information can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided. In its analysis, the trial court must consider the “totality of the circumstances.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). As the United States Supreme Court observed in that case:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause ... [T]he unverified tip from [a] known informant might not [be] reliable enough to establish probable cause, but [is] nevertheless sufficiently reliable to justify a Terry stop. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Id. (citations omitted).

At the low end of the reliability scale is the anonymous tipster. This individual neither identifies herself nor provides any contact information. Absent some corroboration of the information provided or other indicia of reliability, the anonymous tipster is generally considered too unreliable to provide the reasonable suspicion necessary for a Terry stop. See, e.g., Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Baptiste v. State, 995 So.2d 285 (Fla.2008); Hetland v. State, 387 So.2d 963 (Fla.1980).

On the other end of the reliability scale is the known informant, whose identity is known to the officer and who has provided reliable and verifiable information in the past. These informants have an established reputation of reliability with law enforcement, and can be held accountable if their information proves to be fabricated. Information provided by these known informants is generally found to have a greater indicia of reliability and therefore can often provide the reasonable suspicion necessary for a Terry stop. See, e.g., Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The citizen informant is situated on the reliability scale somewhere between these two extremes. As our Supreme Court observed in Baptiste:

State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a “citizen informant” who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale.

995 So.2d at 291.

D.P. urges us to classify the young woman as an anonymous tipster; the State argues that she is a citizen informant. We agree with the trial court that, under the totality of the circumstances, and notwithstanding that she never identified herself to the officer, the young woman bears a greater resemblance to a citizen informant than she does to a truly anonymous tipster.

Unlike a “truly anonymous” tipster, see Baptiste, 995 So.2d at 291, the young woman in the instant case did not simply make an anonymous phone call. Rather, she provided her information on the scene, in a face-to-face encounter with the officer, in the presence of D.P.

Appellant argues that reversal is warranted based upon Solino v. State, 763 So.2d 1249 (Fla. 4th DCA 2000), and State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998). However, each of these cases is factually distinguishable from the instant case. In Solino, a passing motorist flagged down a deputy to report that a bottle had been tossed out the window of a vehicle. The motorist gave the deputy a description of the vehicle, and the deputy soon thereafter stopped a vehicle matching that description. The informant did not give his name to the deputy, nor did the deputy take down the license tag of the informant. Following the stop, Solino was arrested for driving with a suspended license and was placed in handcuffs, at which time he ran from the scene. He was later captured and charged with escape.

Solino filed a motion to suppress, contending that the stop was based upon the unconfirmed report of an anonymous tipster. The deputy conceded that he made the stop based solely upon the statement of the unidentified motorist. The trial court denied the motion to suppress, finding that the deputy had reasonable suspicion to stop Solino’s vehicle. The Fourth District reversed, holding that the passing motorist was nothing more than an anonymous tipster who could not be identified or located and whose information was not corroborated. The deputy had not seen or heard anything that would have given him reason to stop the vehicle.

The Solino Court relied upon the analysis in Rewis, in which several deputies were on duty working a traffic detail at a highway rest stop. A motorist drove into the rest stop and told the deputies that he saw a Firebird weaving all over the road. The motorist provided the license number for the Firebird, and then drove away. The deputies did not obtain the motorist’s identity. At some point thereafter, the Firebird drove into the rest stop and the deputies stopped the vehicle, based solely on the motorist’s tip. Following the stop, the deputies found heroin in the vehicle. The trial court granted Rewis’ motion to suppress and the Fifth District affirmed, holding:

Although the deputies were given the tip by the passing driver, for all practical purposes he was an anonymous tipster. His identity is unknown, any means of locating him is unknown, as are his motives for disclosing the information. He might have pointed out the Firebird because he was angered by its driver, might have been cut off by the driver or been the recipient of an obscene gesture, or for any reason other than the one he gave deputies. The deputies had no way to corroborate the information, and agreed at the hearing that they had not themselves seen anything that would have given them reason to stop the Fire-bird other than the tip.

Rewis, 722 So.2d at 864.

First, it should be noted that Rewis and Solino were decided before the supreme court’s decision in Baptiste, which recognized a distinction between the “truly anonymous tipster” and a face-to-face (though unidentified) citizen informant. More importantly, however, the instant case presents additional circumstances absent from Rewis and Solino:

1. The information was provided to the officer at the scene and was immediately investigated; unlike Rewis and Solino, there was no time lag between law enforcement’s receipt of the information and the officer’s subsequent encounter with the, suspect.
2. The officer observed the demeanor and evaluated the credibility of the informant as she conveyed the information. Officer Tate testified that the young woman was nervous and fearful, and her hands shook as she spoke with him. Officer Tate believed, based upon these observations, that the woman provided reliable information to him. In Rewis and Solino, no evidence was presented that the deputies evaluated the reliability or credibility of the informant or relied upon such observations or evaluations in making the initial stop.
3. By providing this information in the presence of D.P. himself, the informant exposed herself to the risk of reprisal (perceived or real) from D.P. or others who were present during the encounter.
4. When Officer Tate told D.P. that he wanted to conduct a pat-down search to make sure he did not have a weapon, D.P. began backing away from the officer, which caused Officer Tate to believe that D.P. might be armed.

These additional factors serve to distinguish the instant case from Rewis and Solino. The circumstances in the instant case are largely indistinguishable from United States v. Heard, 367 F.3d 1275 (11th Cir.2004). In Heard, a police officer on patrol responded to a call regarding a fight in a public train station. Upon arrival, he saw a man and a woman arguing. The woman demanded money from the man (Heard). Heard admitted to the officer that he owed the woman money. After the officer suggested that Heard pay the woman the money he owed her, Heard walked away. As Heard left, the woman told the officer that Heard was carrying a weapon. The officer turned toward Heard, made eye contact, and ordered Heard to put his hands up. The officer began walking toward Heard, and instructed the woman to remain at the station to give a statement. The woman instead caught an arriving train, never to be seen again by the officer. To protect his own safety and those of the train station patrons, the officer conducted a Terry frisk, finding a firearm.

Heard was charged with possession of a firearm by a convicted felon, and moved to suppress the firearm. The trial court denied Heard’s motion. On appeal, the Eleventh Circuit framed the issue: “We must decide whether the anonymous face-to-face tip given to [the officer] contains ‘sufficient indicia of reliability such that Gore had a reasonable suspicion to stop and frisk Heard.” Heard, 367 F.3d at 1278.

Distinguishing Heard, from the line of anonymous tip cases, the Eleventh Circuit found significant that the officer “had an opportunity to judge the reliability of the face-to-face informant in this case. A face-to-face anonymous tip is presumed to be inherently more reliable than an anonymous telephone tip because the officers receiving the information have an opportunity to observe the demeanor and perceived credibility of the informant.” Id. at 1279. The Court noted the officer’s testimony that the woman seemed frightened when she reported that Heard was armed, and the officer also assumed the woman and Heard had some type of relationship, since they argued over money and Heard paid the money she demanded. The Court also found that Heard’s “stunned” reaction when approached by the officer did not undermine or dispel the reasonable suspicion: “While a suspect’s adverse reaction to police may independently corroborate information provided by an anonymous informant, a compliance reaction does not correspondingly undermine the tip’s reliability.” Id. at 1280.

There are two factual differences between Heard and the instant case: in Heard, it appeared that the subject and the woman knew each other in some manner, which could be considered to enhance the reliability of the woman’s information. In our case, there was no evidence that D.P. and the young woman knew each other.

Additionally, in Heard, the subject appeared “stunned” and complied when the officer asked him to put his hands up. By contrast, in our case, D.P. backed away from the officer when the officer advised D.P. of the information provided by the young woman. This conduct by D.P., and the officer’s observation of it, provided additional support for the officer’s reasonable suspicion that D.P. was armed or involved in criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“Our cases have ... recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”).

On balance, we find the analysis in Heard, to be well-reasoned and applicable to this case. Under the totality of the circumstances, the information provided by the young woman in a face-to-face encounter, together with Officer Tate’s observations of the young woman and of D.P., support the trial court’s finding that the officer had reasonable suspicion to temporarily detain D.P. and conduct a limited pat-down search for weapons. The trial court properly denied the motion to suppress.

Affirmed.

      . Officer Tate was the only officer on the scene.

      . Article I, Section 12 of the Florida Constitution guarantees its citizens the right to be free from unreasonable searches and seizures, and expressly provides that "this right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”

      . See, e.g., Fla. Stat. § 817.49 (2010) ("Whoever willfully ... conveys ... to any law enforcement officer ... false information or reports concerning the alleged commission of any crime ... shall upon conviction thereof be guilty of a misdemeanor of the first degree

      . This underlying indicia of reliability provides the very same rationale for permitting introduction of "excited utterances" as an exception to the hearsay rule. § 90.803(2), Fla. Stat. (2003). See, e.g., Marshall v. State, 915 So.2d 264 (Fla. 4th DCA 2005).

      . See Baptiste, 995 So.2d at 291 (citing United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000)).

      .We are required to interpret our constitutional search and seizure provision in conformity with the fourth amendment to the United States Constitution, as interpreted by the United States Supreme Court. In the absence of controlling precedent from the United States Supreme Court, our appellate courts may look to other state and federal court decisions for guidance. See, e.g., Higerd v. State, 54 So.3d 513 (Fla. 1st DCA 2010).


text:
    Matthew J. CURTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2001.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2011.
    James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

DISMISSED. See Good v. State, 11 So.3d 991 (Fla. 5th DCA 2009); Griffis v. State, 759 So.2d 668 (Fla.2000).

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


text:
    Rudolph MOATS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3853.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ransone v. State, 48 So.3d 692 (Fla.2010).

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


text:
    Dominique Louise BRICE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5281.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Thomas G. Bowman of The Law Office of Thomas G. Bowman, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s raising issues of ineffective assistance of counsel by appropriate post-conviction relief proceedings.

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


text:
    Renand VILJEAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1396.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Renand Viljean, West Palm Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order revoking his probation for failure to pay court costs and failure to undergo a court-ordered psychological evaluation. At the revocation of probation hearing, the State withdrew the violation charge for failure to complete the psychological evaluation. Because the State concedes that the order incorrectly reflects that the defendant failed to complete the evaluation and because we find no other basis for error, we affirm the order and remand solely for correction of the scrivener’s error. See Farrugia v. State, 967 So.2d 1068 (Fla. 4th DCA2007).

Affirmed but remanded.

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    Brian ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1995.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Alvarino, 585 So.2d 1094, 1095 (Fla. 3d DCA 1991) (holding that there is no requirement that a measuring device used to determine that a drug sale took place within 1,000 feet of a school must be previously calibrated or otherwise independently tested for accuracy).

TAYLOR, HAZOURI and CONNER, JJ., concur.


author: STEVENSON, J.

text:
    Ramona HUNT, Appellant, v. Alpheus FORBES, Appellee.
    No. 4D10-2487.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Lisa G. Dos Santos of the Law Offices of Fisher & Associates, P.A., Fort Pierce, for appellant.
    No appearance for appellee.
   STEVENSON, J.

Appellant filed a petition to determine the incapacity of her grandfather and challenges an order of the trial court requiring her to pay the fees of the examining committee. Because we find that the instant appeal was not timely brought, we dismiss for lack of jurisdiction.

On February 4,2010, the trial court rendered its order dismissing the appellant’s petition for incapacity and an “Order for Payment of Fees.” The fee order required appellant to pay $300 and $250, respectively, to the named physicians and to provide the court with proof of payment within thirty days. This February 4, 2010 fee order was a final, appealable order. Cf. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974) (“Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.”); Baron v. Provencial, 908 So.2d 526, 527-28 (Fla. 4th DCA 2005) (recognizing that finality of order is not affected by trial court’s retention of jurisdiction to enforce the order). As such, appellant had ten days to serve her motion for rehearing. See Fla. Prob. R. 5.020(d). Appellant did not serve her “Notice of Letter to Judge Conner,” attacking the order requiring her to pay the examining committee members’ fees, and her “Objection to Payment of Fees of Examining Committee Members” until March 26, 2010. The motion for rehearing was thus untimely and could not have served to toll rendition of the fee order and extend the time for the taking of an appeal. See Fla. R. App. P. 9.020(h) (recognizing that an authorized and timely motion for rehearing serves to toll rendition of final order).

Further, once the ten days for rehearing expired, the trial court lost jurisdiction to do anything other than enforce the fee order previously entered. See Epi-cor Software Corp. v. Coopers & Clarke, Inc., 928 So.2d 1249, 1250 (Fla. 3d DCA 2006). Thus, the trial court’s subsequent entry of an “Amended Final Judgment” could not serve to revive the appellant’s right to appeal the propriety of the trial court’s ruling requiring her to pay the fees.

Accordingly, the instant appeal is dismissed for lack of jurisdiction. See Fla. R. App. P. 9.110(b) (requiring notice of appeal to be filed within thirty days of rendition of order appealed); Miami-Dade County v. Peart, 843 So.2d 363, 364 (Fla. 3d DCA 2003) (recognizing that failure to file notice of appeal within thirty days “ ‘constitutes an irremediable jurisdictional defect’ ”) (quoting First Nat’l Bank in Fort Myers v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208, 208 (Fla. 1st DCA 1984)).

GROSS and GERBER, JJ., concur.


text:
    Jamie Ciera JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3107.
    District Court of Appeal of Florida, First District.
    July 6, 2011.
    Jamie Ciera James, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    Albert WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3109.
    District Court of Appeal of Florida, First District.
    July 6, 2011.
    Albert Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Allen v. Young, 824 So.2d 970 (Fla. 1st DCA 2002).

WETHERELL, MARSTILLER, and RAY, JJ., concur.


author: LEWIS, J.

text:
    FEATURED PROPERTIES, LLC, Appellant, v. BLKY, LLC, Appellee.
    No. 1D10-4483.
    District Court of Appeal of Florida, First District.
    July 7, 2011.

      Michael C. Rayboun and Jessica L. Slat-ten of Rayboun Mulligan, PLLC, Tallahassee, for Appellant.
    John R. Dowd, Jr. and Charles G. Brac-kins of Dowd Law Firm, P.A., Ft. Walton Beach, for Appellee.
   LEWIS, J.

Featured Properties, LLC, Appellant, appeals the trial court’s final judgment awarding BLKY, LLC, Appellee, $377,555.56 in damages. Because the trial court failed to state the basis for its ruling and to include factual findings in its order, we are unable to conduct a meaningful appellate review. Accordingly, we reverse and remand for the trial court to enter an amended final judgment reflecting the basis of its decision and to make factual findings pertinent to that ruling.

In 2005, BLKY entered into four contracts with Featured Properties in which BLKY agreed to sell and Featured Properties agreed to buy four units located in a townhome development. Each of the contracts contained a “Brokers” section, which identified Price Morgan, LLC, as the “Selling Firm” and “Selling Sales Associate,” and Ken Yates as the “Listing Sales Associate” from ERA Neubauer Real Estate, Inc., the “Listing Firm.” In addition to acting as the listing sales associate for the properties at issue, Yates was a principal and part owner of BLKY when the contracts were executed. The contracts did not contain a written disclosure divulging Yates’ ownership interest, and no other written disclosure provided this information.

After the closings on the four units did not occur, BLKY sued Featured Properties for damages for breach of contract. In its answer, Featured Properties argued that it had the right to void the contracts because Yates failed to disclose his “significant ownership interest” in BLKY while acting as the listing agent for the properties. Featured Properties counterclaimed for rescission based on the same theory.

When the case proceeded to an eviden-tiary hearing, the parties agreed that the only issue was whether Yates had acted as an undisclosed dual agent by undertaking fiduciary obligations to both Featured Properties and BLKY without disclosing his ownership interest in the latter company to the former company. At the close of the hearing, BLKY argued, among other things, that Featured Properties waived its ability to void the contracts because even after it was informed of Yates’ ownership interest six or seven months after the contracts were executed, Featured Properties did not attempt to cancel the contracts. After the trial judge inquired whether there were “any cases that talked about estoppel,” Featured Properties interjected, maintaining that the parties had not “been confronted with any issues of estoppel or waiver.” After the hearing, the parties submitted written arguments addressing waiver and estoppel.

In its judgment awarding BLKY $377,555.56 in damages, the trial court did not articulate a legal basis for its ruling. Specifically, the court did not indicate whether BLKY was the prevailing party because Yates was not an undisclosed agent or, rather, because even if Yates was an undisclosed dual agent, Featured Properties had either waived its right to void the contract or was estopped from rescinding the same. Additionally, as Featured Properties noted in its motion for rehearing, the trial court’s judgment did not include findings of fact. After the motion for rehearing was denied, this appeal followed.

Featured Properties raises two issues on appeal. First, Featured Properties argues that the trial court’s failure to make factual findings on the dual agency issue precludes this Court from conducting a meaningful appellate review. In the absence of such findings, Featured Properties maintains that it is unclear whether the trial court relied on the dual agency inquiry or the affirmative defenses of waiver and es-toppel in ruling in BLKY’s favor. Under these circumstances, Featured Properties asserts that remand is required. Second, Featured Properties argues that if the trial court based its order on the affirmative defenses of waiver or estoppel, reversal is warranted because these defenses were neither pled nor tried by consent. Given that the legal grounds upon which the trial court relied are unclear, this inquiry is not ripe for review. See D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 489 (Fla. 4th DCA 2003) (“[S]ince the initial determination of whether there was a fraudulent misrepresentation has yet to be resolved, this issue is not ripe for review.”). Thus, we proceed only to address the first issue.

“Sitting as an appellate court, we are precluded from making factual findings ourselves in the first instance.” Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009); Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”). Relatedly, we “cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.” Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009). Instead, “[w]here ... orders do not contain sufficient findings of fact ..., appellate courts typically deem them incapable of meaningful review and they remand with directions to the issuing courts to make the necessary findings.” In re Doe, 932 So.2d 278, 283 (Fla. 2d DCA 2005) (citation omitted); see also Douglass, 9 So.3d at 637 (quoting Doe for this proposition in a case involving the construction of a contract).

Even where factual findings are not required by a procedural rule, statute, or other authority, remand may be appropriate where “effective appellate review is made impossible by the absence of specific findings.” Shaw v. Shaw, 445 So.2d 411, 412 (Fla. 4th DCA 1984). In Shaw v. Shaw, the Fourth District considered the propriety of the trial court’s order denying the former husband’s petition for modification of alimony. Id. There, the threshold issue at trial was whether the parties’ separation agreement was a genuine property settlement agreement not subject to modification or, alternatively, whether its support provision was severable and subject to modification. Id. In its order denying the former husband’s requested relief, the trial court “did not specify whether the petition was being denied because the agreement was not subject to modification or, rather, because even though the agreement was subject to modification, the appellant had failed to establish a case for modification.” Id. On appeal, the Fourth District concluded that Shaw “represents the perfect example of a case where effective appellate review is made impossible by the absence of specific findings.” Id. After declining to speculate as to the legal basis for the trial court’s ruling, the Shaw court reasoned that because the trier of fact was charged with “resolv[ing] the disputed issue of whether modification [was] justified” and the appellate court was “limited to reviewing the propriety of that decision,” the trial court’s failure to articulate the legal basis for its ruling precluded meaningful appellate review. Id. (“We simply do not know what the trial judge did, and, not knowing, do not believe we can properly address the issues raised on appeal.”). Consequently, the Fourth District reversed and remanded with instructions for the trial court to enter an amended final judgment “reflecting the basis of its decision.” Id.

Here, as in Shaw, the trial court did not articulate the legal basis for its ruling. Thus, it is unclear whether the trial court determined that Yates was an undisclosed dual agent or, alternatively, whether the affirmative defenses of waiver and estoppel precluded Featured Properties from prevailing irrespective of the determination on dual agency. See Shaw, 445 So.2d at 412 (explaining how either of two legal grounds could have supported the trial court’s ruling). Review of the trial court’s order is additionally compounded by the court’s failure to make factual findings. See Bueno, 20 So.3d at 998 (explaining that an appellate court cannot use the tipsy coachman rule where the trial court has not made factual findings). Because we cannot make factual findings in the first instance on the distinct issues of dual agency, waiver, and estoppel, and because we decline to speculate as to the legal basis for the trial court’s ruling, we are unable to engage in meaningful appellate review. Consequently, we reverse and remand with instructions for the trial court to enter an amended final judgment reflecting the basis of its decision, Shaw, 445 So.2d at 412, and to make factual findings pertinent to that ruling, Douglass, 9 So.3d at 637.

REVERSED and REMANDED with directions.

DAVIS and WETHERELL, JJ., concur.


text:
    Jamarl VAUGHN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2790.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jamarl Vaughn, the appellant, raises four issues on appeal. We affirm the first two without discussion. However, we reverse and remand the remaining two issues for correction of sentencing errors.

The state correctly concedes that the court’s written order imposing Vaughn’s sentence conflicts with the court’s oral pronouncement regarding credit for time served. A written sentence that conflicts with an oral pronouncement of a sentence is an illegal sentence, and may be remedied in a rule 3.800 proceeding. Allwine v. State, 42 So.3d 291, 293 (Fla. 4th DCA 2010) (citing Williams v. State, 957 So.2d 600, 603 (Fla.2007)). Vaughn preserved the sentencing errors by filing a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because this motion was not ruled upon within 60 days, it is considered to have been denied. Fla. R.Crim. P. 3.800(b)(2)(B). Accordingly, we reverse and remand with directions to the trial court to correct the written sentence in accordance with the oral pronouncement.

Next, the state properly concedes error in the trial court’s imposition of Sheriffs Investigatory costs, Prosecution Investigatory costs, and the Public Defender fee. The investigatory costs were not announced at sentencing and there is no record evidence that they were requested or documented by the state. Thus, these costs should be stricken. Parker v. State, 44 So.3d 1190, 1191 (Fla. 1st DCA 2010) (striking Sheriffs Investigatory Costs and the Prosecution Investigatory costs where “there is no record indication that the State requested or demonstrated these costs as required under the statute”). On remand, the state may not seek to reimpose these costs because the record does not demonstrate that the state requested these costs. Fisher v. State, 697 So.2d 1291, 1292 (Fla. 1st DCA 1997).

Finally, the state properly concedes that that the Public Defender fee should be stricken because the trial court did not advise Vaughn of his right to contest the amount. See § 938.29(5), Fla. Stat.; Fla. R.Crim. P. Rule 3.720(d)(1). For this reason, the Public Defender fee must be stricken. On remand, the trial court is directed to advise Vaughn of his right to a hearing to contest the Public Defender fee. Fla. R.Crim. P. 3.720(d); Bryant v. State, 661 So.2d 1315, 1316-17 (Fla. 1st DCA 1995).

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Bernard J. BRADLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1886.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Bernard J. Bradley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 24, 2009, in Union County Circuit Court case number 63-2004-CF-0139-A is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him in the belated appeal authorized by this opinion.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Jermaine Marlon DOBIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1280.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Jermaine Marlon Dobie, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one, and three through nine of Appellant’s motion; however, we reverse and remand for the trial court to conduct an evidentiary hearing or to attach records conclusively refuting Appellant’s claim that trial counsel was ineffective for allegedly giving incorrect legal advice regarding the elements of sexual battery. On appeal from a summary denial of a facially sufficient motion, this court must reverse unless the postconviction record conclusively shows that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2).

Appellant argued that prior to rejecting a plea offer, his attorney advised that the State had to establish actual penetration in order to prove sexual battery. See § 794.011(l)(h), Fla. Stat. (defining sexual battery as “oral anal, or vaginal .penetration, or union with, the sexual organ of another ... ”). Appellant alleged he would have accepted the offer had he known that proving penetration was not required for a conviction. The State responded that Appellant could not reasonably rely upon his counsel’s alleged misadviee because he was made aware of the charges both during jury selection and during the charging conference after the evidence was presented, yet Appellant failed to raise an objection. The postconviction court adopted the State’s response to Appellant’s motion and incorporated it by reference. Appellant’s argument, however, is not that he was unaware of the charges, but that his attorney made an incorrect statement regarding the proof required to sustain the charges. Although a transcript of the plea hearing is included in the record, it does not conclusively refute Appellant’s claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Lashai COOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6534.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Lashai Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 30, 2010, in Okaloosa County Circuit Court case numbers 2009-CF-1358, 2009-CF-2033, and 2010-CF-796, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent her in the belated appeal authorized by this opinion.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Frederick WILLIAMS, Appellant, v. ONYX WASTE SERVICES OF FLORIDA and Sedgwick CMS, Appellees.
    No. 1D10-5938.
    District Court of Appeal of Florida, First District.
    July 7, 2011.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Carlos D. Cabrera of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant challenges an order of the Judge of Compensation Claims (JCC) that denies permanent total disability (PTD) benefits, transportation to medical appointments, and a motion to disqualify filed against the JCC. We affirm the JCC’s denial of PTD benefits and the motion to disqualify without comment. We reverse the denial of transportation to medical appointments because the JCC improperly required Claimant to prove that transportation itself was medically necessary, a conclusion contrary to the settled law on the issue.

Here, Claimant, who concedes that he is physically capable of driving, filed a claim for transportation to authorized medical appointments because his car was broken down and he lacked reliable transportation. The JCC concluded that the Employer/Carrier (E/C) is not responsible for Claimant’s transportation to medical ap-pointraents or the cost thereof and denied same, because no doctor wrote a prescription for transportation to medical appointments, and Claimant was not medically restricted from driving.

It is well-settled law that a workers’ compensation carrier must either furnish transportation to authorized medical appointments or pay the reasonable cost thereof — because travel is incidental to medical care, not because the transportation itself is medical care or attendance. See Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla.1964); see also Remington v. City of Ocala, 940 So.2d 1207 (Fla. 1st DCA 2006); Sam’s Club v. Bair, 678 So.2d 902 (Fla. 1st DCA 1996). Accordingly, transportation to medical appointments does not, itself, have to be independently medically necessary. See Bair, 678 So.2d at 904. Because the JCC improperly denied transportation to medical appointments or the cost thereof, we reverse and remand. On remand, the JCC shall enter an order providing that the E/C is responsible for transportation to medical appointments or the reasonable cost thereof, with the E/C having the first opportunity to determine the means of transportation. See generally, Polk County v. Vanado, 576 So.2d 833, 841 (Fla. 1st DCA 1991) (explaining policy of allowing E/C first opportunity to determine means and methods of providing medical benefits).

AFFIRMED in part, REVERSED, in part, and REMANDED for additional proceedings.

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.