text:
    Andrew WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6042.
    District Court of Appeal of Florida, First District.
    March 31, 2009.

      Andrew Williams, pro se, Appellant.
    Bill McCollum, Attorney General,'Tallahassee, for Appellee.
   PER CURIAM.

The order denying the appellant’s motion to file a belated motion for postconviction relief is reversed. The case is remanded for a hearing to determine the validity of the appellant’s claim that counsel failed to file a timely postconviction motion. See Steele v. Kehoe, 747 So.2d 931 (Fla.1999); Perez v. State, 864 So.2d 1245, 1246 (Fla. 5th DCA 2004).

REVERSED.

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harry S. GRIGGS, Husband, Appellant/Cross-Appellee, v. Sonnja S. GRIGGS, Wife, Appellee/Cross-Appellant, and HHG, Inc. and Westco Systems, LLC., Appellees.
    No. 1D08-2755.
    District Court of Appeal of Florida, First District.
    March 31, 2009.
    Stephen S. Poche’, Shalimar, for Appellant/Cross-Appellee.
    Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellee/Cross-Appel-lant Sonnja S. Griggs.
   PER CURIAM.

In this appeal from a final order of dissolution of marriage, we affirm as to all issues raised by both the appeal and the cross-appeal. We write only to note that (1) the amount of $51,351.05 in past due temporary spousal support and marital home expenses the former husband concedes he owes is to be paid to the former wife from the former husband’s equitable distribution proceeds, as directed by the trial court in paragraph 16H of its judgment; and (2) the trial court is to be commended for the admirable way in which it handled this particularly contentious case.

AFFIRMED.

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


text:
    James SIGMON, II, Appellant, v. Walter A. McNEIL, Secretary, Department of Corrections, Appellee.
    No. 1D09-0501.
    District Court of Appeal of Florida, First District.
    March 31, 2009.

      James Sigmon, II, pro se, Appellant.
    Bill McCollum, Attorney General, and Ladawna Murphy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having determined that the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby DISMISSED. The appellee’s Motion to Strike Appellant’s Initial Brief, filed on February 18, 2009, is denied as moot.

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


author: CASANUEVA, Judge.

text:
    James Vincent HORNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5811.
    District Court of Appeal of Florida, Second District.
    April 1, 2009.
    James Vincent Horne, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

James Horne appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the denial of claims one and two, in part. We affirm the postconviction court’s order in all other respects without further comment.

Facts

Mr. Horne entered an open plea of guilty to all counts in six different circuit court cases:

03-04387 1. Possession of a controlled substance, § 893.13(6)(a), Fla. Stat. (2002)
04-12645 1. Delivery of a controlled substance, § 893.13(l)(a), Fia. Stat. (2003)
2. Possession of a controlled sub-sLance, § 893.13(6)(a), Fla. Stat. (2003)
05-13573 1. Driving with license suspended or revoked, § 322.34(5), Fla. Stat. (2004)
05-18021 1. Grand theft, third degree
03-18904 1. Uttering a forged instrument
2. Grand theft, third degree
3. Forgery
03-03751 1. Grand theft, third degree
2. Acting in capacity of a contractor without a license

The scoresheet set Mr. Horne’s minimum permissible sentence at 87.525 months’ incarceration. At sentencing, the trial court made the following oral pronouncement:

THE COURT: All right.... I’ll adjudge you to be guilty in Cases 03-4387, Possession of Controlled Substance; and 04-12645, Delivery and Possession of Controlled Substance. I’ll depart slightly. I’ll adjudge you to be guilty, sentence you to 77 months Florida State Prison on each of those counts, each to be served concurrently with the other. Each to be followed by 12 months community control. I’m sorry, strike that. Count 1 to be followed by 12 months of community control, followed by four years of probation. Everything is concurrently.
In Cases 13573, I’ll adjudge you to be guilty and sentence you to 77 months Florida State Prison to be served concurrently with those sentences.
In the remaining cases where restitution is due, I’ll adjudge you to be guilty in each of those counts — first of all, the misdemeanors, time served. On each of the felony counts, I’ll place you on 60 months probation. Each probationary sentence to be served concurrently with the others and to be served concurrently with the community control and probation, which is imposed consecutively to Count 1 of 12645.
THE COURT: Okay. Supervisions are all to be intended to be drug-offender supervision.
THE COURT: The conditions of the supervision, as I said, it will be drug-offender supervision.

(Emphasis added.)

Claim I

Mr. Horne claimed that his sentence on count one of case number 03-04387 for possession of a controlled substance is illegal because it exceeds the maximum allowed by law. The trial court imposed seventy-seven months’ incarceration to be followed by twelve months’ community control to be followed by four years’ drug offender probation on this count, a third-degree felony. In denying the claim, the postconviction court made the following findings:

Pursuant to § 921.0024(2) [Florida Statutes (2005) ], where the lowest permissible sentence under the code exceeds the statutory maximum as defined in § 775.082, [Florida Statutes (2005),] the sentence required by the code must be imposed. Thus, because the lowest permissible prison sentence in Defendant’s case (87.525 months) exceeds the statutory maximum, the Court must impose the sentence as required by the code, not by the statute. Ground one is denied.

The postconviction court accurately stated the requirements of section 921.0024(2), Florida Statutes (2005), but misapplied them in this case. When the minimum permissible sentence under the Code exceeds the statutory maximum, the trial court must impose the sentence required by the Code. Id. The sentence required by the Code is the minimum permissible sentence and no more. Id. On this count, the trial court imposed 137 months’ total incarceration and supervision, when the statutory maximum is sixty months’ incarceration and the Code provides for a term of 87.525 months. Because the sentence imposed exceeds the 87.525-month permissible sentence under the Code by more than forty-nine months, the postconviction court erred in denying this claim.

Claim, II

Mr. Horne claimed the imposition of drug offender probation on his convictions for delivery of a controlled substance in case number 04-12645, grand theft in case number 05-18021, uttering a forged instrument in case number 03-18904, and acting in the capacity of a contractor without a license in case number 03-03751, created illegal sentences because these offenses are not enumerated in the drug offender probation statute. See § 948.20, Fla. Stat. (2005).

In denying the claim, the postconviction court relied upon section 948.034, finding that this section allows imposition of “drug offender probation” for violations of section 893.13(l)(a)(l), Florida Statutes (2005). The postconviction court further addressed the sentencing court’s oral pronouncement:

The court notes the oral pronouncement of the court at sentencing was “[sjuper-visions are all intended to be drug offender probation.” However, the court did not intend for drug offender proba-' tion to be imposed where it was illegal to do so; i.e.: in the cases where the offenses are not drug related. It was not illegal to impose drug offender probation in case number 03-4387 count 1 (possession of a controlled substance), and in case number 04-12645 as to count 1 (delivery of a controlled substance).

(Footnote, citations, and emphasis omitted.) In a footnote, the postconviction court noted that the order of community supervision should be amended to reflect non-drug offender probation in case numbers 03-03751, 03-18904, and 05-18021, to match the written sentences.

Section 948.034 does contain some discretionary terms of probation for offenders convicted of certain drug offenses. However, the section is titled “Terms and conditions of probation; community residential drug punishment centers,” and the term “drug offender” does not appear anywhere within its text. On the other hand, section 948.20 is plainly titled “Drug offender probation.” Consequently, we hold that the legal consequence of the trial judge’s pronouncement of “drug offender supervision” was imposition of those terms of probation as set forth in section 948.20, not section 948.034.

Of all of Mr. Horne’s convictions, only his two convictions for possession of a controlled substance are eligible for drug offender probation under section 948.20. See id. (stating that drug offender probation applies only to violations of section 893.13(2)(a) or (6)(a)). Consequently, the trial court erred in imposing drug offender probation on the convictions for delivery of a controlled substance, grand theft, uttering a forged instrument, and acting in the capacity of a contractor without a license. Further, we note that the sentence imposed for delivery of a controlled substance in case number 04-12645 — seventy-seven months’ incarceration followed by twelve months’ community control followed by four years’ drug offender probation — is also illegal for the same reasons addressed in claim one. It exceeds both the statutory maximum and the minimum permissible sentence set forth by the Code. Thus, the postconviction court erred in denying this claim as well.

Accordingly, we reverse the denial of claims one and two, in part. Because of the numerous intertwined sentencing errors, at least two of which require a hearing to correct, we vacate all sentences in case numbers 03-04387, 04-12645, 05-13573, 05-18021, 03-18904, and 03-03751. On remand, the trial court shall conduct a full hearing with Mr. Horne present and re-sentence him on all counts in all six cases. The new sentences shall comply with the dictates of this opinion.

WALLACE and KHOUZAM, JJ., Concur.

      . The State did not challenge the trial court's imposition of what it thought to be a downward departure sentence, despite the absence of a factual basis or written findings. As discussed later in this opinion, the sentences were not downward departures; in fact, they were illegal sentences because they exceeded the maximum allowable by law.

      . Mr. Home referred to this count as "forgery” in his motion.


author: WARNER, J.

text:
    M.S., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D08-3512.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.

      Phillip Massa, J. Patrick Reynolds, James Williams, and Debbie Maken, Legal Intern, West Palm Beach, for appellant.
    Patricia M. Propheter, West Palm Beach, for appellee Department of Children and Families.
    Jennifer S. Paullin, Orlando, for appellee Guardian Ad Litem Program.
   WARNER, J.

A father appeals a final judgment adjudicating his daughter a dependent. He claims that the court erred in admitting Maryland child welfare records involving his family as business records, as well as permitting the telephonic testimony of a Maryland social service witness without his consent. We agree that the records, which contained hearsay statements, were improperly admitted. Further, without the consent of both parties, the Maryland witness could not testify by telephone. Because so much of the trial court’s judgment relied on this evidence, we cannot find the errors to be harmless. We therefore reverse for a new hearing.

The Department of Children and Families (“DCF”) sheltered M.S., the child, in April of 2008. Subsequent to the entry of a shelter order, DCF filed a petition for adjudication of dependency. At the hearing on the dependency, a DCF investigator testified that he originally took the child into shelter because he believed that the father could not protect the child from the mother whose erratic behavior placed the child at risk. The investigator’s decision to take protective measures was based in significant part on the correspondence with child protective services in Montgomery County, Maryland, where the family had lived prior to Florida. All the history of the inadequate care of the child came from Maryland.

Over the objection of the father that the records should not be admitted as business records because they contained hearsay and were unreliable, the court admitted the records. Also over objection, a social worker with the Child Protective Services in Montgomery County, Maryland, testified by telephone regarding the Montgomery County contact with the family. She frequently referred to the reports in her testimony.

Although there were other witnesses, in its final judgment the trial court relied in significant part on the evidence from the Maryland social service worker and the Maryland records in making its findings of fact and conclusions of law. The final judgment declared M.S. a dependent child as to the father. The father appeals, claiming that the court erred in admitting the Maryland evidence and witness.

Rulings on the admissibility of evidence are reviewed for an abuse of discretion as limited by the rules of evidence. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

DCF sought to admit the Maryland social service records as a business record pursuant to section 90.803(6), Florida Statutes. Because the documents were records of a public agency, we think the appropriate ground to seek their admission was section 90.803(8), Florida Statutes, which is the hearsay exception for public records and reports. However, under either section the records were not admissible, because they contained inadmissible hearsay.

In Brooks v. State, 918 So.2d 181 (Fla.2005), the supreme court considered whether a Department of Revenue employee could testify to her note of a telephone call from a woman who was subsequently murdered. The state had sought to introduce the substance of the note as a business record through the witness’s testimony. The court held the testimony was inadmissible and explained the steps necessary to admit a business record:

To be admissible as a business record, it must be shown that the record was (1) made at or near the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record. See Quinn v. State, 662 So.2d 947, 953 (Fla. 5th DCA 1995); § 90.803(6)(a), Fla. Stat. (2002). To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity. See Quinn, 662 So.2d at 953; Van Zant v. State, 372 So.2d 502, 503 (Fla. 1st DCA 1979). If this predicate is not satisfied, then the information contained in the record is inadmissible hearsay, unless it falls within another exception to the hearsay rule. See Quinn, 662 So.2d at 953-54; see also Hill v. State, 549 So.2d 179, 181 (Fla.1989); Johnson v. Dep’t of Health & Rehab. Servs., 546 So.2d 741, 743 (Fla. 1st DCA 1989); Harris v. Game & Fresh Water Fish Comm’n, 495 So.2d 806, 809 (Fla. 1st DCA 1986) (“The general rule is that a hearsay statement which includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception.”); Van Zant, 372 So.2d at 503.

Id. at 193. The court concluded that the business record exception did not permit the introduction of the employee’s testimony regarding the content of the note of the phone call, because the information contained in the note came from the individual making the call and thus was not within the employee’s knowledge.

Similarly, in Reichenberg v. Davis, 846 So.2d 1233 (Fla. 5th DCA 2003), the court held that records of DCF could not be admitted into evidence as a business record because the records contained witness statements made to investigators, the substance of which was not within the personal knowledge of the agency employee. On the same rationale, the records could not be admitted as a public record under section 90.803(8). See Lee v. Dep’t of Health & Rehab. Servs., 698 So.2d 1194, 1200-01 (Fla.1997). See also Carter v. State, 951 So.2d 939, 943 (Fla. 4th DCA 2007).

The records in this case consisted mostly of inadmissible hearsay statements from unknown persons in Maryland. The court erred in admitting them as a business record.

The court also erred in permitting the Maryland social worker to testify by telephone. Pursuant to Florida Rule of Judicial Administration 2.530(d)(1), “[a] county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.” Although the trial court thought that it should have some discretion under this rale, there is no such discretion. See S.A. v. Dep’t of Children & Family Servs., 961 So.2d 1066, 1067 (Fla. 3d DCA 2007) (“Under the rule, trial testimony can be taken by telephone only if all parties consent. S.A. objected. The objection should have been sustained. The court erred by allowing the officer to appear by telephone.”). Because the father did not consent, the court erred in admitting the social worker’s testimony.

These two errors were not harmless. The trial court relied heavily on the Maryland social worker’s testimony and the Maryland records in making its determinations. We thus reverse and remand for a new hearing consistent with this opinion. We decline to address in further detail the father’s claim that the evidence was insufficient, because the sufficiency of the evidence depends in considerable part on the Maryland evidence, which was inadmissible in this proceeding.

Reversed and remanded for further proceedings.

STEVENSON and DAMOORGIAN, JJ., concur.

      . The substance of this rule has not been revisited recently. With the advent of video conference capabilities, in which the participants may both see and hear persons in faraway places, the general objection on confrontation grounds may be ameliorated. Certainly, it would save considerable cost to the state in proceedings such as these to allow testimony to be presented in this manner as opposed to flying a witness in from across the country. We suggest that the Rules of Judicial Administration Committee review and update this rule.


text:
    Orrett KERR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-229.
    District Court of Appeal of Florida, Third District.
    April 1, 2009.
    Orrett Kerr, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proeeed-ings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: POLEN, J.

text:
    Michael CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4496.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Michael Carter, appeals the trial court’s order adjudicating him guilty of fleeing and eluding (Count I), resisting an officer with violence (Count II), and battery on a law enforcement officer (Count IV). This court has jurisdiction. Fla. RApp. P. 9.140(b)(1)(A).

On the morning of November 5, 2006, Officers Herb and Warshaw were manning a traffic detail. Officer Herb’s radar indicated that a vehicle driven by Carter was speeding at which point the officers pulled out behind the car to follow it. The officers never activated the lights or the siren until they were pursuing Carter through an intersection. While the officers pursued the car, Carter sped up, ran a red light, and ultimately crashed into a metal railroad crossing. At that point, Carter exited the vehicle and ran and Officer Warshaw pursued him on foot.

The chase proceeded into a residential area, and Officer Warshaw finally caught up with Carter as Carter tried to climb over a chain link fence. Officer Warshaw grabbed Carter by his back, and Carter swung at Officer Warshaw with his elbows and hit him a couple of times. Officer Warshaw tried to get Carter to the ground, but Carter continued to resist. Officer Herb approached, told Carter to lie on the ground and show his hands, but Carter refused. Officer Herb administered his taser twice before Carter succumbed to the officers. As Officer War-shaw was helping Carter stand up, he felt Carter jerk him forward in an attempt to escape again. Officer Herb kicked Carter in the chest and arrested him.

At trial, when the judge reviewed the proposed jury instructions, defense counsel objected to an instruction for Count IV, resisting a law enforcement officer with violence. The instruction stated that “an arrest constitutes lawful execution of a legal duty” and defense counsel argued that this instruction relieved the state from having to prove one of the elements of the crime charged. The trial court overruled the objection. On appeal, Carter argues the jury instruction constitutes reversible error because the court relieved the state from proving an element of the crime charged, and the state argues the given jury instruction was correct.

“[A] trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.” Taylor v. State, 931 So.2d 1055, 1056 (Fla. 4th DCA 2006) (citing James v. State, 695 So.2d 1229, 1236 (Fla.1997)).

Defense counsel relied on Tillman v. State, 934 So.2d 1263 (Fla.2006) below to support his proposition that the state must prove that the officers were lawfully executing a legal duty and that the court cannot relieve the state of that burden by instructing the jury that an arrest is the lawful execution of a legal duty. The trial court disagreed with defense counsel’s interpretation of Tillman explaining that the case applies only to non-arrest situations, that the present case is an arrest case, and the state maintains that interpretation on appeal.

In Tillman, the Florida Supreme Court explained that section 776.051, which forecloses the defense of justifiable force by a defendant charged with resisting arrest, is limited in scope to arrest scenarios. 934 So.2d at 1269-71. In other words, in non-arrest scenarios, a defendant may still argue justifiable force to avoid a battery charge. See id. The Court discussed section 843.01, at issue in the present case, as well. Section 843.01, Florida Statutes (2005), defines the crime of resisting an officer with violence:

Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer ... is guilty of a felony of the third degree....

But the Tillman Court also reiterated that Florida courts consistently hold that in arrest scenarios, section 776.051 applies to relieve the state of the burden of proving that the arrest was lawful. 934 So.2d at 1270, n. 4.

Carter was charged with resisting an officer with violence for elbowing the officer while he was pulling Carter off of the fence from behind. Under Tillman, the officers in the present case were effecting an actual arrest. Accordingly, the state was not required to prove the lawful execution of a legal duty by the officer, and the trial court did not err in instructing the jury otherwise.

Affirmed.

GROSS, C.J., and HAZOURI, J, concur.


text:
    Derrick REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4832.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Derrick Reed, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion for post-conviction relief, which appears to be at least his third. As to the first three grounds, we disagree with the trial court’s determination that the motion was untimely; these three grounds are identical to the grounds raised in appellant’s rule 3.850 motion, timely filed on December 27, 2007, the dismissal of which was affirmed without prejudice to refile it within thirty days after the issuance of our mandate in his appeal from the denial of his previous rule 3.850 motion in Case No. 4D07-3652. See Reed v. State, 978 So.2d 230 (Fla. 4th DCA 2008). The instant motion was filed within that time period.

However, we agree with the trial court that appellant failed to show why the three grounds asserted in this motion could not have been raised in his first rule 3.850 motion and, therefore, failed to overcome the successiveness bar. See Fla. R.Crim. P. 3.850(f); Foster v. State, 614 So.2d 455, 458 (Fla.1992) (noting that defendant is required to “allege that the grounds asserted were not known and could not have been known to him at the time of the earlier motion”).

Affirmed.

POLEN, TAYLOR and HAZOURI, JJ, concur.


text:
    Wilbert Posey THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4696.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Wilbert Posey Thompson, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s rule 3.850 motion, untimely filed in a criminal ease in which the conviction and sentence became final in 2000.

We note that one of appellant’s issues concerned whether his conviction in this case and in a 1999 case qualified him for habitual felony offender sentencing in his subsequent 2005 case. This affirmance is without prejudice to his filing a rule 3.800(a) motion in his 2005 case, alleging, if he can, that the record in the 2005 case will demonstrate that the requisite convictions necessary to sentence him as a habitual felony offender do not exist. Bover v. State, 797 So.2d 1246, 1247 (Fla.2001).

FARMER, TAYLOR and MAY, JJ., concur.


text:
    Warren Lavell JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5190.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Warren Lavell Jackson, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant has filed several postconviction motions and appeals, raising untimely challenges to his convictions and sentences and raising claims that are without merit. He is cautioned that the continued filing of frivolous pleadings will result in the sanction of non-acceptance of his pro se filings and may result in referral to the Department of Corrections for disciplinary procedures. See § 944.279, Fla. Stat.; State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.


text:
    Angel M. VEGA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-203.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.

      Angel M. Vega, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Angel Vega appeals the trial court’s denial of his Rule 3.800(a) motion to correct illegal sentence. In April 2000, Vega was sentenced to consecutive terms on three counts: (1) possession of cocaine — 15 years in prison; (2) possession of cannabis — one year jail; and (3) possession of drug paraphernalia — one year jail. In his motion, Vega alleged that a sentence of two one-year jail terms consecutive to a prison sentence is illegal. See § 922.051, Fla. Stat. (1999) (providing: “When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of the prisoner’s cumulative sentences is not more than 1 year”).

Appellant’s claim is without merit. As the trial court explained in its order, section 922.051 prohibits consecutive county jail sentences on felony offenses if the cumulative total exceeds one year. Consecutive misdemeanor county jail sentences are permissible; section 922.051 does not apply to misdemeanors. Armstrong v. State, 656 So.2d 455, 456 (Fla.1995).

[W]hen a defendant is convicted of both a felony and a misdemeanor, the trial court may properly sentence a defendant to county jail time on the misdemeanor to be followed by a prison sentence on the felony count even if the total of the defendant’s cumulative sentences exceeds one year.

Flores v. State, 974 So.2d 556, 559 (Fla. 5th DCA 2008).

Vega’s jail sentences are for misdemeanors, not for a felony. Section 922.051 does not apply because he was not sentenced to jail time for his felony offense. Flores, 974 So.2d at 559 (explaining that section 922.051 “is inapplicable where county jail time is imposed solely for misdemeanors because misdemeanors are not punishable by ‘imprisonment in a state prison’ ”).

Affirmed.

WARNER, TAYLOR and HAZOURI, JJ., concur.


text:
    J.C. J. PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-499.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.

      J.C. J. Pierre, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant seeking any appropriate relief pursuant to Florida Rule of Criminal Procedure 3.850.

FARMER, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    William TYNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1240.
    District Court of Appeal of Florida, First District.
    April 2, 2009.
    William Tynes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Alfred D. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1185.
    District Court of Appeal of Florida, First District.
    April 2, 2009.
    Alfred D. Jones, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Norman C. HOLMES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1000.
    District Court of Appeal of Florida, First District.
    April 2, 2009.

      Norman C. Holmes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Roderick DeVAUGHN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0932.
    District Court of Appeal of Florida, First District.
    April 2, 2009.
    Roderick DeVaughn, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Adams v. State, 734 So.2d 1086 (Fla. 1st DCA 1999).

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Andre C. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0785.
    District Court of Appeal of Florida, First District.
    April 2, 2009.
    Andre C. Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    AMERUS LIFE INSURANCE CO., Appellant, v. Michael H. LAIT and Michael H. Lait, P.A., Appellee.
    No. 5D06-3875.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.

      Robin Sobo Moselle of Jacobson, Sobo & Moselle, Plantation, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

ON REMAND FROM SUPREME COURT

We reconsider this case in accordance with the opinion of the supreme court quashing this court’s decision in AmerUs Life Ins. Co. v. Lait, 967 So.2d 340 (Fla. 5th DCA 2007). Upon reconsideration, we reverse the order of the trial court vacating the amended and second amended final judgments and remand to the trial court for further proceedings consistent with the opinion of the supreme court in this case. See AmerUs Life Ins. Co. v. Lait, 2 So.3d 203 (Fla.2009).

REVERSED and REMANDED.

SAWAYA, MONACO and LAWSON, JJ., concur.


text:
    Marli Nunes SUMMERS, Appellant, v. Donald R. SUMMERS, Appellee.
    No. 5D08-3536.
    District Court of Appeal of Florida, Fifth District.
    April 3, 2009.
    Stacy L. Sherman of Law Offices of Sherman & Donald, Ft. Myers, and Stephanie A. Brunner of Law Offices of Brun-ner & Renejuste, N. Fort Myers, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Marli Nunes Summers appeals an ex parte order granting Donald R. Summer’s motion for injunctive relief, prohibiting her from having any and all contact with the parties’ minor child. Because both the motion and the court’s order are legally deficient and fail to comply with Florida Rule of Civil Procedure 1.610, we reverse.

We remand to the trial court for an evidentiary hearing at which both parties are permitted to present evidence. The trial court shall consider the child’s best interests, including whether supervised visitation would be appropriate, prior to limiting the mother’s right to visitation.

The hearing shall take place within twenty days of the issuance of our mandate unless both parties agree to hold the hearing at a later date. The ex parte order enjoining the mother from having any and all contact with the parties’ minor child is reversed to the extent that the mother is to be allowed supervised visitation with the child pending an evidentiary hearing on the matter.

REVERSED; REMANDED WITH DIRECTIONS.

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    Frank HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3053.
    District Court of Appeal of Florida, Third District.
    April 8, 2009.
    Alexander Kapetanakis, for appellant.
    Bill McCollum, Attorney General, and Lunar Clame Alvey, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Jardines, 9 So.3d 1, 2008 WL 4643082 (Fla. 3d DCA 2008), petition for cert. filed, No. SC08-2101 (Fla. Feb. 4, 2009).


text:
    Raul LIRANZO-CRUZATA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1026.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    James Marion Moorman, Public Defender, and Sharon Morgan Vollrath, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Reversed and remanded with directions to reinstate the initial sentence of eight years in prison. See State v. Williams, 780 So.2d 1031 (Fla. 1st DCA 2001) (holding that trial court loses jurisdiction to rule on a Florida Rule of Criminal Procedure 3.800(c) motion to mitigate or modify sentence while direct appeal is pending; remanding with directions to reinstate the initial sentence); Othouse v. State, 912 So.2d 682 (Fla. 2d DCA 2005) (holding that notice of appeal divested circuit court of jurisdiction to rule on the pending rule 3.800(c) motion).

ALTENBERND, WHATLEY, and LaROSE, JJ., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Jeffrey RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2970.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.

      Jeffrey Russell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Chief Judge.

We affirm without comment Jeffrey Russell’s convictions following his no contest plea to several sexual offenses involving minors. But as properly conceded by the State, the probation imposed for counts three and four was not orally pronounced by the court at sentencing. Accordingly, we reverse and remand solely for the purpose of striking the probation on those two counts. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003) (holding that court’s oral pronouncement of sentence controls over discrepancy in written sentence).

Affirmed in part, reversed in part, and remanded.

FULMER and KHOUZAM, JJ., Concur.


author: LaROSE, Judge.

text:
    In the Interest of C.S., a child. M.D., Appellant, v. Department of Children and Family Services, and Guardian Ad Litem Program, Appellees.
    No. 2D08-2661.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    Lorena L. Kiely, Plant City, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.
    Ama N. Appiah, Orlando, for Appellee Guardian ad Litem Program.
   LaROSE, Judge.

M.D., the mother, appeals an order terminating her parental rights. The Department of Children and Family Services and the Guardian Ad Litem Program concede error. We reverse because the trial court failed to (1) appoint counsel for an extended period of time when termination was at issue and (2) advise M.D. of her right to counsel or to obtain a record waiver of counsel. See, e.g., J.C.-J. v. Dep’t of Children & Family Servs., 987 So.2d 828, 829 (Fla. 2d DCA 2008) (discussing • due process right to counsel at all appropriate stages in termination of parental rights proceedings and citing sections 39.013(1), 39.402(5)(b)(2), and 39.807(l)(a), Florida Statutes (2005), requiring trial court to inform parents of their right to counsel and to appoint counsel for parents who are unable to afford counsel); T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1085 (Fla. 2d DCA 2008) (explaining that in proceedings involving the possibility of permanent termination of parental rights, the right to counsel is fundamental under our federal and state constitutions); A.C.N. v. Dep’t of Children & Family Servs., 814 So.2d 1142, 1143-44 (Fla. 2d DCA 2002) (same; explaining also that to fulfill the constitutional requirements, the trial court must inform the parent of the right to counsel and, if the parent wishes to waive the right, the trial court must establish that the waiver is knowingly and intelligently made); Beveridge v. Mardis, 682 So.2d 1142 (Fla. 2d DCA 1996) (reversing due to failure of trial court to obtain a waiver of counsel in parental rights termination case as required by Florida Rule of Juvenile Procedure 8.320(b)); S.H. v. Dep’t of Health & Rehabilitative Servs., 642 So.2d 809, 810 (Fla. 2d DCA 1994) (same).

Reversed and remanded.

ALTENBERND and WHATLEY, JJ., Concur.


author: FULMER, Judge.

text:
    Michael KARNES, a/k/a Michiel Karnes, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4393.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    Sharon Morgan Vollrath, Tampa, for Appellant.
   FULMER, Judge.

Michael Karnes challenges the order of the postconviction court dismissing as untimely his amended motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order and remand to the postconviction court to consider the motion. See Jumper v. State, 903 So.2d 264 (Fla. 2d DCA 2005).

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.


text:
    Alphonso SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2504.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, and Alphonso Smith, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

In this Anders appeal, we affirm the order revoking Alphonso Smith’s probation and imposing sentence. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In doing so, we have considered Smith’s argument, but find it lacks merit. Gonzales v. State, 780 So.2d 266 (Fla. 4th DCA 2001); Bones v. State, 764 So.2d 888 (Fla. 4th DCA 2000).

We remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007); see also Cook v. State, 993 So.2d 1186 (Fla. 4th DCA 2008); Rey v. State, 904 So.2d 566 (Fla. 4th DCA 2005); Riley v. State, 884 So.2d 1038 (Fla. 4th DCA 2004). We note that the judge specified the conditions on the record, but a written order is required to incorporate those findings.

Affirmed and Rem,and,ed.

STEVENSON, HAZOURI and CIKLlN, JJ., concur.


text:
    Ricky L. NEVELS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2997.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

We note that the record does not contain a formal judgment with appellant’s fingerprints affixed, as required by section 921.241(1), Florida Statutes (2007). See Fla. R.Crim. P. 3.986. Accordingly, we direct the trial court on remand to enter such a judgment. See Ramos v. State, 429 So.2d 318 (Fla. 2d DCA 1981) (affirming conviction and sentence, but vacating judgment and sentence order and remanding for entry of a proper judgment).

Affmned but remanded for entry of formal judgment.

GROSS, C.J., DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Martin Dale SMITLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3005.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this appeal, the public defender filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree that there are no meritorious issues concerning the judgment of conviction and sentence entered in connection with appellant’s open no contest plea and thus affirm the same. Robinson v. State, 373 So.2d 898 (Fla.1979).

However, the trial court imposed an order of probation which reads in a way that suggests appellant was to be placed on two years of probation for counts I — III, while the transcript makes it clear that the probation was ordered for only counts I and II, consecutive to a five-year sentence for count III, a third degree felony. Imposing two years of probation for count III after the five-year sentence would cause that sentence to exceed the statutory maximum. § 775.082(3)(d), Fla. Stat. Accordingly, we direct the trial court on remand to correct the order of probation to reflect, consistent with the oral pronouncement, that appellant is to be placed on probation with respect to only counts I and II, consecutive to his prison sentence for count III.

Affirmed, but remanded for clarification of order of probation.

WARNER, STEVENSON and HAZOURI, JJ., concur.


text:
    Dale FISHER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-3159, 4D09-243.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Dale Fisher, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We have consolidated Dale Fisher’s belated appeals of the orders that denied his motions for rule 3.800(a) and 3.850 relief. Both motions present the same claim that the trial court’s written sentence fails to comport with the oral pronouncement associated with other active sentences. Both motions were summarily denied without attachments, comment, or a request for the state to respond. See Fleming v. State, 980 So.2d 1110 (Fla. 4th DCA 2008); Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007). We reverse and remand for further review of the claim, noting that the relief offered under a rule 3.850 motion does not limit Fisher to the record as detailed in Williams v. State, 957 So.2d 600 (Fla.2007).

Reversed and remanded.

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


author: KELLY, Judge.

text:
    Paul FELL, Appellant, v. Nancy A. CARLIN and Kenneth Carlin, Appellees.
    No. 2D07-2921.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.
    Steven L. Brannock and Sarah C. Pel-lenbarg of Holland & Knight, LLP, Tampa, for Appellant.
    Anthony J. Parrino and Katherine Shad-wick of Reynolds Stowell Parrino, P.A., St. Petersburg, for Appellees.
   KELLY, Judge.

Paul Fell appeals the final judgment entered against him in a personal injury action. Fell was a back-seat passenger in a Chevrolet Blazer involved in a rear-end collision in which the defendants, Nancy and Kenneth Carlin, admitted fault. On appeal, Fell contends the trial court should have directed a verdict in his favor on the issue of whether he sustained an injury caused by the accident. After a thorough review of the record, we conclude the trial court properly denied Fell’s motion for a directed verdict. Accordingly, we affirm.

The standard of review on appeal of a trial court’s ruling on a motion for directed verdict is de novo in which we apply the same test used by the trial court in ruling on the motion. Sims v. Cristinzio, 898 So.2d 1004, 1006 (Fla. 2d DCA 2005).

A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmov-ing party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.

Id. at 1005 (citations omitted). Fell argues he was entitled to a directed verdict on the issue of whether he had sustained an injury as a result of the accident because every physician who testified at trial, including the physician who testified for the defense, opined that he had. While accurate, Fell’s argument overlooks the fact that a jury may reject even uncontroverted expert medical testimony provided it has a reasonable basis to do so, such as where there is conflicting lay testimony. See Weygant v. Ft. Myers Lincoln Mercury, Inc., 640 So.2d 1092, 1094 (Fla.1994); Easkold v. Rhodes, 614 So.2d 495, 498 (Fla.1993).

Here, the jury heard testimony that would have provided it with a reasonable basis to reject the medical experts’ opinions that Fell had an injury caused by the accident. The medical opinions regarding Fell’s injury were based on his subjective complaints of pain. Accordingly, the validity of those opinions depended on Fell’s candor in reporting his complaints. In particular, the Carlins’ medical expert testified that while he believed Fell had sustained a soft tissue injury that was not permanent, his opinion was a “benefit of the doubt” diagnosis. He explained that this meant he based his opinion on Fell’s subjective complaints of pain which he assumed were truthful; however, if they were not truthful, his opinion would not be valid. Thus, if the jury had a reasonable basis to conclude Fell was not candid with his doctors, it also had a basis to reject them opinions regarding whether he was injured as a result of the accident.

We conclude that the evidence, viewed in the light most favorable to the Carlins, provided the jury with a reasonable basis to conclude that Fell was not candid with his doctors. Among other things, the evidence showed the following: the impact was so minor neither vehicle sustained visible property damage; Fell did not seek emergency medical treatment although he later claimed to have experienced pain and stiffness immediately after the impact; two days after the accident Fell went to a previously scheduled doctor’s appointment and never mentioned the accident, did not note any back or neck pain on the patient history form, did not complain of pain or stiffness, and did not exhibit symptoms of pain or injury during his physical examination; Fell did not miss any work and did not complain of pain at work; and as time passed, Fell gave increasing estimates of the speed of the Carlins’ car while admitting at trial that he had not seen the car before impact. In light of this evidence, a jury could reasonably infer that Fell had not been injured in the accident and that he had not been candid with his physicians. Accordingly, the trial court correctly denied Fell’s motion for directed verdict and allowed this issue to go to the jury.

Affirmed.

FULMER and CASANUEVA, JJ., Concur.

      . Fell also contends that improper remarks by counsel during closing argument warrant a reversal and remand for a new trial. Based on our review of the record, we conclude that even if the remarks were improper, a matter we do not decide, trial counsel either did not preserve the arguments for appeal or Fell did not demonstrate that the remarks were harmful; thus the trial court did not abuse its discretion when it denied his motion for a new trial. We also note that Fell’s brief raises only two issues: the trial court's failure to direct a verdict on the issue of injury and whether counsel’s improper remarks warranted a new trial; however, in his argument regarding the directed verdict, Fell contends that he was at least entitled to recover medical expenses for diagnostic testing. "[I]n order to obtain appellate review, alleged errors relied upon for reversal must be raised clearly, concisely, and separately as points on appeal.” State Comprehensive Health Assoc. v. Carmichael, 706 So.2d 319, 321 (Fla. 4th DCA 1997) (quoting Singer v. Borbua, 497 So.2d 279, 281 (Fla. 3d DCA 1986)); see also Fla. R.App. P. 9.210(b) (2008). Therefore, we do not decide this issue. Were we to consider this issue, however, we would nevertheless affirm. See Dep’t of Transp. v. Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001); Beverly Health & Rehab. Servs., Inc. v. Freeman, 709 So.2d 549, 551 (Fla. 2d DCA 1998); Plana v. Sainz, 990 So.2d 554, 557 (Fla. 3d DCA 2008); Martin v. Chapman, 780 So.2d 929, 930 (Fla. 5th DCA 2001).


author: WHATLEY, Judge.

text:
    In the Interest of E.G., M.C., and J.C., minor children, S.R.L., v. Department of Children and Family Services, and Guardian Ad Litem Program.
    No. 2D08-2663.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.
    Jackson S. Flyte, Regional Counsel, Second District, and Christine A. Trakas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee, Department of Children and Family Services.
    Jennifer S. Paullin, Orlando, for Appel-lee, Guardian Ad Litem Program.
   WHATLEY, Judge.

In this appeal by the Mother of the order terminating her parental rights to her three children, the Department of Children and Families and the guardian ad litem both concede error in the failure of the trial court to provide counsel for the indigent Mother in proceedings that led to the termination of her parental rights. See In the Interest of D.B. and D.S., 385 So.2d 83, 87 (Fla.1980) (“We find that a constitutional right to counsel necessarily arises where the proceedings can result in permanent loss of parental custody.”); Wofford v. Eid, 671 So.2d 859, 863 (Fla. 4th DCA 1996) (“Where a threat of permanent termination of parental rights exists, a trial court must appoint counsel for an indigent natural mother.”).

Accordingly, we reverse the order terminating the Mother’s parental rights and remand for further proceedings. Custody of the children shall not by reason of this opinion be changed, but the dependency process leading to any termination of the Mother’s rights shall be conducted in accordance with required procedures. See Fla. R. Juv. P. 8.320(a)(2).

Reversed and remanded.

ALTENBERND and LaROSE, JJ., concur.


text:
    Tonee TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4302.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.
   PER CURIAM.

Tonee Taylor appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Taylor raises the same issue that he argued in a prior rule 3.800(a) motion that was denied on the merits. Taylor v. State, 967 So.2d 917 (Fla. 2d DCA 2007) (table). Collateral estoppel bars Mr. Taylor from arguing that issue again. See State v. McBride, 848 So.2d 287, 290 (Fla.2003).

Affirmed.

WHATLEY, SILBERMAN and LaROSE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Gene SZEREMI, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4332.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.
   KHOUZAM, Judge.

We affirm, without comment, that portion of the postconviction court’s order denying Gene Szeremi’s motion for postcon-viction relief filed under Florida Rule of Criminal Procedure 3.850 and alternative petition for writ of habeas corpus.

In the same order, the postconviction court also denied as untimely Mr. Szere-mi’s motion for postconviction DNA testing filed under Florida Rule of Criminal Procedure 3.853. However, as a result of amendments to rule 3.853 and statutes governing DNA testing, a motion for post-conviction DNA testing may be filed at any time following the date that the judgment and sentence in the case become final. See In re Amendments to Fla. R.Crim. P. 3.170 & 3.172, 953 So.2d 513, 518 (Fla.2007); In re Amendments to Fla. R.Crim. P. 3.853(d), 938 So.2d 977, 978 (Fla.2006); Bain v. State, 963 So.2d 913, 914 (Fla. 2d DCA 2007). Accordingly, we reverse the denial of Mr. Szeremi’s motion for postcon-viction DNA testing and remand for further proceedings under rule 3.853(c). We express no opinion regarding the allegations of Mr. Szeremi’s motion.

Affirmed in part; reversed in part; remanded.

DAVIS and KELLY, JJ., Concur.


text:
    H.L.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3585.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We grant rehearing, withdraw our June 11, 2008 opinion, and substitute the following decision.

The issue raised in this juvenile delinquency appeal is identical to the one raised in our recent decision in E.E. v. State, 7 So.3d 1140, 2009 WL 605399 (Fla. 4th DCA Mar. 11, 2009). As we did there, we reverse the disposition imposed in this case under the authority of E.A.R. v. State, 4 So.3d 614 (Fla.2009), and remand with instructions to hold a new disposition hearing complying with E.A.R. The court is free to require an updated PDR, and all parties should be allowed to present new evidence and argument for the ultimate disposition.

FARMER, HAZOURI and CIKLIN, JJ., concur.