text:
    David Eugene JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3335.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    David Eugene Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, David Johnson, challenges the trial court’s denial of his post-conviction motion filed pursuant to Florida Criminal Procedure rule 3.850. The appellant’s motion raised 21 grounds for relief. The trial court summarily denied grounds 1-4, 8-10, 13, 14, and 17-21. The remaining grounds were denied after an eviden-tiary hearing.

As to grounds 1-4, 9, 10, 13, and 17-21, we reverse and remand to the trial court for attachment of portions of the record showing that the appellant is not entitled to relief. Although the trial court’s order referred to portions of the record that supported denial, the record was not attached to the order as required by rule 3.850. See Isaac v. State, 45 So.3d 42 (Fla. 1st DCA 2010); Taylor v. State, 583 So.2d 823 (Fla. 4th DCA 1991). The trial court’s denial of the remaining grounds is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

LEWIS, ROBERTS, and RAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Betty Jayne HOBBS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2914.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    L. Lee Lockett, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General,- and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order denying her petition to seal her criminal record. The appellant contends, and the State concedes, that the trial court abused its discretion by failing to provide a sufficient reason for the denial based on the facts and circumstances of her individual case. We agree and reverse and remand for reconsideration of the petition. See Anderson v. State, 692 So.2d 250 (Fla. 3d DCA 1997).

REVERSED and REMANDED.

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Luis TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4346.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

Upon consideration of Appellant’s Motion for Rehearing/Clarification, we grant the requested clarification. Accordingly, the opinion issued on December 8, 2011, is withdrawn, and the following opinion is substituted in its place.

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

THOMAS, MARSTILLER and RAY, JJ., concur.


author: MAY, C.J.

text:
    Jose Aguiar HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4186.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Jorge Andres of Law Offices of Jorge Andres, Bradenton, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The inherent incredibility of this factual scenario causes us to write on this appeal from the defendant’s conviction and sentence for Trafficking in Cannabis — Over 25 Pounds, Cultivation of Cannabis, and Use or Possession of Drug Paraphernalia. The defendant argues the court erred in denying his motion to suppress, after which he pled to the charges. Bound by the trial court’s factual findings, we affirm.

The following facts were revealed during the hearing on the motion to suppress. A detective received information from a concerned citizen that marijuana was 'possibly being grown at a particular location. The detective undertook day and night surveillance of the home for several months, visiting three to five times per week. Despite nearly one hundred visits, the detective did not have sufficient evidence to establish probable cause for a search warrant.

The detective described the area as heavily wooded with little traffic. The property was approximately a half acre in size, surrounded by an outer fence with a metal gate at the entrance. An inner fence surrounded the immediate area of the residence.

Unable to obtain a search warrant, several law enforcement officers, including the narcotics and K-9 units, assembled and proceeded to the defendant’s home. Everyone stayed out of view while the detective and another deputy, who spoke Spanish, approached the gate to the home.

The entrance gate was locked. The detective honked the horn multiple times to get the defendant’s attention. When the defendant approached the gate, the detective advised they were conducting an investigation of indoor marijuana grows and asked for consent to search. The defendant refused and told them to obtain a search warrant.

The detective contacted her supervisor and advised she was unable to obtain the defendant’s consent to search. Her supervisor directed the detective to return to the property to obtain the defendant’s identity. The detective and the translating deputy returned to the home a few minutes later.

Once again, the detective honked the horn multiple times to get the defendant to respond. When he approached, the translating deputy asked the defendant to provide identification. The defendant returned to the home, retrieved his license, and gave it to the detective. The detective again asked to search the residence. The defendant again refused without a search warrant.

Having twice been denied consent to search, the detective did not leave the area, but stayed to contemplate the next move. The supervisor then approached the property and began to observe the residence with binoculars. At some point, the defendant jumped over the fence surrounding the property and made contact with the supervisor.

The detective returned to the house with the deputy. The defendant waved them in, motioning for them to jump the fence. The defendant told the deputy in Spanish, “come on in, you can look around.” The defendant then proceeded to the rear of the property to secure his dog. Once he returned, he entered the house followed by the detective and the deputy. The detective testified that she did not request consent to enter the home prior to entering and relied on the previous consent given outside of the defendant’s property.

The detective took the lead, proceeding directly to where she believed the marijuana operation was located. Once in the room, the detective discovered a locked door. She asked the defendant for the keys, at which time the defendant kicked in the door. The detective observed evidence of the marijuana grow operation.

The detective then called in additional law enforcement officers to secure the residence so that she could obtain a search warrant. As a result of executing the search warrant, law enforcement secured several marijuana plants and various items used in the cultivation of marijuana.

The State charged the defendant with Trafficking in Cannabis — Over 25 Pounds, Cultivation of Cannabis, and Use or Possession of Drug Paraphernalia. The defendant moved to suppress the evidence. Neither the defendant nor any witness testified for the defense at the hearing. The trial court did not enter a written order, but articulated specific findings of fact which tracked the testimony provided by law enforcement.

THE COURT: Okay. All right, I’m prepared to make my ruling. This is, uh, not even a close call. It’s pretty, pretty clear.
... Nothing that says you can’t do a knock and talk. It’s a time honored, valid investigative tool.
Now the defendant clearly and obviously understood he had the right to refuse the search because he said, “No, go get a search warrant.”
... There were no force, threats, coercion. Uh, no physical contact. Uh, no unlawful or threatening display of weapons or acquiescence to mere authority. Uh, uh, other officers were in the area, but not visible from the property.
This wasn’t a situation though where they said you might as well consent because we’re gonna get a search warrant and then consent was given without any break.

The court found no basis to suppress the evidence. Following the denial of the motion to suppress, the defendant entered a no contest plea as charged, reserving the right to appeal the order.

“The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003).

“A warrantless search is per se unreasonable under the Fourth Amendment. However, a search will be considered lawful if conducted pursuant to consent which was given freely and voluntarily.” Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998) (citations omitted). “‘Where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.’ ” Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Rather, the court must look at the totality of the circumstances. Luna-Martinez v. State, 984 So.2d 592, 597 (Fla. 2d DCA 2008).

This case involved a “knock and talk,” which “ ‘is a procedure ordinarily used by police officers to investigate a complaint where there is no probable cause for a search warrant.’ ” Id. at 598 (quoting Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005)). “The key to the legitimacy of the knock-and-talk technique ... is the absence of coercive police conduct, including any express or implied assertion of authority to enter or authority to search.” Id. at 598-99.

Here, the trial court found the warrant-less search was conducted pursuant to consent. We are bound by that finding. See Ruiz v. State, 50 So.3d 1229, 1233 (Fla. 4th DCA 2011). The trial court did not have the benefit of conflicting testimony that the consent was not freely and voluntarily given; instead, the court had only the testimony of law enforcement to consider. There was no evidence of coercive conduct or the use of overbearing tactics by law enforcement. Under these circumstances, it cannot be said that the trial court erred in denying the motion.

But one must wonder why, after twice telling the police to get a warrant, the defendant would invite law enforcement on his property, put the dog away, and kick down his own door to allow law enforcement to have a good look at his indoor marijuana grow room — providing sufficient probable cause for a search warrant. As Arsenio Hall used to say, “Things that make you go Hmmm!”

Affirmed.

STEVENSON and GROSS, JJ., concur.

      . The defendant relies on United States v. Maldonado Garcia, 655 F.Supp. 1363 (D.P.R.1987); Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004); and Kutzorik v. State, 891 So.2d 645 (Fla. 2d DCA 2005). We find those cases distinguishable on their facts.


author: DAMOORGIAN, J.

text:
    Leonte RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1760.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Leonte Ruiz appeals his conviction and sentence for attempted first degree murder with a weapon and burglary of a conveyance with an assault or battery while armed. We affirm.

The evidence presented at trial established that Ruiz and the victim were romantically involved. At some point, the relationship ended. On the day of the incident, Ruiz stopped by the victim’s residence to speak with her about rekindling the relationship. The victim refused, and Ruiz stabbed her numerous times while she was inside her car. Ruiz was tried before a jury and was found guilty as charged.

In this direct appeal, Ruiz raises claims of ineffective assistance of counsel, which he asserts are apparent from the record. See Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002) (“[ineffective assistance of counsel will only be addressed on direct appeal for the first time when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.”) (citing Fones v. State, 765 So.2d 849, 850 (Fla. 4th DCA 2000)). The Florida Supreme Court explained that in order to establish an ineffective assistance of counsel claim, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Kilgore v. State, 55 So.3d 487, 499 (Fla.2010) (citation omitted).

Ruiz first claims that his lawyer’s performance was deficient for failing to object to certain statements made by the prosecutor during opening. Ruiz claims that during opening, the prosecutor improperly bolstered the credibility of the witnesses, offered a personal opinion on Ruiz’s guilt, shifted the burden of proof to Ruiz, and offered the victim’s opinion that insanity played no part in the crime in order to rebut Ruiz’s anticipated insanity defense. The State counters that the prosecutor properly referred to evidence that would be adduced at trial and did not improperly bolster the victim’s testimony. We have reviewed the record and conclude that the prosecutor’s opening statement was not improper because it provided a synopsis of what the witnesses would say. See Conahan v. State, 844 So.2d 629, 643 (Fla.2003) (“[Rjeasonable latitude per-mites] counsel during opening statements to discuss what evidence counsel intends to present during trial and the reasonable inferences that can be drawn therefrom.”) (Harding, J., concurring in part, dissenting in part).

Ruiz next argues that the State “improperly appealed to jury sympathy, passion and prejudice, and generated hatred and ill will towards Ruiz.” Ruiz provides no record evidence to support his protestations. Accordingly, we reject this argument. See Johnston v. State, 70 So.3d 472, 477-78 (Fla.2011) (“Mere speculation that counsel’s error affected the outcome of the proceeding is insufficient” to establish ineffective assistance of counsel).

Ruiz also asserts that his attorney was ineffective because of an offhanded comment that was made outside the hearing of the jury, where Ruiz’s attorney stated that “he [the attorney] was senile, had not done a jury trial in two and one-half years, and may be rusty on new law.” Our reading of the record reflects that the comment was made in jest. And, while we are mindful of the serious nature of any judicial proceeding, it is apparent that there was a good working relationship between the court, counsel for the parties, and witnesses. More importantly, these comments, standing alone do not satisfy the Strickland, test. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

Ruiz is also critical of his lawyer for failing to bring out the distinction between a psychiatrist and a psychologist. Ruiz asserts that only his psychiatrist expert witness was qualified to give insanity testimony “because he was the only witness who specialized in treating a mental infirmity, disease or defect.” We conclude that this claim is without merit. As the Florida Supreme Court stated in Hall v. State, 568 So.2d 882 (Fla.1990), “a clinical psychologist experienced in evaluating an individual’s mental state, and who had personally examined [the defendant], clearly was qualified to testify as an expert on [the defendant’s] sanity.” Id. at 884-85.

Moreover, Ruiz argues that his attorney was ineffective for failing to object to a number of the prosecutor’s statements during closing. The first of these alleged transgressions was the prosecutor’s argument in connection with Ruiz’s insanity defense. Contrary to Ruiz’s assertion, the prosecutor did not belittle Ruiz’s insanity defense, but rather noted the substantial evidence that contradicted his defense. See Ford v. State, 802 So.2d 1121, 1129 (Fla.2001) (“Both the prosecutor and defense counsel are granted wide latitude in closing argument. A mistrial is appropriate only where a statement is so prejudicial that it vitiates the entire trial.”).

Finally, according to Ruiz, it was improper for the State to thank the jury on behalf of the state attorney, the victim’s behalf, and on the people of the State of Florida. The prosecutor’s comments did not warrant a new trial. See Smith v. State, 818 So.2d 707, 711 (Fla. 5th DCA 2002) (“The reference to the jury speaking for the community did not permeate the closing argument. Rather, it was near the end of the argument and ... would not appear to be so prejudicial as to vitiate the entire trial and thus a mistrial was not warranted.”). In sum, we conclude that the balance of the prosecutor’s comments were appropriate remarks on the evidence adduced at trial.

Affirmed.

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


text:
    Steven HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3640.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 57 So.3d 961, 962-63 (Fla. 4th DCA 2011).

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


author: MORRIS, Judge.

text:
    Bernard DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2179.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.
    Arturo R. Rios of Law Office of Arturo R. Rios, P.A., St. Petersburg, for Appellant.
   MORRIS, Judge.

Bernard Dixon appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

CASANUEVA and LaROSE, JJ., Concur.


text:
    Jorge Armando DAVILA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2021.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.
    Grisel Ybarra, Miami, for Appellant.
   PER CURIAM.

Jorge Armando Davila appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed; question certified.

WALLACE, KHOUZAM, and CRENSHAW, JJ., Concur.


text:
    Kevin HOLLINGSHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4573.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Kevin Hollingshead, Crestview, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the denial of appellant’s untimely motion for postconviction relief in which he claims that his 1999 conviction for trafficking in hydrocodone is invalid pursuant to Hayes v. State, 750 So.2d 1 (Fla.1999). The court in Hayes held that pills with less than 15 milligrams of hydro-codone per dosage unit were a Schedule III substance that was not subject to a trafficking charge and that the amount of hydrocodone in all the pills could not. be aggregated to meet the Schedule II amount for a trafficking charge. 750 So.2d at 4-5.

In State v. Klayman, 835 So.2d 248 (Fla.2002), our supreme court determined that Hayes should be applied retroactively but set a time limit for such motions of two years from the date of the mandate in Klayman. Id. at 254 n. 13 (“Postconviction claims for relief under Hayes must be filed within two years of the date mandate issues in the present case.”). Appellant failed to file his motion within that two-year period, which closed on January 10, 2005. Even though the retroactivity analysis of Klayman was later overruled in State v. Barnum, 921 So.2d 513 (Fla.2005), the two-year period for bringing the claims permitted by Klayman had already expired. Bamum did not affect the Klay-man window. Appellant has not alleged any exception to the time bar, and we are bound by the supreme court decision.

Moreover, we conclude that there is no manifest injustice in denying Hayes relief in this case or in denying appellant’s very untimely claims that counsel was ineffective in failing to advise him about this issue during his original plea proceedings or at the violation of probation proceedings. The claim that the 1999 plea was to a “non-existent offense” is without merit. Trafficking in hydrocodone has remained an offense throughout the relevant period. § 893.135(l)(c)l.c., Fla. Stat. (1999). Appellant’s claim that the pills in his case did not qualify for a trafficking offense under Hayes is an untimely challenge to the factual basis for the plea.

In addition, appellant pleaded guilty to trafficking in hydrocodone as part of an agreement where the state dropped eight other charges of obtaining a controlled substance by fraud. He thus obtained a substantial benefit from his plea deal. He was placed on probation — which he repeatedly violated but which was twice reinstated — and ultimately absconded and was not arrested again until five years later. Assuming that the first-degree felony trafficking charge was improper, appellant still faced up to forty years in prison for his conduct. Appellant ultimately received a sentence of fifteen years in prison which was a departure from the twenty-five-year mandatory minimum and was well within the sentence he could have received had he pleaded to the eight counts of obtaining by fraud, which, according to the probable cause affidavit, he admitted. Even if he were entitled to withdraw his plea based upon Hayes, the state would be entitled to pursue the dropped charges, and he would still be subject to significant penalties. Upon this record, we do not conclude that a manifest injustice has occurred. See, e.g., State v. McBride, 848 So.2d 287, 292-93 (Fla.2003).

WARNER, DAMOORGIAN and LEVINE, JJ., concur.

      . In 2001, the Florida Legislature passed Chapter 2001-55, § 1, Laws of Florida (effective July 1, 2001), which added language to section 893.03(3) and created 893.135(6), Florida Statutes, clarifying that, for purposes of a trafficking charge, the weight of the controlled substance per dosage unit is irrelevant and that "the weight of the controlled substance is calculated by aggregating the total weight of each mixture.” See Nottebaum v. State, 898 So.2d 1073 (Fla. 5th DCA 2005).


text:
    James ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-432.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

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

James Adams was tried by jury and convicted of second degree murder, a lesser included offense of the charged premeditated murder. The evidence at trial established that, in the weeks prior to the victim’s death, the defendant and his girlfriend had been staying with the victim, Elijah Brown, in Brown’s hotel room and that all three were drug users. Brown was beaten to death with a four-by-four board and both the defendant’s girlfriend and stepmother testified at trial, implicating the defendant in the murder. In this appeal, Adams contends his conviction must be reversed on two grounds: (1) he was entitled to a mistrial after a juror briefly observed him in shackles, and (2) the trial court erred in permitting the State to play the girlfriend’s taped statement to police. We find neither argument has merit and affirm.

With regard to the jury issue, after individual inquiry, the judge determined one juror briefly observed the defendant in the hallway while the defendant was shackled. The juror indicated the brief sighting would not impact his ability to be fair. Under these circumstances, there was no abuse of discretion in the denial of the defendant’s motion for mistrial. See, e.g., Knight v. State, 76 So.3d 879 (Fla.2011) (“ ‘[W]e have long held that a juror’s or prospective juror’s brief, inadvertent view of a defendant in shackles is not so prejudicial as to warrant a mistrial.’”) (quoting Hernandez v. State, 4 So.3d 642, 658 (Fla.2009)).

As for the evidentiary issue, on appeal, the defendant argues the State should not have been permitted to play the girlfriend’s taped statement to police as it was hearsay and not admissible as a prior consistent statement. See § 90.801(2)(b), Fla. Stat. (2010) (“A statement is not hearsay if ... the statement is: ... [consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication.”). This was not the basis for the objection made below and, consequently, the issue has not been preserved for appeal. See, e.g., Reid v. State, 799 So.2d 394, 398 (Fla. 4th DCA 2001) (“ ‘In order to preserve an issue for appeal, counsel must preserve the issue by making a specific objection to the admission of evidence on the same grounds as raised on appeal.’ ”) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)). Moreover, even if the issue had been properly preserved, we conclude that any error in the playing of the taped statement was harmless, i.e., there is no reasonable possibility the error contributed to the verdict. See, e.g., Cooper v. State, 43 So.3d 42, 43 (Fla.2010) (setting forth the harmless error analysis).

Affirmed.

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


author: STEVENSON, J.

text:
    R.L.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4195.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, J.

R.L.L., a juvenile, appeals a disposition order finding him guilty of felony battery. The State concedes that the disposition order incorrectly states that the appellant was guilty of felony battery although the trial judge orally found him guilty of domestic battery, as charged in the juvenile petition. See, e.g., K.E.H. v. State, 717 So.2d 182, 183 (Fla. 1st DCA 1998) (remanding for correction of written order that failed to conform to trial court’s oral pronouncement). The State also concedes that the trial court erroneously assessed court costs as adjudication had been withheld. See § 775.083(2), Fla. Stat. (2010) (“[CJourt costs shall be assessed and collected in each instance a defendant ... [is] adjudicated delinquent for, a felony, a misdemeanor, or a criminal traffic offense under state law.”).

We have considered appellant’s remaining argument that the trial court erred in finding him guilty where the State’s evidence did not rebut the legal defense of self-defense, but we find no fundamental error in this unpreserved claim. Accordingly, we affirm in part, reverse in part and remand for entry of a corrected order consistent with this decision.

Affirmed in part, reversed in part and remanded.

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


text:
    Ronnie LORAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4993.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Ronnie Loray, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ronnie Loray appeals the trial court’s dismissal of his motion for post-conviction relief as untimely filed, and the order subsequently denying his motion for rehearing on the same issue. Loray’s conviction and sentence for second degree murder became final on October 8, 2007. His motion for post-conviction relief was time-stamped as filed on October 20, 2009, but it also contained a certificate of service stating that he had placed the document with the prison mail officials for mailing to the clerk’s office on October 6, 2009.

Under the mailbox rule, a pro se inmate’s motion is deemed filed when the inmate entrusts the motion to prison officials for delivery or processing. See Fla.R.App. P. 9.420(a)(2); Haag v. State, 591 So.2d 614, 617 (Fla.1992). Based on application of this authority, and the State’s response agreeing that the matter should be remanded to the trial court, we reverse and remand for further consideration of this motion for post-conviction relief.

Reversed and Remanded.

POLEN, DAMOORGIAN and LEVINE, JJ., concur.


text:
    KILN PLC and QBE International Insurance, Ltd., Appellants, v. ADVANTAGE GENERAL INSURANCE CO., LTD., Appellee.
    No. 4D10-2995.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      John M. Murray and Michael G. Shannon of Murray, Morin & Herman, P.A., Coral Gables, for appellants.
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellee.
   STEVENSON, J.

This appeal stems from the complaint of appellee, Advantage General Insurance Company, Ltd. (“Advantage”), against appellants, Kiln, PLC. (“Kiln”) and QBE International Insurance, Ltd. (“QBE”), collectively doing business as Lloyd’s of London (“Lloyd’s”), seeking declaratory relief regarding entitlement to insurance coverage and damages for breach of contract for failing to pay amounts owed under the insurance policy. The trial court granted summary judgment in favor of Advantage. Because the trial court should have considered extrinsic evidence in interpreting the policy, we reverse.

The complaint alleged that appellants sold and issued a personal accident reinsurance policy to Advantage. Advantage insured an aircraft owned and operated by Air Sunshine, Inc., and procured the policy to cover any loss it would suffer as a result of providing coverage for the airline. After an aircraft crashed, causing the death of two passengers, Advantage paid $600,000 to the families of the passengers, on behalf of the airline. Advantage then sought reimbursement from appellants, pursuant to the policy. The policy provided coverage for claims paid by Advantage for the death or injury of an airline “passenger” in the amount of “US$300,000 any one person as original not exceeding lOx annual salary” (the “disputed language”). However, appellants refused to reimburse Advantage the $600,000. Advantage sought: (1) declaratory relief that the policy provided coverage for the loss sustained by Advantage and (2) money damages for appellants’ breach of contract. Each party filed a motion for summary judgment.

At the hearing held on the motions, Advantage explained that it was originally formed as an insurance company in order to provide passenger liability insurance for the airline. When Advantage sought to obtain reinsurance, it assigned Frank Anton, its agent, to obtain the policy from the Lloyd’s of London marketplace. Anton travelled to London and contacted a broker, John McKeigue, who obtained the policy from appellants. When appellants refused to reimburse Advantage, they reasoned that the policy covered only employed passengers. Appellants believed that the disputed language excluded unemployed persons from coverage. Advantage argued, however, that this language was ambiguous.

While the parties essentially agreed on the above facts, they disagreed on how the policy was drafted. Advantage argued that McKeigue did not draft the policy, but simply took his direction from them in typing up the policy. Advantage believed that McKeigue was a Lloyd’s broker and was not directly representing it. In McKeigue’s deposition testimony, he stated that his office physically typed the policy, but the terms were those “mandated by Kiln.” McKeigue also testified that the disputed language was required by the underwriter at Kiln. McKeigue stated that he did not author or personally choose any of the coverage language in the policy. Advantage also offered the deposition testimony of Mark Andrews, head of technical claims at Kiln, who testified that the disputed language was added by a Kiln underwriter. Based on this testimony, Advantage believed that the ambiguous language had to be construed against appellants, as drafter of the policy.

Appellants explained that only certain brokers could enter Lloyd’s of London and procure a policy. The process involved negotiation between underwriters, such as appellants, and a broker, like McKeigue, who represents the insured. Appellants argued that McKeigue was representing Advantage and cited McKeigue’s deposition testimony where he stated his belief that Advantage was his client. McKeigue also explained that he used a “slip” to negotiate the policy for Advantage. McKeigue wrote the notation “NE10XAS” and the explanation “not exceeding lOx annual salary” on the slip so that his office would know to include the disputed language as a sub-limitation. Appellants concluded that, since McKeigue understood that coverage was dependent upon the passenger being employed, that knowledge had to be imputed to Advantage.

The trial court ultimately concluded that the disputed language was ambiguous and construed it against appellants and in favor of providing coverage. A trial court’s conclusion that a contract is ambiguous is reviewed de novo. See Emerald Pointe Prop. Owners’ Ass’n v. Commercial Constr. Indus., Inc., 978 So.2d 873, 877 (Fla. 4th DCA 2008). A policy is ambiguous when “ ‘the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage.’ ” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003) (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)).

The trial court correctly concluded that the contract is ambiguous. The policy offers no explanation for the meaning of the disputed language. See Auto-Owners Ins. Co., 756 So.2d at 34 (“[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.”). The disputed language, “US$300,000 any one person as original not exceeding lOx annual salary,” appears in a chart in the policy entitled “INSURED PERSONS AND BENEFITS COVERED.” According to the chart, “Passengers of aircraft as per attached schedule” are persons covered under the policy. Nowhere in the policy are unemployed passengers expressly excluded from coverage. In fact, the policy does not address how, or if, unemployed passengers are covered. Further, the insertion of the phrase “as original” is cryptic and adds to the confusion rather than shedding light on the overall meaning of the disputed language.

Appellants argue that the policy is not ambiguous and the only reasonable interpretation of the disputed language is that $300,000 is the maximum amount that can be paid out and the language “not exceeding lOx annual salary” is a sub-limitation. Thus, unemployed passengers are naturally excluded. Appellants insist that to interpret the policy language otherwise would lead to an absurd result since, for example, an employed person earning $5,000 per year would receive $50,000 under the policy and a homemaker might receive up to the policy limits of $300,000. While we recognize this anomaly, it appears equally unreasonable that unemployed persons would be excluded from coverage without the policy expressly saying so. Elsewhere in the policy, under “Exclusions,” the policy provides a list of particular exclusions, including injury from drug/alcohol abuse and injury incurred from the “commission of or the attempted commission of a criminal act,” among other situations and circumstances. In spite of such detailed language as to coverage exclusions, nowhere does the policy mention that unemployed passengers are excluded. The ambiguity here does not lie simply in the disputed language, but in the fact that the policy completely fails to address treatment of unemployed passengers, makes no explicit exclusion of them and, instead, states that “passengers of aircraft” are, in fact, “insured persons.” See Bell Care Nurses Registry, Inc. v. Cont’l Cas. Co., 25 So.3d 13, 17 (Fla. 3d DCA 2009) (“An insurer is required to make clear precisely what is excluded from coverage.”), review denied, 38 So.3d 133 (Fla.2010). We also note that the disputed language applies to the policy’s coverage of both “Death” and “Accidental Total Disability.” The limitation “not exceeding lOx annual salary” might be perfectly clear and reasonable when applicable to a claim for total disability, but it is not so clear and reasonable when considering a death claim.

Appellants also argue that, even if the disputed language is ambiguous, the trial court should have considered extrinsic evidence instead of construing the policy against them, as drafter of the policy. On this point, we agree with appellants. In the case of an ambiguous insurance policy, where extrinsic evidence is available, consideration of that evidence may be appropriate. See, e.g., Castillo v. State Farm Fla. Ins. Co., 971 So.2d 820, 823 (Fla. 3d DCA 2007) (permitting use of extrinsic evidence to interpret ambiguous provision in homeowners’ insurance policy); Williams v. Essex Ins. Co., 712 So.2d 1232, 1232 (Fla. 1st DCA 1998) (remanding for review of extrinsic evidence regarding whether parties’ intended policy to be “primary” or “excess” where policy was ambiguous on matter). Ambiguous policies are often simply construed against the insurer, as drafter of the insurance contract, see Nat’l Indem. Co. of S. v. Landscape Mgmt. Co., 963 So.2d 361, 364 (Fla. 4th DCA 2007), but, here, there is even a factual dispute as to which party chose the language of the policy. In the instant case, considering the unique and highly specialized nature of the insurance provided, we believe this is such a case where extrinsic evidence should be used to help resolve the ambiguity in the policy.

Accordingly, we reverse and remand to allow the parties to submit extrinsic evidence on what, if any, coverage is provided to unemployed passengers. We also note that a factual dispute exists regarding the role of McKeigue, and whether his knowledge and understanding of the policy can be imputed to Advantage as its agent. See, e.g., Almerico v. RLI Ins. Co., 716 So.2d 774, 776-77 (Fla.1998) (noting that, generally, an insurance broker is treated as agent of insured; however, a “broker may act in the dual capacity of broker for the insured and agent of the insurer”). On remand, the issue should also be addressed.

Reversed and remanded.

HAZOURI and DAMOORGIAN, JJ„ concur.


author: HAZOURI, J.

text:
    VILLAGE OF NORTH PALM BEACH, FLORIDA, Appellant, v. S & H FOSTER’S, INC., d/b/a Foster’s Pub, Appellee.
    No. 4D10-4721.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      Leonard G. Rubin of Leonard G. Rubin, P.A., West Palm Beach, for appellant.
    Tiffany L. Barry and David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellee.
    Trela J. White and Jennifer G. Ashton of Corbett and White, P.A., Lantana, for Amicus Curiae Palm Beach County League of Cities, Inc.
   HAZOURI, J.

This appeal arises out of a petition for voluntary annexation filed with the Village of North Palm Beach (“Village”) by Live Oak Plaza, LLC (“Live Oak”), the owner of a 2.62 acre parcel of property located on the west side of Alternate AIA (“Property”), contiguous with the then-existing corporate limits of the Village. Through the adoption of Ordinance No. 2008-10 on September 11, 2008, the Village Council granted the voluntary annexation petition pursuant to section 171.044, Florida Statutes, and annexed the property into the Village.

At the time of the annexation, S & H Foster’s, Inc. d/b/a Foster’s Pub (“Pub”) operated an establishment through a lease with Live Oak. For many years prior to the annexation, the Pub was considered an “after hours bar” serving alcoholic beverages until 5:00 a.m.

The Pub sought and obtained a declaratory judgment preventing the Village from enforcing Section 3-2 of the Village Code of Ordinances which prohibits the sale or on-premise consumption of alcoholic beverages between the hours of 2:00 a.m. and 7:00 a.m. The trial court ruled that the Pub had a leasehold agreement with Live Oak which permitted the Pub to sell alcoholic beverages between the hours of 2:00 a.m. and 5:00 a.m. and thereby created a vested right which could not be restricted by the voluntary annexation for the duration of the lease. We reverse.

The lease between the Pub and Live Oak specifically requires that the Pub “comply with all laws, ordinances, rules and regulations of governmental authority respecting [its] use, operation and activities” on the Property. The lease term in existence at the time of annexation expired on December 31, 2010.

As of 2008, the Pub had been operating on the Property for approximately sixteen years, selling alcohol for on-premises consumption for twenty-two hours per day, from 7:00 a.m. to 5:00 a.m. The regulations in effect for unincorporated Palm Beach County permitted such hours of operation.

For at least twelve years prior to the Village’s voluntary annexation of the Property, Section 3-2 of the Village Code of Ordinances prohibited the sale or on-premise consumption of alcoholic beverages between 2:00 a.m. and 7:00 a.m. every day of the year, including Sunday, with the exception of January 1.

Following the annexation the Pub requested the court to enter an order allowing it to continue operating “under its grandfather status” and sought a temporary injunction from enforcement of the Village Code. The Village filed a motion to dismiss the complaint, which stated that Section 8-2 prohibits the sale or service of intoxicating beverages on premises between 2:00 a.m. and 7:00 a.m. There was no dispute that once the property the Pub is on was annexed into the Village, the Village’s ordinances applied to the Pub. The Village also argued that the Pub did not establish the criteria necessary for a temporary injunction, including a clear legal right.

At a hearing on the request for a temporary injunction, the attorneys presented arguments regarding applicable statutes and whether the Pub had a property interest. Sherry Foster, the president of the Pub, testified regarding how long she had owned the Pub, the time left on her lease, and how she tracks profits. She stated that aside from profits lost between 2:00 a.m. and 5:00 a.m., she would lose business from customers in the hours leading up to 2:00 a.m., as those customers would choose to go to a bar with a later closing time. She further testified about the impact on her employees. The court entered a temporary injunction preventing the Village from enforcing Section 3-2 against the Pub. The Village appealed the non-final order, and this court affirmed per curiam. See Village of N. Palm Beach v. S & H Foster’s, Inc., 5 So.3d 686 (Fla. 4th DCA 2009).

Following the non-jury trial on the complaint for declaratory relief the court entered an order which found, inter alia, the following:

The premises of Plaintiff, S & H Fosters, Inc. (“Foster’s Pub”) has operated as a bar for more than 40 years, the last 17 of those years under the ownership of the Plaintiff under a lease which it signed with the prior owners of the real property. The current lease terminates in December 2015. Until the annexation, Foster’s Pub was located in an unincorporated area of Palm Beach County and was lawfully permitted to stay open between the hours of 2:00 a.m. and 5:00 a.m.
The Court finds that a reduction in the allowable hours of operation negatively affects Foster’s Pub’s use of the property. Foster’s Pub and its predecessors have been open until 5:00 a.m. for almost fifty years; it is an after hours club, and closing at 2:00 a.m. would destroy that distinction. Furthermore, enforcement of section 3-2 of the Town Code would cause serious financial harm because 32-35% of Foster’s Pub’s business occurs between the hours of 2:00 a.m. and 5:00 a.m.
[T]he annexation was requested by the landowner, not the leaseholder. Contra 171.044(2), Fla. Stat. (“Upon determination ... that the petition bears the signatures of all owners of property in the area proposed to be annexed, the governing body may ... adopt a nonemer-gency ordinance to annex said property.”) Although Foster’s Pub does not hold a fee simple absolute, they have the exclusive right to use and possess the subject property until December 2015 and therefore have a protected interest in the property.
The cases relied upon by the Village are distinguishable because they are cases in which a restrictive ordinance was passed and enforced against the then-existing residents within the existing boundaries of a municipality ... Such voluntary annexation caused the implementation of restrictive operating hours, destroying Foster’s Pub’s significant property rights to the existing leasehold. Furthermore, the evidence clearly showed that the Village was aware that the annexation would significantly impact Foster’s Pub’s leasehold operation in the annexed land ... it is abundantly inequitable for the Village to enforce its “time liquor sales ordinance” on the Plaintiff, who did not acquiesce to the annexation ... Foster’s Pub is entitled to continue operating between the hours of 2:00 and 7:00 a.m. pursuant to its grandfather status until its leasehold expires in December 2015.

On review of a declaratory judgment, we defer to the trial court’s factual findings if supported by competent, substantial evidence. Lawyers Title Ins. Co., Inc. v. Novastar Mortg., Inc., 862 So.2d 793, 797 (Fla. 4th DCA 2003). The court’s conclusions of law are reviewed de novo. Id.

The Village argues that the trial court erred for several reasons. First, it argues that under two Florida statutes and case law, the Pub had no entitlement to relief. Second, it contends that contrary to the trial court’s ruling, the Pub was merely a leaseholder whose consent to annexation was not required. Third, it argues that the equitable relief the court fashioned-granting of grandfather status-is limited to cases involving zoning ordinances, and that equitable relief was not proper in this case. The Pub responds that the court properly considered its leasehold interest as one factor among many in deciding to grant equitable relief, and that when this court per curiam affirmed the granting of the temporary injunction, it established the law of the case as to whether equitable relief was proper.

We turn first to the Pub’s argument that the law of the case doctrine applies. The Pub argues that in order to make a proper showing for a temporary injunction, a party must have stated a cause of action. Thus, the reasoning goes, by affirming the order granting a temporary injunction, this court must have found that the Pub was entitled to the declaratory relief which was granted.

“[Questions of law actually decided on appeal must govern the case in the appellate court and in the lower tribunal in all subsequent stages of the proceeding.” Parker Family Trust I v. City of Jacksonville, 804 So.2d 493, 497-98 (Fla. 1st DCA 2001) (quoting Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 102 (Fla.2001)). However, “[t]he affirmance of a temporary injunction on appeal determines only that a proper showing was made at the time the injunction was applied for.” See Whitby v. Infinity Radio, Inc., 951 So.2d 890, 896 (Fla. 4th DCA 2007) (quoting El Segundo Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 682 So.2d 697, 697 (Fla. 3d DCA 1996)). Factual findings and legal conclusions made by the court at a temporary injunction hearing are not binding on the trial court at final hearing where the parties present more evidence. See Kozich v. DeBrino, 837 So.2d 1041, 1043-44 (Fla. 4th DCA 2002).

In Kozich, a caulking company sued an employee for conversion of materials as well as other claims. The company secured a temporary injunction preventing the employee from filing notices of lien against the company’s customers. The court’s order found that the employee was not entitled to file liens against the company’s projects. This court affirmed the order. The employee then filed counterclaims against the company and its insurer, alleging various wrongs related to nonpayment. The company and insurer moved to dismiss, and argued that the temporary injunction was the law of the case finding that the employee was not a lienor under state law. The trial court agreed and dismissed the counterclaim that was based on liens. This court held that the factual findings and legal conclusions made by the trial court at the temporary injunction hearing “are not binding on the court on final hearing, where the parties present their full case to the court.” Kozich, 837 So.2d at 1043-44 (citing Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927, 929 (Fla. 3d DCA 1982)). We find that under Kozich, the law of the case doctrine does not bar review of the equitable relief granted on final hearing.

We now turn to whether it was proper for the court to grant the equitable relief of grandfather status to the Pub until its lease expires in 2015. The Village argues that two Florida statutes are on point and bar the type of relief granted to the Pub.

Section 171.062, Florida Statutes (2010), provides in relevant part:

(1) An area annexed to a municipality shall be subject to all laws, ordinances, and regulations in force in that municipality ... upon the effective date of the annexation.

§ 171.062(1), Fla. Stat. (2010).

Section 562.14, Florida Statutes (2010), provides in pertinent part:

(1) Except as otherwise provided by county or municipal ordinance, no alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in any place holding a license under the division between the hours of midnight and 7 a.m. of the following day....

§ 562.14(1), Fla. Stat. (2010).

Pursuant to section 562.14(1), the Village was permitted to enact Section 3-2, which regulates the sale of alcoholic beverages within its borders. Our courts have rejected challenges to such ordinances. See Playpen S., Inc. v. City of Oakland Park, 396 So.2d 830 (Fla. 4th DCA 1981) (affirming denial of temporary injunction and reasoning that bar did not have clear legal right to injunction, since city has statutory power to set times for sale of liquor, and the ordinance passed by referendum); Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So.2d 861 (Fla. 3d DCA 1977) (affirming dismissal for failure to state a cause of action, where bar essentially complained that city’s refusal to grant grandfather status was unreasonable); S. Daytona Rests., Inc. v. City of S. Daytona, 186 So.2d 78 (Fla. 1st DCA 1966) (affirming denial of injunctive relief where restaurant complained that liquor sales ordinance was capricious, a deprivation of property rights, and an unreasonable exercise of police powers, and reasoning that section 562.14, Florida Statutes, gives cities the power to regulate sale of alcoholic beverages).

The Pub does not directly challenge the liquor sales ordinance. Instead, the Pub challenges the annexation ordinance. It characterizes the annexation ordinance as a “callous zoning decision.” It argues that zoning case law applies, but fails to cite any cases where courts granted grandfather status or enjoined enforcement of an ordinance regulating the times liquor may be sold. The Pub cites Lewis v. City of Atl. Beach, 467 So.2d 751 (Fla. 1st DCA 1985). That case is inapplicable. There, the city enacted an ordinance barring drinking establishments within a certain distance from other drinking establishments. The ordinance provided grandfather status to drinking establishments already in violation of the distance provision. The court held that when the tavern’s ownership changed, it did not lose the nonconforming use grandfather status since the status was not abandoned. Id. at 754-55.

Pursuant to section 562.14(1), the Village had the authority to enact its ordinance regulating sale of alcohol. The Pub does not dispute that the Village followed the procedures for voluntary annexation provided for in section 171.044. Under section 171.062(1), once the property was annexed, the Pub had to comply with the liquor sales ordinance.

We therefore hold the trial court erred in granting grandfather status to the Pub for the sale of alcohol between the hours of 2:00 a.m. and 5:00 a.m. and reverse and remand for the entry of a declaratory judgment in favor of the Village.

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.

      . On April 20, 2010, approximately sixteen months after the Village Council adopted Ordinance No. 2008-10, appellee exercised its option to extend the lease for an additional five year term, through December 31, 2015.

      . On motions for rehearing, the court amended the operating hours to "2:00 a.m. and 5:00 a.m.”

      . To obtain a temporary injunction, the mov-ant must demonstrate "(1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest.” Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So.2d 226, 227 (Fla. 4th DCA 2002) (citation omitted).

      . A review of zoning cases reflects that grandfather status is a creation of the zoning ordinance. See, e.g., Lewis v. City of Atl. Beach, 467 So.2d 751 (Fla. 1st DCA 1985).


author: ALTENBERND, Judge.

text:
    In the Interest of S.D., a child. S.B., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-4782.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2012.
    Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellant.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee Department of Children and Family Services.
   ALTENBERND, Judge.

The Mother, S.B., appeals the order terminating her parental rights to her four-year-old child, S.D. At the termination hearing, it was undisputed that the Mother’s parental rights had been previously terminated as to three of S.D.’s half-siblings. Competent, substantial evidence supports the trial court’s finding that the Department of Children and Family Services (“DCF”) proved a ground for termination by clear and convincing evidence and that, termination was in the manifest best interest of S.D. See §§ 39.806(1)(i), 39.810, Fla. Stat. (2010); In re the Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995); C.L. v. Dep’t of Children & Family Servs., 943 So.2d 272, 273 (Fla. 3d DCA 2006). We, therefore, affirm.

Because DCF was required to prove only one ground for termination, we do not need to decide whether the trial court correctly relied on section 39.806(1)(£) as an alternative ground for termination. See § 39.802(4)(a), Fla. Stat. (2010); cf. A.H. v. Dep’t of Children & Families, 63 So.3d 874, 877 (Fla. 1st DCA 2011). Section 39.806(1)(Z) has an effective date of July 1, 2008, which means it became effective after the filing of the dependency proceeding but before the filing of the termination proceeding in this case. See Ch.2001-245, § 16, Laws of Fla.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.


text:
    Thomas R. HORTON, Petitioner, v. Grady JUDD, Sheriff of Polk County, Respondent.
    No. 2D11-4365.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2012.
    James Marion Moorman, Public Defender, and Debra L. Munchel, Assistant Public Defender, Bartow, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Thomas R. Horton, a criminal defendant in circuit court who was previously adjudicated incompetent to proceed to trial, filed a petition for writ of habeas corpus in this court seeking review of the order of the trial court committing him to the state hospital. Horton alleges that he is being illegally detained because he does not meet the criteria for involuntary commitment as outlined in section 916.13(1), Florida Statutes (2011). We previously granted the petition by order with directions that if the State did not initiate civil commitment proceedings, the trial court should release Horton on appropriate conditions pursuant to Florida Criminal Rule of Procedure 3.212(d). We write to explain our reasoning in this instance.

If there is an issue regarding a defendant’s competency, at least two mental health experts must examine the defendant to determine whether he is competent to proceed to trial. § 916.12(2). If a felony defendant is adjudged to be incompetent, section 916.13(1) sets forth the conditions that must be met before that defendant can be involuntarily committed. Among other things, it requires the court to find by clear and convincing evidence that “[tjhere is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.” § 916.13(l)(c).

Here, both appointed experts testified that it was unlikely that Horton could ever be restored to competency. In the order of involuntary commitment, the trial court found that a “witness testified that the Defendant might be restored to competency in the state hospital.” The finding that Horton “might” be restored to competency is neither supported by the evidence nor does it satisfy the statutory requirement of clear and convincing evidence that there be a “substantial probability” that the petitioner will regain competency in the foreseeable future. Accordingly, Horton’s commitment was not authorized by section 916.13(1). See Oren, 940 So.2d at 1273; Abreu-Gutierrez, 1 So.3d at 265-66. For this reason, we granted the petition for writ of habeas corpus.

Petition granted.

ALTENBERND, KELLY, and CRENSHAW, JJ., Concur.

      . Typically we would convert this habeas petition to a petition for writ of certiorari. See Oren v. Judd, 940 So.2d 1271, 1272 (Fla. 2d DCA 2006) (citing Patton v. State, 712 So.2d 1206 (Fla. 1st DCA 1998)); see also Abreu-Gutierrez v. James, 1 So.3d 262, 266 (Fla. 4th DCA 2009). Treating it as a petition for writ of certiorari rather than habeas corpus would avoid any problems that would arise if, during the pendency of the proceeding, the petitioner was transported outside of the territorial jurisdiction of this court for purposes of treatment. A challenge to an order of the trial court improperly committing a defendant for the purpose of restoring his competency may, however, be raised in a habeas proceeding. See, e.g., Graham v. Jenne, 837 So.2d 554, 555 (Fla. 4th DCA 2003). Because Horton's petition was not timely filed as a petition for writ of certiorari, we review it pursuant to our habeas jurisdiction.

      . One of the experts testified that it was possible that Horton could be restored to competency if there was some new type of treatment that had not been tried before, but that because of Horton's history of not responding and his inability to benefit from competency training, this was highly doubtful.


text:
    Martin JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-793.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Martin Jacobs, Indiantown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant argues that the postconviction court erred in denying his motion following an evidentiary hearing without making findings of fact and conclusions of law. The state concedes that remand is required. We agree and reverse and remand for the judge who presided over the evidentiary hearing to enter an order containing factual findings and legal conclusions. See Fla. R.Crim. P. 3.850(d); Dillbeck v. State, 882 So.2d 969, 973 (Fla.2004); Marshall v. State, 959 So.2d 1245 (Fla. 4th DCA 2007).

Reversed and, Remanded.

POLEN, GROSS and CONNER, JJ., concur.


text:
    Lyndin HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2498.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Carey Haughwout, Public Defender, and Susan D. Cline, 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.
   DAMOORGIAN, J.

Lyndin Howell appeals his judgment and sentence on the charge of failure of a sex offender to register. Howell raises two issues. First, Howell argues that he was deprived of his due process right to a neutral, detached presiding judge when the trial judge engaged in an ex-parte discussion with an assistant state attorney concerning the State’s motion in limine. Second, he asserts that the trial court reversibly erred by overruling his objection to the State arguing facts not in evidence. Finding merit to Howell’s first issue on appeal, we reverse and remand for a new trial, concluding that the trial court erred by engaging in an ex-parte communication in which the trial judge indicated how he would rule on the State’s motion in limine to preclude the defendant from claiming a mental health defense. Love v. State, 569 So.2d 807, 810 (Fla. 1st DCA 1990) (citing Livingston v. State, 441 So.2d 1083, 1085-86 (Fla.1983)) (Ex-parte communication between a trial judge and an assistant attorney general concerning a pending criminal case mandates reversal if the defendant can demonstrate that there was prejudice as a result of the improper communication.).

Our decision on the first issue renders moot the second issue, although for purposes of re-trial, we remind the State of its obligation to limit its closing argument to matters supported by the evidence presented at trial. See Hazelwood v. State, 658 So.2d 1241, 1243-44 (Fla. 4th DCA 1995) (“A prosecutor must confine his/her closing argument to evidence in the record and must not make comments which could not be reasonably inferred from the evidence.”).

Accordingly, we reverse and remand for a new trial. On remand, the case shall be reassigned to a different division judge.

Reversed and Remanded.

WARNER and CONNER, JJ., concur.


text:
    Sgt. Kim MAJOR, Petitioner, v. Joshua HELLER, Respondent.
    No. 4D11-3753.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Ron Vinogard of the Law Offices of Carman, Beauchamp & Sang, P.A., Boca Raton, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Sergeant Kim Major petitions this Court for a writ of certiorari following the circuit court’s denial of her motion for summary judgment based upon sovereign immunity grounds under section 768.29(9)(a), Florida Statutes (2011). We dismiss the petition. See Dep’t of Educ. v. Roe, 679 So.2d 756 (Fla.1996); TBE Group, Inc. v. Banerjee, 82 So.3d 1024, 2011 WL 3586189 (Fla. 4th DCA 2011).

We note that the Supreme Court of Florida has accepted discretionary jurisdiction of Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA 2010), rev. granted, 54 So.3d 973 (Fla.2010). As in TBE Group, Inc., we certify a question of great public importance:

Whether review of the denial of a motion for summary judgment, based on a claim of immunity as an agent of the state under section 768.28(9)(a) & 10(e), without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court?

Dismissed; question certified.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Trevor LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5034.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Trevor Lewis appeals his conviction and sentence for armed burglary of a dwelling, robbery with a firearm, and aggravated battery. He raises two issues on appeal. First, he argues that the trial court erred in allowing the admission of hearsay testimony. Second, he asserts error in the denial of his motion for judgment of acquittal. We reverse on the admission of hearsay testimony for reasons hereinafter explained, and find its admission was harmful and prejudicial. Our holding renders the second issue moot.

Lewis was charged by information with armed burglary of a dwelling (Count I), robbery with a firearm (Count II), and aggravated battery (Count III). The case proceeded to trial. The jury returned a guilty verdict on all three counts.

The details of the incident are not important to the resolution of the issue before us. The issue before us stems from the investigating officer’s testimony at trial. On direct examination, the officer testified that he received the name of a possible suspect from two non-testifying witnesses. Specifically, the officer was asked about canvassing the area after the incident. Defense counsel objected to the following portion of the officer’s testimony:

[State] Q: Did that turn anything up for you?
[Officer] A: It did. The room directly next door provided some very valuable information regarding the case.
[State] Q: Did you speak to a specific person in that room?
[Officer] A: I spoke to two people who were staying in that room.
[State] Q: Were they male or female? [Officer] A: Female.
[State] Q: And after speaking to those individuals did you get the name of a possible suspect?
[Officer] A: I did.

The officer further testified on direct that after talking to the witnesses on scene, he developed a photo line-up, and that Lewis was the target of the line-up. Defense counsel also objected to this testimony, arguing it was hearsay. The objection was overruled. In closing, the State articulated that Lewis’s name was obtained from the non-testifying witnesses.

Lewis claims that it was error for the trial court to allow the investigating officer’s testimony that Lewis became the target of the investigation after he interviewed the two non-testifying witnesses. He further contends this was inadmissible hearsay, and its admission was harmful and prejudicial. The State argues that the officer’s testimony referred only to the lead supplied by the testifying victims of the crimes, and it was defense counsel who revealed the names of the non-testifying witnesses from the scene during cross-examination of the officer. As such, the State argues any error was invited and harmless.

This Court has held that testimony similar to that elicited in this case is inadmissible hearsay. See Cedillo v. State, 949 So.2d 339, 341 (Fla. 4th DCA 2007) (holding that police officer’s testimony indicating he developed the defendant as a suspect after speaking with a non-testifying witness implied that the witness made accusatory statements against defendant, and therefore, was inadmissible hearsay). Here, the investigating officer testified on direct that he developed a suspect after speaking with two non-testifying witnesses. He further stated that from the name he received, he generated a photo line-up and that Lewis was the target. Such testimony constitutes error. See id.; see also Stokes v. State, 914 So.2d 514, 517 (Fla. 4th DCA 2005) (explaining that detective’s testimony stating defendant became a suspect after detective conducted a number of interviews with other people constituted inadmissible hearsay); Schaffer v. State, 769 So.2d 496, 498 (Fla. 4th DCA 2000) (“Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible.”).

Having concluded that the trial court erred, we next resolve whether the error was harmless. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (emphasis removed)).

Here, the State cannot make this showing. This case rested on witness credibility. Had the trial court sustained the hearsay objection to the officer’s testimony, a positive identification by the two victims, who both had prior convictions, would have been the only evidence of Lewis’s guilt. One of the victims was only sixty percent sure regarding her identification of Lewis because she was not wearing her glasses at the time of the incident. Lewis never admitted involvement in the crime, and he testified at trial that he was elsewhere on the night in question. Moreover, no physical evidence was recovered connecting Lewis to the offenses. Finally, the error was not invited where this testimony was elicited on direct examination by the State. See Cordoba v. Rodriguez, 939 So.2d 319, 323 (Fla. 4th DCA 2006) (“ ‘[UJnder the invited error-doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.’ ”) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)) The evidence taken as a whole leads us to conclude that the error was not harmless.

Accordingly, we reverse Lewis’s s conviction and sentence and remand for a new trial.

Reversed and Remanded.

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


text:
    Timothy A. NELSON, Appellant, v. Christal CORREA, Appellee.
    No. 4D11-1657.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Timothy A. Nelson, Milton, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

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


author: BENTON, C.J.

text:
    Glenn TOURELLE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Cuvee Wine & Bistro, LLC., Appellees.
    No. 1D11-2030.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.

      Glenn Tourelle, pro se, Appellant,
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   BENTON, C.J.

Glenn Tourelle appeals a decision of the Unemployment Appeals Commission (UAC) affirming an appeals referee’s determination that Mr. Tourelle was overpaid $787 in unemployment benefits. Because he failed to establish eligibility to receive benefits for the periods at issue, we affirm.

After he lost his job, Mr. Tourelle filed a claim for unemployment benefits in 2008. Despite subsequent employment on a part-time basis from December 8, 2009, through April 20, 2010, he received certain benefits based on his reports of reduced weekly earnings. “An individual is ‘partially unemployed’ in any week of less than full-time work if the earned income payable to him or her for that week is less than his or her weekly benefit amount.” § 443.036(43)(a), Fla. Stat. (2009).

In November of 2010, the Agency for Workforce Innovation (AWI) notified him that payroll information submitted by his part-time employer did not agree with the earnings information he had reported for certain weeks between the dates of February 6, 2010, and April 24, 2010, and that it appeared he had been overpaid unemployment benefits. Both AWI notices stated that Mr. Tourelle had been advised when filing his initial claim “to report all earnings in the week they are earned.”

Mr. Tourelle responded that he had difficulty reporting his earnings because the bi-weekly pay period utilized by the part-time employer did not correspond with the unemployment compensation benefits weekly reporting period, and that he “continually had to estimate” his earnings. He submitted pay stubs reflecting his bi-weekly earnings for January 20 through March 30, 2010. When AWI subsequently issued notices of determination, indicating he was required to repay a total overpayment of $788 ($638 in extended benefits and $150 in stimulus benefits), Mr. Tourelle appealed the determination.

During the hearing before the appeals referee, a representative of the part-time employer testified that the employer’s submission correctly set forth Mr. Tourelle’s pay. When asked if the employer’s exhibit correctly indicated his gross pay for the period of March 31 through April 24, 2010 (the period for which Mr. Tourelle had not submitted pay stubs), Mr. Tourelle testified that he did not have those pay stubs and did not know how many hours he had worked during those pay periods, but had no reason to disagree with the amounts. He also testified that he did the best he could to report his earnings accurately, but again explained that the employer’s pay period was different from the reporting period for unemployment benefits.

Because the employer and Mr. Tourelle only provided gross earned income for biweekly periods (beginning on Wednesday and ending on Tuesday), the appeals referee divided the biweekly earnings in half to determine weekly earnings. Based on these calculated amounts, the appeals referee found that Mr. Tourelle received earned income in excess of his weekly benefit amount for several weeks and had been overpaid $787 in benefits as a result. Mr. Tourelle timely appealed the decision to the UAC, which affirmed the decision of the appeals referee.

“Each eligible individual who is partially unemployed in any week is paid for the week a benefit equal to her or his weekly benefit less that part of the earned income, if any, payable to her or him for the week which is in excess of 8 times the federal hourly minimum wage.” § 443.111(4)(b), Fla. Stat. (2009). “Week” means “a period of 7 consecutive days as defined in the rules of the Agency for Workforce Innovation.” § 443.036(45), Fla. Stat. (2009). “Week” is further defined as “the seven calendar day period from Sunday through Saturday.” Fla. Admin. Code R. 60BB-3.011(16).

Mr. Tourelle had the burden to establish he was entitled to benefits based on his earnings for weekly periods covering Sunday through Saturday, as set forth by rule, for each benefit period at issue. The general rule is that the claimant has the burden to prove eligibility for unemployment benefits. See Chapman v. Fla. Unemployment Appeals Comm’n, 15 So.3d 716, 721 (Fla. 1st DCA 2009) (noting the claimant has the burden to prove eligibility for benefits, including availability for work); His Kids Daycare v. Fla. Unemployment Appeals Comm’n, 904 So.2d 477, 479 (Fla. 1st DCA 2005) (“A claimant has the burden to prove he or she has met the statutory eligibility requirements for unemployment compensation”).

Mr. Tourelle asserted only that he had difficulty accurately reporting his earnings for weekly periods covering Sunday through Saturday because the part-time employer utilized a different period for calculating his paychecks. He did not testify before the appeals referee (although he does assert on appeal) that there were many weeks that he worked, yet earned less than his weekly benefit amount. As a technical matter, the issue is not even preserved. See Jaffe v. Endure-A-Life Time Awning Sales, Inc., 98 So.2d 77, 79 (Fla.1957).

A claimant “must report in the manner prescribed by the Agency for Workforce Innovation” and must “continue to report at least biweekly ... to attest to the fact that she or he is able and available for work, has not refused suitable work, is seeking work, and, if she or he has worked, to report earnings from that work.” § 443.111(l)(b), Fla. Stat. (2009). Section 443.091(1), Florida Statutes (2009), provides that an unemployed individual is eligible to receive weekly benefits only if he has made a claim for benefits for that week in accordance with the rules adopted by the AWI. Because Mr. Tourelle failed to report his weekly earnings in the manner required by statute and rule (or to prove that he would have been entitled to receive benefits for any period at issue had his earnings been correctly reported), we approve the order on appeal.

Affirmed.

VAN NORTWTCK and SWANSON, JJ., concur.


text:
    Daniel P. GARRETT, Appellant, v. STATE of Florida, Appellee. Benjamin D. Garrett, Appellant, v. State of Florida, Appellee.
    Nos. 1D11-1867, 1D11-2296.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellants.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In these consolidated appeals, Appellants, Daniel and Benjamin Garrett, challenge the trial court’s order denying their motion to dismiss the charges of operating as a pawnbroker without a license in violation of section 539.001, Florida Statutes. Finding no error, we affirm.

It is undisputed that Appellants, whose license to engage in the pawnbroker business expired in June 2010, failed to renew them license. The State charged them under sections 539.001(3)(a), (3)(c), and (17)(a). Appellants moved to dismiss, arguing that they could not be charged with a third-degree felony under section 539.001(17)(a) because they held a valid license at one time. The trial court rejected this argument and denied the motion to dismiss. These appeals followed.

A trial court’s ruling on a motion to dismiss made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is reviewable de novo. State v. Greene, 43 So.3d 825, 825 (Fla. 1st DCA 2010). An issue of statutory interpretation, which this case involves, is also reviewable de novo. Clines v. State, 912 So.2d 550, 555 (Fla.2005).

The Florida Pawnbroking Act provides in part that a “person may not engage in business as a pawnbroker unless the person has a valid license issued by the agency.” § 539.001(3)(a), Fla. Stat. (2009). Each license is valid for a one-year period unless it is earlier relinquished, suspended, or revoked. § 539.001(3)(c), Fla. Stat. (2009). Each license must be renewed annually and each licensee must initially, and annually thereafter, pay a license fee of $300 for each license held. Id. Section 539.001(7) sets forth the administrative and civil penalties for pawnbrokers who violate the statutory requirements. Section 539.001(17)(a), the provision at issue in these appeals, provides that “[a]ny person who engages in business as a pawnbroker without first securing a license commits a felony of the third degree.... ” Appellants contend that this provision does not apply to pawnbrokers who fail to renew their license because, in those instances, a license was first secured. Our reading of the statute as a whole refutes this interpretation. See Clines, 912 So.2d at 557 (noting that all parts of a statute must be read together in order to achieve a consistent whole).

Section 539.001(3)(a) makes clear that a person may not engage in the pawnbroker business without a valid license. Although Appellants may have initially secured a license, they allowed that license to expire and continued to operate in violation of the statute. Appellants’ attempt to create a distinction between an initial license and subsequent renewals overlooks the fact that simply because they satisfied the statute’s eligibility requirements in the past does not mean that their license would have been automatically renewed. Under the statute, Appellants’ act of engaging in the pawnbroker business without renewing their license is no different from a situation where someone engages in the business without ever having been granted a license. In either instance, the person would be engaging in the pawnbroker business “without first securing a license.”

While Appellants also argue that the penalties set forth in section 539.001(7) are the only penalties that pertain to a pawnbroker who fails to renew his or her license, nothing in the statute provides for such. Instead, subsection (7) expressly sets forth that the “remedies provided for in this subsection shall be in addition to any other remedy provided by law.” The criminal penalty provided for in subsection (17) is applicable in this case because Appellants engaged in the pawnbroker business without first securing a license. For this reason, the trial court did not err in denying Appellants’ motion.

Accordingly, we AFFIRM.

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    Thomas MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5842.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Thomas Martin, 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 or about April 14, 2011, in Duval County Circuit Court case number 16-2006-CF-17700, 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. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

VAN NORTWICK, LEWIS, and SWANSON, JJ„ concur.


text:
    Sherman HINSON, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D11-6594.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Sherman Hinson, pro se, Appellant.
    Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellee..
   PER CURIAM.

DISMISSED as premature, without prejudice to appellant’s right to seek review upon rendition of an appealable final order.

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


author: CASANUEVA, Judge.

text:
    Joseph AGATE and Janet Agate, his wife, Appellants, v. Ronald E. CLAMPITT, Appellee.
    No. 2D11-581.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2012.

      Thomas H. McGowan, St. Petersburg, for Appellants.
    John R. Hightower, Jr., and Katie Brin-son Hinton of McIntyre, Panzarella, Tha-nasides, Hoffman, Bringgold & Todd, PL, Tampa, for Appellee.
   CASANUEVA, Judge.

Beginning in 1996, Joseph and Janet Agate transferred various installments of money to Ronald Clampitt based on his assertion that as a mortgage broker he would use this money to fund mortgages. In return, they would reap the benefit by receiving the interest to be generated from the mortgagors’ monthly payments. Unfortunately, they did not memorialize this arrangement in writing. When the returns did not amount to what Mr. Clampitt had led them to expect, Mr. and Mrs. Agate sued him in 2004. Their complaint contained seven counts, sounding in various theories. On the eve of trial, Mr. and Mrs. Agate moved to amend their complaint to add a count for quantum meruit. The trial court denied amendment to the complaint, granted Mr. Clampitt’s motion to dismiss the entire complaint on the basis of a Statute of Frauds defense, and entered a final judgment of dismissal with prejudice. The Agates now appeal the final judgment, raising two issues: that the trial court erred in applying the Statute of Frauds defense to all seven counts and in denying them leave to amend their complaint to add a count for quantum meruit. We reverse, concluding that the Statute of Frauds is inapplicable to at least one of the seven counts of the complaint. Because we reverse on this basis, we do not reach the merits of the Agates’ second issue, but it should be reconsidered on remand.

The Agates claim that the trial court erred in applying the Statute of Frauds to count three that asserted a violation of section 494.0025, Florida Statutes (1996). We agree. Section 494.0025 bars a person from acting as a mortgage broker or lender without holding a state license to do so. We fail to see how the Statute of Frauds would bar this claim against Mr. Clampitt because any licensing requirement imposed by the State of Florida would not require a writing between the Agates and him.

We further note that Mr. Clampitt relies upon section 687.0304(2), Florida Statutes (1995), to support his Statute of Frauds defense against what he describes as the parties’ credit agreement. It is true that this section requires that to be enforceable, a credit agreement must be in writing. Specifically the statute provides that “[a] debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” The plain language of this statute requires a writing if the debtor wishes to maintain an action on a credit agreement. The Agates are not the debtors trying to enforce a credit agreement, they are the creditors claiming that Mr. Clampitt is indebted to them. In their creditor capacity, this statute is not applicable to them. Cf. Siegel v. Rowe, 71 So.3d 205, 213 (Fla. 2d DCA 2011) (noting that the trial court erred in ruling that the Statute of Frauds barred the plaintiffs claim for money lent even in the absence of a signed loan agreement because claim was for a direct promise to pay, not a promise to pay another’s debt, and thus “was not within the purview of the Statute of Frauds”).

Although not characterized as such, the trial court’s final judgment is akin to a judgment on the pleadings and the trial court used section 687.0304(2) as the basis for its blanket dismissal. On remand, the trial court should reconsider its decision barring the remaining counts on the basis of this section.

Because we are reversing on the bases described above, and the cause is being remanded for further proceedings, there is no imminent trial date set. Thus the Agates should be permitted to amend their pleadings to add a claim of quantum meruit.

The test of whether an amendment offered by a party sets forth a “new cause of action” is not whether the cause of action stated in the amended pleading is identical to that stated in the original. Rather, the test is whether the pleading as amended is based upon the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce his original claim.

Turner v. Trade-Mor, Inc., 252 So.2d 383, 384 (Fla. 4th DCA 1971). The Agates wish to claim quantum meruit based on the same conduct and transactions they had with Mr. Clampitt. Therefore, Mr. Clam-pitt would not be unduly prejudiced by allowing such amendment at this time and the Agates have not abused the privilege. See Kimball v. Publix Super Markets, Inc., 901 So.2d 293, 296 (Fla. 2d DCA 2005) (“Refusal to allow an amendment is an abuse of the trial court’s discretion ‘unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.’ State Farm Fire & Cas. Co. v. Fleet Fin. Corp., 724 So.2d 1218, 1219 (Fla. 5th DCA 1998).”).

Final judgment of dismissal reversed and remanded for further proceedings.

WALLACE and LaROSE, JJ., Concur.

      . The smallest transfer was $4000, the largest was $45,000, and the aggregate amount reached $321,000.

      . This does not mean to say that there may be other theories which could bar this claim. We do not reach that issue.

      . As noted above, our holding is narrow and this count may be subject to dismissal or summary judgment on other grounds that we do not address here.

      . We caution again that by allowing this amendment in this instance, we make no comment on its merits.


text:
    Lillian ARNOLD, Appellant, v. Robert E. ARNOLD, Appellee.
    No. 2D09-2664.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2012.
    Mark A. Neumaier, Tampa, for Appellant.
    David J. Plante and Danielle M. DuBow of The Plante Law Group, PLC, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007) (holding that the lack of findings supporting an equitable distribution of marital property was not reversible error where the appellant failed to provide a transcript of the hearing or an acceptable substitute).

KELLY, LaROSE, and KHOUZAM, JJ., Concur.


author: KELLY, Judge.

text:
    Edward Thomas SLOVER, Appellant, v. Phyllis MEYER, Appellee.
    No. 2D10-6074.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 2012.

      William E. McGrew of The Law Firm of Sam R. Assini, LLC, Cape Coral, for Appellant.
    Mary C. Evans of Fried & Fried, P.A., Fort Myers, for Appellee.
   KELLY, Judge.

This appeal arises out of a dispute between Edward Thomas Slover, the natural parent, and Phyllis Meyer, the maternal step-grandmother, over custody of Mr. Slover’s child. Because the trial court used an incorrect legal standard in denying Mr. Slover’s petition to modify custody, we reverse.

Mr. Slover and the child’s mother never married. Shortly after the child’s birth, the mother left the state of Colorado, where the parties had resided, taking the child with her. When the child was approximately three years old, the mother died. Thereafter, Mr. Slover initiated proceedings in Colorado seeking custody of the child who at that time was residing in Florida with Ms. Meyer. Largely due to Mr. Slover’s issues with substance abuse, the parties entered into a parenting plan that placed the child in Ms. Meyer’s “legal and physical custody.” The plan provided that the parties would share in all decisions regarding the child and allowed Mr. Slover supervised visitation until he was drug free for one year and unsupervised visitation thereafter. Mr. Slover complied with the plan and began exercising unsupervised visitation with the child, as well as sharing summer and holiday vacations.

Approximately two years later, Mr. Slo-ver, who was now living in Alabama, initiated proceedings in Lee County seeking custody of his child. Ultimately he filed an amended petition to modify custody alleging a substantial change in circumstances since entry of the Colorado order adopting the parenting plan, and that a change in custody was in the child’s best interest. Mr. Slover stated that in addition to being drug free for a number of years, he is in a stable marriage and employed, and that he owns a home in Alabama suitable for raising his child.

After a hearing, the trial court denied Mr. Slover’s petition. The court found that both Mr. Slover and Ms. Meyer were fit “parents,” that there was no evidence that Mr. Slover ever abused, abandoned, or neglected the child, and that Mr. Slo-ver had complied with the parenting agreement and was in recovery. The court determined that the standard for modifying an existing custody order was a substantial change in circumstances not contemplated at the time of the final judgment and that a change in custody would be in the child’s best interest.

Mr. Slover contends that the trial court applied the wrong legal standard in denying his petition. We agree.

When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, ... custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child.

In re Guardianship of D.A.McW., 460 So.2d 368, 369-70 (Fla.1984); see Richardson v. Richardson, 766 So.2d 1036, 1039 (Fla.2000) (holding that where a parent seeks to modify a third party custody award the test to be applied is whether the parent is fit and whether a change in custody will be detrimental to the child).

Here, there is no evidence that Mr. Slover waived his parental rights or that his parental rights were terminated by ■virtue of the parenting plan. In fact, the court specifically found that Mr. Slover retained his parental rights. Thus, the only issues to be' determined by the court were whether Mr. Slover was a fit parent and whether it would be detrimental to the child to change custody. Although the trial court found that Mr. Slover was fit, we cannot determine whether the court properly considered whether placing the child in his custody would be detrimental to her welfare. See Bateman v. Johnson, 818 So.2d 569, 571 (Fla. 2d DCA 2002) (defining detriment as “more than the normal trauma caused to a child by uprooting him from familiar surroundings such as often occurs by reason of divorce, death of a parent or adoption ... the change in custody would have to be likely to produce mental, physical, or emotional harm of a lasting nature”) (citations omitted).

Because the trial court applied an erroneous legal standard in denying Mr. Slo-ver’s petition, we reverse the order and remand for reconsideration under the proper standard. See Hammond v. Howard, 828 So.2d 476 (Fla. 5th DCA 2002) (reversing an order granting temporary custody of a child to the maternal grandmother and remanding for reconsideration applying the parental preference standard instead of the substantial change in circumstances/best interest standard).

Reversed and remanded with instructions.

LaROSE and KHOUZAM, JJ., Concur.


text:
    Carlos Mario BARRENECHE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3042.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2012.
    Lloyd L. Vipperman, Jr., and John Ter-rezza, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted 81 So.3d 414, 2012 WL 285811 (Fla.2012); Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011); State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011).

DAVIS, THOMAS, and RAY, JJ., concur.


text:
    Steven Lopez BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2772.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2012.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his convictions for count II, aggravated battery with a deadly weapon, and count IV, aggravated assault with a firearm. Appellant raises three issues on appeal, only one of which merits discussion. Appellant asserts that the amended judgment and sentence improperly reflects that he was convicted in count II of aggravated battery with great bodily harm, a first-degree felony. Following trial, the jury found Appellant guilty of the offense of aggravated battery with a deadly weapon and the trial court correctly, orally pronounced Appellant guilty of aggravated battery with a deadly weapon, a second-degree felony. However, there is a scrivener’s error in the written judgment and sentence reflecting that Appellant was adjudicated guilty and sentenced for the offense of aggravated battery with great bodily harm. Therefore, we reverse and remand the case as to count II only for the trial court to enter a corrected judgment and sentence consistent with its oral pronouncement reflecting that Appellant was adjudicated guilty of the offense of aggravated battery with a deadly weapon. We otherwise affirm Appellant’s judgments and sentences.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

PADOVANO, LEWIS, and CLARK, JJ., concur.